Moody v. Chicago Transit Authority

• Decision Date: 14 January 1974
• Docket Number: No. 57416,57416
• Citation: 307 N.E.2d 789,17 Ill.App.3d 113
• Parties: Blanche MOODY, Plaintiff, v. CHICAGO TRANSIT AUTHORITY and Silvercup Bakers, Inc., Defendants. SILVERCUP BAKERS, INC., Counterplaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Counterdefendant-Appellee. CHICAGO TRANSIT AUTHORITY, Counterplaintiff-Cross Appellant, v. SILVERCUP BAKERS, INC., Counterdefendant-Cross Appellee.
• Court: United States Appellate Court of Illinois

Page 789

307 N.E.2d 789

17 Ill.App.3d 113

Blanche MOODY, Plaintiff, v. CHICAGO TRANSIT AUTHORITY and Silvercup Bakers, Inc., Defendants.

SILVERCUP BAKERS, INC., Counterplaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Counterdefendant-Appellee.

CHICAGO TRANSIT AUTHORITY, Counterplaintiff-Cross Appellant, v. SILVERCUP BAKERS, INC., Counterdefendant-Cross Appellee.

No. 57416.

Appellate Court of Illinois, First District, First Division.

Jan. 14, 1974.

Jacobs, Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, Chicago, of counsel), for Silvercup Bakers, Inc., Counterplaintiff-Appellant, Counterdefendant-Cross Appellee.

Rothschild, Barry & Myers, Chicago (John J. Devine, Norman J. Barry, Chicago, of counsel), for Chicago Transit Authority, Counterdefendant-Appellee, Counterplaintiff-Cross Appellant.

GOLDBERG, Justice.

The problems which this appeal sets before us had their genesis when Blanche Moody (plaintiff) brought suit for personal injuries against Chicago Transit Authority (C.T.A.) and Silvercup Bakers, Inc. (Silvercup). Silvercup filed a counterclaim against C.T.A. seeking indemnity on an active-passive theory. C.T.A. filed a counterclaim against Silvercup seeking indemnity upon the same theory. The entire matter was submitted to a jury without severance of the issues. The jury returned a verdict in favor of plaintiff against C.T.A. and Silvercup, awarding damages of $270,000. It answered affirmatively a special interrogatory asking if the driver of the C.T.A. vehicle was 'guilty of negligence that was a proximate cause of the injury to the plaintiff.' In addition, the jury found in favor of Silvercup and against C.T.A. on the counterclaim of the former and awarded damages against C.T.A. in the amount of $190,000. It found in favor of C.T.A. on its counterclaim against Silvercup and awarded damages of $80,000 to C.T.A.

The trial court entered judgment in favor of C.T.A. on the Silvercup counterclaim and in favor of Silvercup on the C.T.A. counterclaim notwithstanding both verdicts. Silvercup has appealed, with a cross-appeal by C.T.A. We were told by counsel for both parties on oral argument that the judgment in favor of plaintiff has been satisfied. The merits of the verdict for plaintiff are therefore not before us.

Silvercup urges that the verdict of the jury in its favor on its counterclaim is adequately supported by the evidence; a judgment for full indemnity should be entered in Silvercup's favor; or, alternatively, the trial court should have granted a new trial. The C.T.A. urges that the trial court properly entered judgment in favor of C.T.A. on Silvercup's counterclaim because Silvercup was guilty of active negligence and its counterclaim was barred because of the absence of a pre-tort relationship between the parties. The C.T.A. also contends that the trial court did not err in refusing to enter a judgment for indemnity in favor of Silvercup or in denying Silvercup's motion for new trial. C.T.A. finally urges that the trial court erred in entering judgment in favor of Silvercup on the counterclaim of C.T.A. and in denying the motion of C.T.A. for a new trial on its counterclaim.

