Schneiderman v. Interstate Transit Lines, Inc.

• Decision Date: 21 May 1945
• Docket Number: Gen. No. 43216.
• Citation: 326 Ill.App. 1,60 N.E.2d 908
• Parties: SCHNEIDERMAN v. INTERSTATE TRANSIT LINES, Inc.
• Court: United States Appellate Court of Illinois

326 Ill.App. 1

60 N.E.2d 908

SCHNEIDERMAN

v.INTERSTATE TRANSIT LINES, Inc.

Gen. No. 43216.

Appellate Court of Illinois, First District, First Division.

March 26, 1945.

Rehearing Denied May 21, 1945.

Appeal from Superior Court, Cook County; John F. Bolton, Judge.

Action by Jack Schneiderman against Interstate Transit Lines, Inc., for personal injuries resulting from a collision between automobile driven by plaintiff and defendant's bus. From a judgment for plaintiff, defendant appeals.

Reversed.Drennan J. Slater, of Chicago, and Thomas F. Hamer, of Kearney, Neb., for appellant.

Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.

NIEMEYER, Presiding Justice.

Defendant appeals from a judgment for $100,000 entered in an action for personal injuries sustained by plaintiff as the result of a collision between the automobile driven by plaintiff and defendant's interstate passenger bus traveling from Omaha to Chicago.

The collision occurred at the intersection of Madison street and Oak Park avenue in the village of Oak Park at approximately 5:20 a. m., November 26, 1941. Oak Park avenue runs north and south and Madison street extends east and west; Oak Park avenue north of the intersection and Madison street west of the intersection are each 46 feet in width from curb to curb; south of the intersection the width of Oak Park is reduced to 38 feet and east of the intersection Madison is widened to 75 feet from curb to curb; Madison street and the intersection were paved with brick, which had become worn; Oak Park avenue to the north was paved with asphalt; there were two street car tracks in the center of Madison street; the southwest corner of the intersection was improved by a two-story brick building, extending to the building line on each street; on the northwest corner was a vacant lot 41 feet in width in which used cars were stored by the automobile agency occupying the one-story brick building immediately to the west; this building abutted the building line, which was 16 1/2 feet north of the curb; at the time of the accident no automobiles were in the storage lot. Traffic at the intersection was regulated by stop and go lights placed on each corner, in approximately the following positions: on the northwest corner, 33 feet north of the north curb of Madison street; on the southwest corner, 20 feet west of the west curb of Oak Park; on the northeast corner, 15 feet east of the east curb of Oak Park; on the southeast corner, 33 feet south of the south curb of Madison. The light on the northwest corner is blind or blank on the west side, and its lights are projected only north and south on Oak Park, but, according to the uncontradicted testimony of Lang, a passenger on the bus involved in the accident, are visible at a point 75 feet west of the Oak Park curb. These lights are operated on a 60 second cycle, showing green 33 seconds and red 27 seconds for traffic on Madison, and 27 seconds green and 33 seconds red for traffic on Oak Park; a yellow or amber light, indicating a change in traffic, appears with the green light for 3 seconds and with the red light for 1 second just before the change of lights on each street. The Oak Park lights and the Ridgeland lights, a half mile to the east, were synchronized for 30 miles an hour, but the speed limit is 25 miles an hour. At the time of the accident there was no other traffic, vehicular or pedestrian, on either Oak Park or Madison street; and, except for a sweating or dampness, usually found on brick pavement, the pavement in Madison street was dry.

Plaintiff, a police officer of the city of Chicago, but not then on duty, was alone in his Ford automobile, driving south on Oak Park avenue; the bus, carrying 16 or 17 passengers, was traveling east and was on time, being due at the Chicago terminal at 12th street and Wabash avenue around 6 o'clock; the headlights and other lights on the front of the bus, and the headlights of the Ford, were lighted; the collision occurred in the southwest quarter of the intersection and near the center lines of each street, from which point the automobile, impacted against the front of the bus, was pushed or carried in a southeasterly direction about 70 feet, to a point 4 or 5 feet north of the south curb of Madison and near a trolley post approximately 38 feet east of the east curb of Oak Park; the bus was equipped with dual tires in the rear and there were skid marks beginning just east of the center line of Oak Park and extending to the rear of the stopped bus.

