Borus v. Yellow Cab Co.

• Decision Date: 18 August 1977
• Docket Number: No. 62800,62800
• Citation: 367 N.E.2d 277,9 Ill.Dec. 843,52 Ill.App.3d 194
• Parties: , 9 Ill.Dec. 843, 98 A.L.R.3d 811 Rosalie BORUS, Plaintiff-Appellant, v. YELLOW CAB COMPANY and Thomas Jamison, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 277

367 N.E.2d 277

52 Ill.App.3d 194, 9 Ill.Dec. 843, 98

A.L.R.3d 811

Rosalie BORUS, Plaintiff-Appellant, v. YELLOW CAB COMPANY and Thomas Jamison, Defendants-Appellees.

No. 62800.

Appellate Court of Illinois, First District, Fourth Division.

Aug. 18, 1977.

Arnstein, Gluck, Weitzenfeld & Minow, Chicago (Eugene J. Kelley, Jr., Chicago, of counsel), for plaintiff-appellant.

Jesmer & Harris, Chicago (Francis X. Riley, Chicago, of counsel), for defendants-appellees.

ROMITI, Justice.

The basic issue in this case is whether the plaintiff's inadvertent closing of a taxicab door on her coat can be held to be contributory negligence as a matter of law thus barring her suit against the defendants for injuries suffered when she allegedly was dragged some distance by the defendants' taxi. We hold that, particularly under the facts of this case, the question is one for jury determination and reverse the trial court's entry of summary judgment for the defendants on this issue. We also hold that there is no such fatal contradiction between the plaintiff's deposition and her affidavit as to make the latter improper.

On June 29, 1972 the plaintiff was injured on Jackson Boulevard near the School of the Art Institute of Chicago. Subsequently she filed suit against Thomas Jamison, a taxicab driver, and Yellow Cab Company, his employer, alleging that due to the driver's negligence she was dragged by the cab when her coat was caught in the door. Shortly before trial the defendants filed a motion for summary judgment which was granted on the grounds that the plaintiff was guilty of contributory negligence as a matter of law and that such negligence was the proximate cause of her injury. The depositions of both the plaintiff and the driver and the plaintiff's affidavit comprise the only evidence before the trial court and before this court.

According to the plaintiff's deposition she was approximately 59 years of age at the time of the accident. About four years before she had suffered a serious accident, breaking her hip, pelvis and a number of ribs. At the time of the instant accident she still had to use a cane and was very slow in her movements. Because of her condition, she used cabs whenever she went more than a block or so.

On this particular day she was going to the School of the Art Institute. When she got in the taxi, she instructed the driver where to go. He stopped where she told him to stop. In response to the question "How close to the curb did he come? Did he come right up close or did he stop away from the curb?" she said "I'm not sure. I have no idea." However, a few minutes later, at defense counsel's request, she marked with an "x" on a photograph of Jackson Boulevard the place where she alighted. Defense counsel states that the "x" shows she alighted in the street more than two feet from the curb.

The plaintiff paid the fare while still in the cab. Because of her physical condition it took her some time to get out; the driver did not help her with the door. She had to use the cane, which was in her right hand and hold on to the taxi with her left hand to get out. She alighted in the street, Jackson Boulevard. Once she alighted, she turned facing the cab and slammed the door shut. Unknown to her, her raincoat caught in the door. The driver took off, going west on Jackson, the moment the door slammed. She cried out and after she was dragged in the street for some distance, the driver heard her, stopped the taxi and took her to a hospital.

The plaintiff's affidavit adopted the deposition and photograph but added, in summary, the following facts:

At the time of the instant accident, she was still partially disabled. It took her between twenty and thirty seconds to get into the taxicab. The driver watched her during this time. When the taxi reached her destination it stopped, facing west on Jackson Boulevard. While she was in the taxi she did not notice exactly how far the cab was from the curb. However when she did alight, she found herself standing in a less than two foot space between the side of the taxi and the curb. This, according to the plaintiff, left her in an unusually awkward position. She was forced to stand closer to the taxi when she closed the door than she normally would have. On the other hand, the position of the cab and the open door prevented her from stepping comfortably up onto the curb. She did not know how she could have gotten up onto the curb without first closing the door. It seemed that the least awkward thing to do was to attempt to close the door so she could get out of the way and up onto the curb. When she closed the door she was standing no less than six inches away from the side of the taxicab. She had no idea before she closed the door that her coat was in the path of the swinging door or that there was any likelihood that the coat would be caught in the door. Immediately after she closed the door, and before she had a chance to get out of the street or up onto the sidewalk, the driver took off. She had no opportunity or time to free herself from the taxi.

