Miskunas v. Chicago Transit Authority

• Decision Date: 08 September 1976
• Docket Number: No. 61560,61560
• Citation: 42 Ill.App.3d 202,355 N.E.2d 738
• Parties: Mary M. MISKUNAS, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 738

355 N.E.2d 738

42 Ill.App.3d 202

Mary M. MISKUNAS, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation Defendant-Appellee.

No. 61560.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 8, 1976.

Powers McGuire and Francis X. Riley, Chicago, for plaintiff-appellant.

Sal M. Bianchi and Daniel R. Fusco, Chicago, for defendant-appellee.

DIERINGER, Justice:

The plaintiff appeals from a judgment of the Circuit Court of Cook County entered on September 13, 1974, sustaining the defendant's motion to dismiss after the close of the plaintiff's case.

The issue on appeal is whether the plaintiff failed to establish a prima facie case of negligence such that no contrary verdict based upon that evidence could ever stand.

On January 6, 1971, the plaintiff, then aged 38, rode a Chicago Transit Authority bus home from work and got off at the northeast corner of Albany and 39th Streets in the City of Chicago. She was wearing boots with low, flat heels, and she was carrying a handbag and a plastic bag with her shoes in it.

It was dark and very cold and there was a covering of snow on the ground. The Local Climatological Data bulletin issued by the National Weather Service shows that on January 3, 1971, there had been 7.1 inches of snow, and on January 4, 1971, there was a trace of snow. The bulletin indicates the temperature fell from a maximum of 43 on January 3 to a maximum of 8 on January 6. Finally, the bulletin indicates that on the morning of January 6, there were two inches of snow on the ground. The plaintiff testified that a light snow covered the streets and sidewalks, but she did not recall that it was piled up.

The bus stopped in a cross walk parallel to the curb about three feet from the curb. The plaintiff, who was the only passenger to get off the bus at Albany, had her handbag and shopping bag in her left hand and held onto the rail with her right hand. She testified her injury occurred as follows: 'I know I was holding onto that rail just going down slowly, and as my foot had touched what I had seen of the snow area, after stepping down carefully, I slipped very quickly, but I was still holding onto the rail as much as I could with my right hand. And then I just lost control and slipped right off and fell.' She testified she couldn't see the ice she stepped on, until she stepped down.

She was assisted by passersby who helped her to her home from which she was taken to the hospital. It was determined she had broken her leg, and she was in a cast for five months.

The driver of the bus made no attempt to assist the plaintiff after she fell, but gave his name and number on a card when one of the passersby urged her to ask for it.

Benjamin Fenger, a registered land surveyor, testified he surveyed the corner where the injury occurred and determined the drop in elevation from the center line to the curb was 12 inches, and the drop from a place 8 feet from the curb to the curb was 9 inches.

The plaintiff alleged in her amended complaint that the defendant had been negligent by operating the bus in a careless manner, by bringing the bus to a stop at a place where alighting could result in injury, by bringing the bus to a stop with the right front wheel of the bus more than 18 inches from the curb, by failing to warn the plaintiff of the dangerous condition of snow and ice, and by failing to assist the plaintiff to a point of safety.

At the time of the injury Section 276 of Chapter 27 of the Municipal Code of the City of Chicago stated as follows:

'(c) The driver of a bus shall enter a bus stop or passenger loading zone on a public street in such a manner that the bus when stopped to load or unload passengers shall be in a position with the right front wheel of such bus not further than eighteen inches from the curb and the bus approximately parallel to the curb so as not to unduly impede the movement of other vehicular traffic.'

Chicago Transit Authority Rule 103--A contained a similar provision:

'The operator of a bus shall enter a bus stop zone in such a manner that when standing to load or discharge passengers, the right front wheel shall be not more than eighteen (18) inches from the curb to allow the free movement of other vehicular traffic.'

At the close of the plaintiff's evidence the trial court ruled in favor of the defendant and against the plaintiff on defendant's motion for a directed verdict, on the basis that the plaintiff had not met the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

There is some confusion in the record in that the court allowed a defense witness to testify out of turn before the plaintiff rested. The plaintiff was waiting for a doctor to testify, and to save time the court allowed Leonard Losoya, 13 years old, to testify for the defense.