The complaint consisted of two counts, the first charging negligence and the second charging wilful and wanton conduct. In addition to the charges of negligent operation of the bus, excessive speed and failure to keep a careful lookout or to sound a horn, the complaint charged that defendant negligently failed to yield the right of way to the plaintiff, who had started to cross the intersection on the green light and ‘was lawfully within the intersection when the color green alone was thereafter exhibited on the signals regulating eastbound traffic,’ and, by amendment made at the conclusion of all the testimony, that defendant negligently failed to yield the right of way to the plaintiff, ‘who was unable to stop in safety and was proceeding cautiously through the intersection while the color yellow following green was shown on the traffic control signals regulating southbound traffic, and who was lawfully within the intersection when the color green alone was thereafter exhibited on the signals regulating eastbound traffic.’ Defendant answered, denying the charges of negligence and wilful and wanton conduct, and alleging that plaintiff was not in the exercise of due care for own safety, and that plaintiff ‘wantonly and wilfully drove the same (his automobile) against the red light onto said intersection and into collision with said bus.’ On appeal defendant's principal contention is that the trial court erred in refusing to direct a verdict in its favor or to enter judgment for it notwithstanding the verdict.

We find no material error in the rulings on evidence or instructions. The damages awarded are unusually large, but the injuries sustained are exceptionally severe. Plaintiff, a strong and healthy man, around 35 years of age at the time of the accident, is now a hopeless and helpless invalid; he is suffering from aphasia, which is permanent and very likely to grow worse; he requires assistance in dressing, eating, and the ordinary activities of daily life. Defendant figures that based upon his expectancy of life, and investment at 3 per cent, the present value of his loss of wages is $59,000. This leaves nothing for pain and suffering, the cost of an attendant, or other necessary expenses of his invalidism. We will not disturb the judgment because of the size of the verdict.

As to the occurrence, plaintiff introduced the testimony of himself and a passenger on the bus. He called two physicians, who testified as to his physical and mental condition. The physician who treated him shortly after the accident and examined him several times thereafter, testified that at the time of the trial plaintiff's ‘answers to questions are not dependable at all.’ The other physician who examined plaintiff, for the purpose of testifying on the trial, said that plaintiff was suffering from a ‘marked aphasia of a motor type, which means that he is unable to formulate words and express them, either by speech or by writing. I found that * * * once his mind got in the groove, he stayed on one particular word, he kept repeating the same word, no matter what question was directed toward him’; that plaintiff ‘is not able to formulate sentences to speak of at all’; that most of plaintiff's history was obtained from his brother and from material furnished to the witness; that ‘his answers to questions on account of the injury he received did not permit him to say what he meant’; that ‘you cannot converse with the man (plaintiff) at all.’ The nature of plaintiff's testimony and the degree of his incompetency may be judged from the following excerpts from his cross-examination:

‘Q. When did you go to the Cook County Hospital? Ans. Right arm and brain.

‘Q. Do you remember when you went to the County Hospital? Ans. One day.’

And later:

‘Q. Then after you were in the Cook County Hospital, where did you go? Ans. Five weeks, Cook County, five weeks.

‘Q. Well, from Cook County Hospital, where did you go? Ans. Oak Park Hospital, thirteen days, and County Hospital five weeks.

‘Q. Where did you go from County Hospital? Ans. I was going to take light, doctor, Light.

‘Q. You went to Dr. Light? Ans. Yes. green.

‘Q. Green light? Ans. Light.

‘Q. Was that the name of your doctor at Cook County Hospital? Ans. No, no. Six days, Light.

‘Q. Light for six days? Ans. Kalamazoo.’

No objection on the competency of the witness has been made, but it is insisted that plaintiff's testimony supports the conclusion of his doctors. Plaintiff's counsel do not seriously dispute this contention. They say, ‘We do not claim that plaintiff's testimony is entirely coherent or reliable. We called him to the stand chiefly for the purpose of demonstrating his condition, both mental and physical.’ Our examination of the transcript of plaintiff's testimony leads us to the conclusion that he was an incompetent witness, and by this incompetency his testimony is entirely destroyed as evidence. Conley v. People, 170 Ill. 587, 593, 594, 48 N.E. 911;People v. Brothers, 347 Ill. 530, 543, 544, 180 N.E. 442. We have disregarded it in our consideration of the case. Knudson v. Knudson, 382 Ill. 492, 499, 46 N.E.2d 1011. Evidence supporting plaintiff's claim, to bar the granting of defendant's motion to direct a verdict, must be ‘competent, pertinent, and coming from a legal source.’ Hodges v. Baltimore Engine Co., 126 Md. 307, 94 A. 1040, 1043, Ann.Cas.1917C, 766; 26 R.C.L., Trial, § 75, page 1067.

Broughton, the...