The defendants, although given the opportunity, made no motion to strike the plaintiff's affidavit, nor did they file an affidavit in response.

It would almost appear from the driver's deposition that the accident really did not happen: He let the plaintiff off, not in the street but on the sidewalk. After closing the door she walked north toward the Art Institute. He did not start the taxi until she was about three feet away from it. After he started the taxi, he travelled about five feet and then stopped because he heard a girl (not the plaintiff) yell "wait." The girl pointed to the curb side of the taxi so he got out and found the plaintiff. She was lying about a foot away from the taxi. He did not see her coat or any article of her clothing attached to the cab.

According to the driver, he had first noticed the plaintiff's cane when she hailed the taxi. When getting in the cab, she was slow and awkward. She spoke as befitted an elderly, frail lady.

The driver had received two hours of instruction from the taxicab company. He had received no instructions on the handling of disabled passengers, or on determining when a discharged passenger is sufficiently far from the taxi to insure that there is no danger of the passenger being caught up in the taxi. He refused to answer questions as to the number of prior accidents he had had and whether he had been advised that the company would not tolerate repeated involvement in accidents.

The trial court in rendering summary judgment for the defendants found (1) that the plaintiff unknowingly closed the door on her coat; (2) that she was dragged some distance because the coat was caught in the door, and (3) that she yelled and the driver stopped the cab immediately. ¹ The court then found, having accepted the plaintiff's version of the facts, that she was guilty of contributory negligence as a matter of law and that such negligence was the proximate cause of her injury.

I.

The remedy of summary judgment is to be awarded with caution so as not to preempt the right of a trial by jury or the right to present fully a factual basis for a claim where a material dispute may exist. Even if there is no dispute in the evidence, if fair-minded persons would draw different conclusions from the evidence, then it becomes the province of the jury to draw that conclusion which to them seems most reasonable. (Silberstein v. Peoria Town & Country Bowl, Inc. (1970), 120 Ill.App.2d 290, 257 N.E.2d 12.) Furthermore, the issue of contributory negligence is ordinarily and preeminently a question of fact for the jury, not the court to decide. (Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836; Ballard v. Jones (1974), 21 Ill.App.3d 496, 316 N.E.2d 281, leave to appeal denied ; Genck v. McGeath (1956), 9 Ill.App.2d 145, 132 N.E.2d 437; Rowley v. Rust (1940), 304 Ill.App. 364, 26 N.E.2d 520; 28 Illinois Law and Practice, Negligence § 268, p. 252; Prosser on Torts, 4th Ed. 1971, p. 420; Note: Torts DeFacto Abandonment of Contributory Negligence, Arkansas Law Rev., Vol. 25, pp. 559, 560-561; Walker, Defenses to Liability in Automobile Cases, 1953 U. Ill. Law Forum 52 wherein it is stated at p. 64 "Most courts, acting in accordance with well-settled law, refuse to become a 'thirteenth juror' or substitute their judgment for that of the jury.") As stated in Goman v. Benedik (1962), 253 Iowa 719, 113 N.W.2d 738 at 739:

"It is not disputed by appellant, that we must view the evidence in the light most favorable to plaintiff; that it is only the exceptional case in which the issue of freedom from contributory negligence should not be submitted to the jury only where such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion; that if there is any evidence tending to establish plaintiff's freedom from contributory negligence, the question is one of fact for the jury, and doubts should be resolved in favor of such submission."

The reason for this is obvious when one bears in mind that whether ordinary care has been exercised or not depends on the circumstances of each particular case. (Bickel v. City of Chicago (1975), 25 Ill.App.3d 684, 323 N.E.2d 832; Genck v. McGeath (1956), 9 Ill.App.2d 145, 132 N.E.2d 437; Minters v. Mid-City Management Corp. (1947), 331 Ill.App. 64, 72 N.E.2d 729; 28 Illinois Law and Practice, Negligence § 123, p. 111), and the courts therefore are reluctant to lay down general rules on what constitutes contributory negligence. (Rowley v. Rust (1940), 304 Ill.App. 364, 26 N.E.2d 520.) As stated in Pienta v. Chicago City Ry. Co. (1918), 284 Ill. 246 at 251, 252, 120 N.E. 1 at 3:

"While the burden of proof is always on the plaintiff, in proceedings of this kind to show that when the injury was received he was in the exercise of ordinary care, that question is one of fact, which must be determined...