By agreement of the attorneys the defendant was allowed to move for a directed verdict on liability after Losoya's testimony. This necessarily precluded the defense testimony from being considered by the court, and we cannot consider it, as it was not part of the plaintiff's case. This was recognized on appeal as neither side discussed Losoya's testimony in their briefs.

A review of the record indicates the court based its judgment on the belief the defendant owed no duty to the plaintiff once she stepped off the bus, and on the belief the bus driver had complied with all his duties in that he was not able to get within 18 inches of the curb 'because of the ice.'

A common carrier owes the highest degree of care to a passenger, and that duty extends until the passenger has been given an opportunity to alight in a safe place. That question was most recently determined in the case of Katamay v. Chicago Transit Authority (1972), 53 Ill.2d 27, 289 N.E.2d 623, where the Illinois Supreme Court stated, 'the passenger to whom the carrier owes the duty to exercise the highest degree of care is one who is in the act of boarding, is upon, or is in the act of alighting from, the carrier's vehicle. (See Illinois Pattern Jury Instructions--Civil (2d ed. 1971), No. 100.09.)'

In the case at bar the plaintiff alleged the defendant was guilty of common law negligence by failing to stop at a place which was safe for the plaintiff to alight, and alleged the defendant violated a municipal ordinance enacted to protect the public safety by failing to stop within 18 inches of the curb.

It is clear that proof establishing a failure to provide a safe place to alight constitutes negligence under the standard set forth in Katamay, (supra). It is also well established under the law of Illinois that whether an ordinance enacted for the public safety was violated, and whether the negligence or violation of the ordinance was the proximate cause of the injury were properly questions for the jury. Gauchas v. Chicago Transit Authority (1965), 57 Ill.App.2d 396, 206 N.E.2d 752; Perzovsky v. Chicago Transit Authority (1974), 23 Ill.App.3d 896, 320 N.E.2d 433.

The evidence established at trial was the plaintiff was injured while alighting from a Chicago Transit Authority bus which was stopped in a crosswalk about three feet from the curb. The street where she alighted was icy, and it dropped off sharply toward the curb. Contrary to the conclusion of the trial judge, the plaintiff stated she remembered no pile-up of snow which would have prevented the driver from discharging his duty to come within 18 inches of the curb, and the National Weather Service bulletin indicates there were only two inches of snow and ice on the ground on the morning of January 6, 1971. We must conclude the evidence adduced at trial on behalf of the plaintiff established a prima facie case, and it was error for the court to sustain the defendant's motion for a directed verdict.

For these reasons, the judgment of the Circuit Court of Cook County is reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

JOHNSON, P.J., concurs.

BURMAN, Justice (dissenting):

I would affirm the trial court's judgment for the defendant. The record clearly establishes that defendant's bus came to a complete stop at the crosswalk and when the doors opened, the plaintiff alighted carrying a purse and bundle in her left hand. She did not slip and fall on the steps of the bus. A fair reading of the record indicates that the court, who heard the evidence without a jury, found for the defendant on the merits.

At the trial, conflicting testimony was elicited from the plaintiff and Leonard Losoya, a thirteen year old individual who witnessed the incident, concerning (1) the physical condition of the sidewalk and the street where the defendant's bus stopped to let the plaintiff alight and (2) whether the plaintiff was in contact with the bus at the time she slipped and fell. Moreover, the plaintiff testified that at the time of the incident, the defendant's bus, which was situated approximately three feet from the curb, was stationary and its steps were clear and without defect. Upon the conclusion of the plaintiff's case-in-chief, the defendant moved for a directed finding which was granted.

Before delving into the pertinent legal tenets governing the case at bar, some prefatory comments regarding my colleages' analysis of the matter at hand are essential. While the majority insists that there is some confusion in the record whereby the trial judge allowed defense witness Leonard Losoya, to testify prior to the plaintiff resting her case-in-chief, I am of the opinion that there was no perplexity in the transportation of events at trial. As revealed in the record, counsel for the plaintiff elicited testimony from (1) a records librarian from the hospital where the plaintiff was X-rayed, (2) his client, and (3) a registered land surveyor. Thereafter, the trial judge and counsel for both sides engaged in the following colloquy:

'MR. Mc GUIRE: (Plaintiff's Attorney) Your Honor,...