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08/26/88 Porfirio Diaz, v. Chicago Transit Authority

August 26, 1988

PORFIRIO DIAZ, PLAINTIFF-APPELLEE

v.

CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLANT (ROBERT WARD, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

528 N.E.2d 398, 174 Ill. App. 3d 396, 123 Ill. Dec. 853 1988.IL.1315

Appeal from the Circuit Court of Cook County; the Hon. Dean M. Trafelet, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., and SULLIVAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

This action was brought by Porfirio Diaz to recover damages for personal injuries he sustained when he was struck by a car driven by defendant Robert Ward. Diaz joined the Chicago Transit Authority as a defendant, alleging, inter alia, that the CTA bus driver, Gant Kacija, was negligent in allowing Diaz to alight from the CTA bus at other than a normal bus stop and that as a result Diaz was struck by defendant Ward's car. The jury rendered a verdict for Diaz in the amount of $800,000, apportioning 78% of the negligence to Diaz, 20% of the negligence to the CTA and 2% of the negligence to Ward. On appeal, the CTA seeks reversal of the jury's verdict and judgment and a new trial on the issues of liability and damages. Alternatively, the CTA seeks a new trial only on the issue of damages, or an order of remittitur. We affirm.

The evidence at trial revealed the following. On August 24, 1980, Porfirio Diaz was a passenger on a westbound CTA bus on Archer Avenue driven by Gant Kacija. Diaz, who did not speak English, gestured to Kacija to stop the bus across from the Valley View Restaurant on Archer Avenue, rather than at the regular bus stop. Kacija complied, stopping the bus on an angle, approximately three feet from the regular bus stop and also three feet from the curb. Diaz got off the bus, stepped into the street area of Archer Avenue and crossed in front of the bus. Because the bus was stopped at an angle, it obstructed Diaz' view to his left and he could not see whether there was any oncoming westbound traffic. The bus driver indicated with a hand signal to Diaz that it was safe for him to continue across Archer Avenue. Diaz thereupon proceeded from in front of the bus to cross Archer Avenue into the lane of oncoming traffic where he was struck by Ward's car. The CTA bus was stationary when Diaz was struck.

Defendant CTA first contends that there was no evidence that the CTA caused or contributed to Diaz' injuries and that the jury's verdict against the CTA should therefore be reversed as against the manifest weight of the evidence. A reviewing court will not reverse a jury's verdict unless it is contrary to the manifest weight of the evidence. (Waterford v. Halloway (1986), 142 Ill. App. 3d 668, 676, 491 N.E.2d 1199.) The trial record is reviewed by the reviewing court in a light most favorable to the appellee and a reviewing court may not, in drawing reasonable inferences from the facts, substitute its judgment for that of the jury. (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 458 N.E.2d 530.) A reviewing court must also consider that the jury saw, heard and determined the credibility of the witnesses and weighed the arguments of counsel, and that the trial court, in its sound discretion, denied the motion for a new trial. (Berner v. Kielnik (1983), 117 Ill. App. 3d 419, 453 N.E.2d 729.) The testimony revealed that the CTA bus driver stopped and allowed Diaz to alight from the bus three feet from the regular bus stop and also three feet from the curb and that Diaz waited in front of the bus until the CTA bus driver signalled for him to continue from in front of the bus to cross the street. We cannot say that the verdict of the jury, which observed the witnesses and heard their testimony, was against the manifest weight of the evidence.

The CTA next contends that after Diaz had been discharged from the bus onto the street, Diaz could have, and reasonably should have, walked safely to the curb instead of crossing in front of the bus across the street, and for this reason, the CTA contends, the jury's verdict against the CTA must be reversed. We disagree. Diaz chose to remain in the street and, with the bus driver's assistance, he attempted to cross Archer Avenue to the farther curb instead of the nearer curb. The jury after weighing this evidence accordingly apportioned 78% of the negligence which caused Diaz' injuries to Diaz. We find no basis upon which to disturb this apportionment by the jury.

We also find no merit in the CTA's next argument that the CTA should not be held liable because its conduct was not the proximate cause of Diaz' injuries. The CTA contends that its conduct did nothing more than create a condition which made Diaz' injury possible by the subsequent negligence of Ward, the driver of the car that struck Diaz, which was an unforeseen intervening cause of Diaz' injury. The CTA relies on the holding of Fultz v. Myers (1972), 5 Ill. App. 3d 230, 282 N.E.2d 488, that an act which merely creates a condition that makes plaintiff's injury possible by the subsequent independent act of a third party is not the proximate cause of plaintiff's injury. This argument was advanced by the defendant in Shanowat v. Checker Taxicab Co. (1964), 48 Ill. App. 2d 81, 87, 198 N.E.2d 573, but was rejected by the court, which stated:

"Defendant then argues that a carrier by taxicab is not liable unless the act or omission charged proximately causes an injury that is reasonably to be anticipated and that it is not sufficient for the act or omission to constitute merely a condition through which injury can be caused by an independent act of the injured person or of the third party. We believe that it was for the jury to determine, as a question of fact, whether the negligence of the taxi driver constituted only a condition by which the injuries were made possible or whether, because the subsequent independent act of Mrs. Sanchez in passing the halted cab was or could be found to be foreseeable, the driver's negligence was the proximate cause of the injuries."

Whether the conduct of the CTA bus driver was the proximate cause of Diaz' injury was a question of fact within the province of the jury and we will not disturb its determination.

The CTA's next argument for reversal is that the jury's apportionment of 20% of the negligence to the CTA and 2% to defendant Ward was against the manifest weight of the evidence. Again, questions of negligence, due care and proximate cause are ordinarily questions of fact for the jury's determination. Questions which cause reasonable men to arrive at different answers should not be determined as a matter of law. The debatable quality of issues such as negligence and proximate cause, and the fact that fair-minded men might reach different Conclusions, emphasize the appropriateness and necessity of leaving such questions to the fact finders. The jury is the tribunal in our legal system which decides such issues. To withdraw such questions from the jury is to usurp its function. Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84.

The CTA contends that "it is clear that defendant Ward was far more negligent than the CTA." The facts do not support this contention. Diaz waited in front of the CTA bus and did not continue across the street until the bus driver indicated to him that it was safe for him to do so. While the bus driver should have reasonably foreseen that Diaz could be struck by Ward's car, Ward, who did not know that Diaz was in front of the bus, had little reason to foresee that Diaz would emerge into the path of Ward's oncoming car. We find no inconsistency in the jury's apportionment of the negligence.

The CTA next contends that the trial court erred in giving the following jury instructions to the jury:

"At the time of the occurrence in question, the defendant, Chicago Transit Authority, was a common carrier.

A common carrier is not a guarantor of its passengers' safety but it has a duty to its passengers to use the highest degree of care consistent with the mode of conveyance used in the practical operation of its business as a common carrier by bus.

In selecting a place for the plaintiff to alight from its vehicle, it was the duty of the defendant, Chicago Transit Authority, as a common carrier, to exercise the highest degree of care consistent with the mode of conveyance used in the practical operation of its business as a common carrier by bus."

The CTA maintains that the giving of these instructions on the highest degree of care misinformed the jury of the duty of care the CTA owed Diaz, made it impossible for the CTA to receive a fair trial and, further, was not cured by the ...


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