Plaintiff's injuries occurred on the morning of March 3, 1967, at, or about, the northeast corner of the intersection of Forest Avenue and 95th Street in Chicago. Plaintiff, a minor 16 years of age, on her way to school, testified that she walked south on the east side of Forest Avenue to the bus stop. There was quite a large residue of snow and ice at the intersection remaining from the historic Chicago snowfall of January that year. A quantity of icy snow covered the curb and part of the street at the crosswalk on the east side of Forest Avenue. The bus stop was immediately to the east of the crosswalk. The bus stop area had been cleared. It was marked by the usual 'No Parking' signs.

The Silvercup driver was engaged in delivery of bread. His vehicle was about 20 feet long. The driver testified that he was aware that he parked in a bus stop which was evidenced by two signs. He parked his truck in front of a car to the east which was also within the bus stop area. The truck was angleparked with the front wheels close to the crosswalk. The rear of the truck projected some 10 feet into the lane of westbound traffic on the north side of 95th Street. The driver then crossed the street to a grocery store on the south side of 95th Street.

In a short time, he returned to the truck for bread to deliver to the store. The automobile parked behind his truck had moved by then and he noted a cleared spot to the rear of his truck into which he could have moved it. He did not do so but walked in front of the truck and obtained the loaves of bread from a door on the right front side. He then walked around the front of the truck and started back across to the grocery store. He saw a C.T.A. bus coming west on 95th Street some 15 or 20 yards away. The bus was decreasing its speed. At that time, the witness also noticed at a glance a person running south on Forest Avenue but did not remember if he could identify the individual even as regards sex. This person was then some 15 yards to the north. As the driver was in front of the truck, or in the street towards its front, carrying the bread, the bus passed him to his right, proceeding in a westerly direction. The side of the bus was about three feet from him. He then saw a young lady pass the front of the truck and, just as she reached the bus, which had come almost to a stop, she slipped and said beneath it.

Plaintiff testified that she arrived at the bus stop several minutes before the accident. She noticed the Silvercup truck parked in the bus stop at an angle with the front end blocking the cleared boarding area. In order to determine if a bus was coming, she was obliged to clamber over the ice and snow which obstructed the crosswalk at the curb and walk into the street some 10 feet. Plaintiff did this once and saw no bus. She did it again a few moments later and saw a bus a block or a block and a half to the east. She waved to the driver but did not know if he saw her. As the bus approached, she moved backwards as close to the ice mound as she could get. At that time, she was standing inside the crosswalk quite close to the front end of the truck. She thought that the bus would stop in the traffic lane south of the parked cars but it cut in 'sharply' and 'started to slide.' She saw the bus slide closer to her, stepped back on the ice and slipped. She attempted to brace her hands up against the bus but slid under it.

The C.T.A. driver testified that he had previously stopped the bus two short blocks east of Forest Avenue on 95th Street. He then proceeded in a westerly direction. When he had covered about one half of the distance to Forest Avenue, a passenger signaled his intention of leaving the bus at the Forest Avenue stop. The driver slowed down for the stop. As he approached to about 30 feet from Forest Avenue, he saw a girl running south on Forest, about 30 feet north of 95th Street. As he approached the Silvercup truck, the bus was traveling about five miles per hour. He did not see plaintiff in the street waving at him. As he pulled around the Silvercup truck, in order to have the front door of the bus beyond or to the west of the truck, he saw the plaintiff falling or 'going down' when she was just a little bit behind the front door of the bus. In his opinion, the bus did not move more than a foot or a foot and a half from the time he first saw plaintiff until it stopped. He jumped out immediately and saw plaintiff beneath the bus. Someone said that the bus was on her leg and he then returned and moved the bus. In addition there was testimony by an eyewitness that he heard a screech of brakes and that he turned and saw the bus sliding toward the curb.

The basic substantive legal principles which govern the rights of these parties have been repeated with great frequency. They are well summarized in Carver v. Grossman, 55 Ill.2d 507, 305 N.E.2d 161. The issue here is whether the conduct of either party was 'the primary cause or active negligence' as distinguished from 'the secondary cause or passive negligence.' (See Carver, 55 Ill.2d at 511, 305 N.E.2d at 163.) In making this determination 'the facts of the case must clearly justify indemnification.' See Carver, 55 Ill.2d at 512, 305 N.E.2d at 163.

Silvercup argues with considerable force that the...