Hickey v. Chicago Transit Authority

• Citation: 201 N.E.2d 742,52 Ill.App.2d 132
• Decision Date: 04 September 1964
• Docket Number: Gen. No. 49426
• Parties: Allen HICKEY, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 742

201 N.E.2d 742

52 Ill.App.2d 132

Allen HICKEY, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation Defendant-Appellant.

Gen. No. 49426.

Appellate Court of Illinois, First District, Third Division.

Sept. 4, 1964.

William J. Lynch, William S. Allen, John W. Freels, Edmund J. Burke, Chicago, for appellant.

Leonard Levin, Chicago, Irving S. Abrams, Chicago, of counsel, for appellee.

SCHWARTZ, Presiding Justice.

This is an appeal from a judgment for $15,000 entered on a verdict in a personal injury action involving plaintiff's fall in a Chicago Transit Authority (CTA) bus. The principal issues on appeal are whether the verdict is against the manifest weight of the evidence, whether prejudicial comments were made by plaintiff's attorney in his closing argument and by the trial judge during the course of the trial; whether evidence of plaintiff's reputation for sobriety and truthfulness was properly admitted, and the propriety of certain medical testimony.

The accident occurred in the early morning hours of June 6, 1956 and there were only two eyewitnesses--the plaintiff and the driver of the bus. There is a sharp conflict between the two as to where plaintiff got on the bus, his purpose in getting on, where he sat, his movements just before the accident, and where in the bus the accident occurred, as well as to the ultimate issue in the case, that is, whether the fall was caused by what plaintiff calls a 'terrible' jolt of the bus or by his own intoxication.

Plaintiff testified that he was hungry, could not sleep, and went out looking for a restaurant. He boarded a Damen Avenue bus at Damen Avenue and Addison Street at about 2:00 A.M., but before it got to Clark Street and Bryn Mawr Avenue there was a terrific jolt and he fell forward, hitting the seat in front of him, and blacked out and the next thing he knew, he was being picked up and taken to the emergency room at the Edgewater Hospital by two city policemen. He testified further that he had not been drinking and that the bus had been going too fast.

The driver testified he had been a bus driver for the CTA for twenty years; that his run at the time in question started at Damen and Blue Island Avenues; that at Damen Avenue and Cermak Road, plaintiff got on just as the doors of the bus were being closed; that he was intoxicated; that he presented an emergency transfer, which meant he had passed his stop on another bus and the driver had given him the transfer; that on the bus in question he moved from seat to seat; that the driver told him to sit down; that when a passenger was getting off at Ravenswood and Bryn Mawr Avenues and the driver was holding the door open, the plaintiff, who was standing at a grab handle bar near the front long seat, slid down the bar onto the floor. The driver tried to pick him up, and plaintiff said his back hurt. The driver then proceeded to the Edgewater Hospital, 3 1/2 blocks away.

There was no one else on the bus at the time plaintiff fell. At the hospital the driver left the bus, called his dispatcher, and returned. After he returned to the bus, defendant's police arrived and a minute later the city police arrived. Two CTA policemen helped plaintiff off the bus and two city policemen helped him into the hospital. They all testified that plaintiff was drunk. After he was examined by a doctor, he was taken to a police station for safekeeping and charged with misconduct.

Thus, four witnesses support the driver's statement with respect to plaintiff's intoxication and other details, such as the fact that he was found sitting on the floor of the bus and holding onto the front grab iron. Plaintiff alone denies he was intoxicated. Defendant contends that this establishes that the verdict was against the manifest weight of the evidence. It was a basic issue in the case and in that respect the verdict was against the manifest weight of the evidence.

Defendant contends that since all possible witnesses have been heard as to the facts relating to the accident, there would be no purpose in remanding the cause, but that an order of reversal without remandment should be entered. This would be equivalent to directing the jury to find a verdict for defendant and entering judgment thereon. On such a motion the court cannot consider any conflict in the evidence nor its weight or preponderance nor the credibility of witnesses, but must take that evidence as true which is most favorable to plaintiff's cause of action. Greenlee v. John G. Shedd Aquarium, 31 Ill.App.2d 402, 176 N.E.2d 684, and cases there cited. This is not a case in which we can avoid remandment. Substantial errors were committed, and we will consider those we believe important and which may serve to guide the conduct of another trial.

Errors were alleged with respect to the conduct of the trial and the rulings and comments of the trial court. The trial started at 10:08 a.m., when the court directed plaintiff's attorney to make his opening statement. Defendant's attorney appeared at 10:10 a. m., at which time he asked for a mistrial because he had not heard the beginning of the opening statement. He had previously advised the court of the necessity of his appearing in the federal court that morning, and the court had given him a five minute delay. His motion for mistrial was denied. While the time allowed him was short, we take note of the fact that there is a tremendous backlog in the trial court and that judges as well as counsel are under great pressure. We also take note of the fact that defendant has a great amount of this type of litigation and employs many lawyers. There must be cooperation between these lawyers which will enable them to take care of such situations. It was not error to deny defendant's motion to declare a mistrial. Gray v. Gray, 6 Ill.App.2d 571, 128 N.E.2d 602; Ryan v. Monson, 47 Ill.App.2d 220, 197 N.E.2d 265.

Counsel for defendant charges that the court frequently made adverse comments in the presence of the jury when ruling on objections to the evidence, and that the court also erred in not hearing arguments on such matters in...