Gray v. Richardson

• Decision Date: 18 March 1942
• Docket Number: Gen. No. 41732.
• Citation: 40 N.E.2d 598,313 Ill.App. 626
• Parties: GRAY v. RICHARDSON ET AL.
• Court: United States Appellate Court of Illinois

313 Ill.App. 626

40 N.E.2d 598

GRAY

v.RICHARDSON ET AL.

Gen. No. 41732.

Appellate Court of Illinois, First District, Third Division.

March 18, 1942.

Appeal from Circuit Court, Cook County; Ray D. Henson, Judge.

Action by Hazel Mangrum Gray against Guy Richardson and another, as receivers, etc., and others, doing business as Chicago Surface Lines, for injuries allegedly sustained when the plaintiff was thrown to the street while alighting from a street car. From an order vacating a judgment for the plaintiff and granting the defendants a new trial, the plaintiff appeals.

Order affirmed.

Lawrence C. Mills, of Chicago, for appellant.

Frank L. Kriete, Charles E. Green, Arthur J. Donovan, and William J. Flaherty, all of Chicago, for appellees.

KILEY, Justice.

Leave was given plaintiff to appeal from an order of the Circuit Court granting a new trial to the defendants.

Plaintiff sued for damages for injuries suffered by her when she was thrown to the street while alighting, she claims, from one of defendants' street cars in the City of Chicago. The jury returned a verdict for plaintiff and awarded her damages in the amount of $6,500. The court entered judgment on the verdict and later, on defendants' motion, vacated the judgment and granted the defendants a new trial.

It appears from the evidence that on December 17, 1936, plaintiff, her then husband Fred Mangrum, her daughter and niece, boarded a southwest bound Archer avenue street car at Van Buren and State streets in Chicago. Plaintiff then resided at 3315 South Wood Street, Chicago. As the car approached Wood Street plaintiff pressed a buzzer signaling her desire to have the car stop. She then left her seat, looked to see that her companions were following, and then proceeded to the front platform of the car. As the car neared the intersection the motorman opened the front door and plaintiff, grasping the hand bar, started to alight. At this point a conflict begins in the evidence as to what else happened. Plaintiff alleges and offers evidence to show that while she was alighting, she was thrown to the street by a sudden jerk of the car, either after the car stopped or as it was coming to a stop. The defendants claim that plaintiff had alighted while the car was in motion and, after taking a few steps, fell to the street. The evidence shows that her husband, the conductor and motorman picked her up, and her husband and niece helped her to her home, not quite a block away.

Plaintiff contends that she was thrown first on her hands and knees and in some way during the fall injured her back, her ankles and right instep. Defendants say that when the plaintiff fell, after having alighted, she bruised her hands and knees; and that any other injuries suffered were the result of beatings inflicted by her then husband upon her before and after the accident here complained of and also the result of an automobile accident shortly thereafter. A verdict was returned by the jury on February 14, 1941, and on February 17, 1941, the trial judge entered judgment on the verdict. On February 28, 1941, the court vacated the judgment and sustained defendants' motion for a new trial.

There were thirty-six grounds contained in defendants' written motion and the motion was sustained, according to the trial court, “on all the grounds set forth in defendants' motion * * *.”

Plaintiff relies on three points to reverse the order of the trial court, that the verdict is not excessive; that all of defendants' grounds in the motion for a new trial are without merit; and that the record sustains plaintiff's case and the motion should have been overruled. The defendants to sustain the order of the trial court urge that the verdict is excessive; that the verdict is contrary to the manifest weight of the evidence; that there are errors in the instructions; that medical testimony given as to future treatments is speculative; and that the doctor's opinion upon subjective symptoms invaded the province of the jury.

For convenience we shall first consider the vital question of the instructions. The defendants insist that plaintiff's given instruction No. 6 is erroneous. That instruction reads as follows: “The care and caution required of the plaintiff was such conduct and care and caution for her own personal safety in alighting from the car in question as a reasonably prudent and cautious person would have exercised under the same conditions and circumstances, before and at the time of the alleged injury. She was not required to exercise extraordinary care or diligence.”

As we have pointed out plaintiff alleged and offered evidence to show that she was injured while alighting. The defendants' answer averred and the evidence in their behalf was offered to prove that the injury occurred after she had alighted. Thus the point is controverted...