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06/28/88 Mary Robles, As Adm'r of v. Chicago Transit Authority

June 28, 1988

MARY ROBLES, AS ADM'R OF THE ESTATE OF RALPH ROBLES, DECEASED, PLAINTIFF-APPELLANT

v.

CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

527 N.E.2d 361, 173 Ill. App. 3d 46, 122 Ill. Dec. 863 1988.IL.1009

Appeal from the Circuit Court of Cook County; the Hon. Gerald L. Sbarbaro, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

This action was brought to recover damages incurred as a result of the alleged negligence of defendant Ernest Brown in operating a Chicago Transit Authority bus and the alleged negligence of defendant CTA as the owner of the bus and employer of Brown. The trial court directed verdicts in favor of defendants on counts II and IV of plaintiff's second amended complaint, and the jury returned a verdict in favor of the defendants on the remaining counts. Plaintiff appeals, raising the following issues: (1) whether the trial court erred in denying plaintiff's motion for judgment notwithstanding the verdict and her motion for a new trial; (2) whether the trial court erred in directing verdicts for the defendants on counts II and IV; (3) whether the trial court erred in refusing to permit plaintiff to call Donald Corbin as an adverse witness in rebuttal; (4) whether the trial court submitted an improper burden of proof instruction to the jury; (5) whether the trial court abused its discretion in limiting the testimony of plaintiff's expert; and (6) whether plaintiff was denied a fair trial by the trial court's rulings on numerous procedural and evidentiary questions.

On December 17, 1980, the decedent, Ralph Robles, was struck by a CTA bus driven by defendant, Ernest Brown. Plaintiff, Mary Robles, as administrator of decedent's estate, brought wrongful death and survival actions based on specific negligence and res ipsa loquitur against defendants. A previous action resulted in a mistrial.

A review of the record reveals that the following evidence was adduced at trial. Michael Ramierez, Mark Perez, Richard Pedraza and Russell Olmos, friends of the decedent, were riding on the bus with him at the time of his accident. Each testified that they boarded a bus at 103rd Street and Ewing, to avoid the crowd waiting at the bus stop at 102nd and Ewing. When the bus stopped at 102nd and Ewing, a large number of people boarded and Robles, Ramierez, Pedraza and Olmos decided to alight. Their reason for so doing is not clear from the testimony, but it is suggested that one of the group saw someone at the bus stop with whom he wanted to speak. Pedraza exited the bus in front of Robles, and Ramierez and Olmos were behind him. All three testified that the doors were open as Robles stepped out of the bus, but before he was safely off it began to accelerate. Robles fell to the ground and was run over. They also testified that passengers were screaming, but the bus continued until the end of the block before stopping.

In addition, Ramierez and Olmos both testified that after Robles' accident they reached up to pull the emergency knob to stop the bus, but the knob was missing. On cross-examination Perez testified that he had heard that the others got off the bus in order to talk with someone about a fight over a girl's stolen necklace.

Nicholas Vega was waiting at the bus stop at 102nd and Ewing when he saw Robles exiting the bus through the rear doors. As Robles tried to leave the bus it started to move and his feet caught under the tire, pulling his body underneath the bus. Vega testified that the rear doors of the bus were open while it was moving. He also admitted having heard rumors about a fight or argument earlier in the day regarding a girl's stolen necklace.

Gloria Arroyo boarded the bus at 102nd Street and saw a number of people exit through the rear doors ahead of Robles. She stated that she did not see the doors close while these people were exiting. As Robles was about to step off the bus it began moving, his jacket became caught and he was run over.

Ernest Brown, the driver of the bus, testified that a loud and rowdy group of students boarded his bus at 102nd and Ewing. They entered through the front door of the bus, which he opened using a control handle located to the left side of the driver. Before pulling away from the bus stop he checked the mirror located to the right of the driver on the outside of the bus and saw that the rear doors were not open. As Brown proceeded north and the front end of the bus reached the intersection he lost acceleration, heard the interlock plunger hit the gas pedal and felt a bump, "like hitting a hole in the street." The interlock is a plunger that locks the gas pedal, preventing the driver from accelerating when the rear doors of the bus are unlocked. The acceleration returned, and Brown continued to midblock, until a passenger touched him on the shoulder and told him that there had been an accident. He testified that losing acceleration as he did meant that someone had pulled the emergency lever in the back of the bus, and that when the acceleration returned, someone had pushed the emergency lever back up.

The parties stipulated that at the taking of his deposition, Brown testified that when he stopped the bus at 102nd Street a red light on the dashboard was on, indicating that the front door was open. However, testimony at trial revealed that some buses are equipped with two lights, one for each door, and other buses have only one light, which indicates when the rear doors are unlocked. The bus Brown was driving at the time of the accident had only one light, for the rear doors. At trial, Brown testified that there were no lights on as people boarded the bus.

Eva Sanchez was sitting in the second seat behind the rear door of the bus on the day of the accident. She testified that a number of high school students boarded the bus at 102nd and Ewing and that the bus filled up. As the front doors closed and the bus started there was a commotion; one boy pulled a knife while another boy ran away from him, pulled the emergency knob, pushed the rear doors open and jumped off the bus. A few seconds later Sanchez felt the bus go over a bump, and a few seconds after that the bus stopped. She testified that when the bus left the bus stop the back doors were closed and that the bus had travelled through the intersection before the boy pulled the emergency ball and jumped off.

Earl Jones, a CTA garage foreman, testified that the bus in question had been inspected on November 22, 1980, approximately three weeks prior to the accident, and there was no indication at that time of a problem with the interlock system. An inspection completed on December 22, 1980, five days after the accident, also failed to find any problem with the rear doors. Jones also testified that if the interlock system was working properly, "there is no way the driver could depress the gas pedal and move the bus" while the rear door was open, unlocked, or if the emergency handle was pulled.

Donald Corbin, a CTA supervisor, arrived at the scene shortly after the accident. Corbin testified that Brown told him that he had lost power and the interlock system had come on, and that as he pulled away from the bus stop and went into the intersection, he felt a bump and his power came back. Brown also told him that someone had "pulled the emergency knob." Corbin wrote in his report that Brown said the accident happened in midblock, where the bus was stopped when Corbin arrived at the scene, but at trial Corbin testified that he had made a misstatement in his report and should have written "mid-intersection" rather than "mid-block."

The trial court directed verdicts in favor of defendants on counts II and IV of plaintiff's second amended complaint, which are wrongful death and survival actions based on res ipsa, and the jury returned a verdict for defendants on the remaining counts. The trial court denied plaintiff's post-trial motions, and she appeals. I

Judgment notwithstanding the verdict should be granted only when the evidence and reasonable inferences therefrom, when viewed in a light most favorable to the opponent, so overwhelmingly favor the movant that the jury's verdict cannot stand. (Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Plaintiff contends that most of the witnesses testified that the accident occurred as she described, specifically that the bus was stopped when Robles attempted to exit through the rear doors and that it started moving while the rear doors were open. She further argues that Eva Sanchez gave "inherently inconsistent and unreliable testimony," and claims that "[while] weighing credibility is certainly within the province of the jury, it is not permissible to totally disregard and totally ignore such a large bulk of evidence as presented on behalf of Plaintiff." The defense responds that the jury resolved the conflicting testimony in favor of defendants, and its verdict was not unreasonable, arbitrary or palpably erroneous. Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 553, 437 N.E.2d 872.

Plaintiff also maintains that the trial Judge should have ordered a new trial, because the jury's verdict was against the manifest weight of the evidence. Defendants contend that the jury's verdict was supported by the testimony of Sanchez and Brown, and the verdict should not be disturbed on ...


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