Peltz v. Chicago Transit Authority

• Decision Date: 02 September 1975
• Docket Number: No. 61133,61133
• Citation: 335 N.E.2d 74,31 Ill.App.3d 948
• Parties: Jack PELTZ, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 74

335 N.E.2d 74

31 Ill.App.3d 948

Jack PELTZ, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.

No. 61133.

Appellate Court of Illinois, First District, First Division.

Sept. 2, 1975.

Raymond P. Concannon, Chicago, for plaintiff-appellant.

S. Joseph Formusa, Chicago, for defendants-appellees.

SIMON, Justice:

The plaintiff brought suit against the CTA and a CTA motor operator, Milton Rasberry, for personal injuries and damage to his car as a result of an accident with a CTA train at a grade level crossing at Manor Avenue on the Ravenswood rapid transit line. The defendants moved for summary judgment, supporting the motion by affidavits and relevant excerpts from the depositions of Mr. Rasberry and the plaintiff. The trial court granted the motion and entered judgment for the defendants, and the appeal is from the order granting summary judgment.

Caution must be exercised in granting summary judgment so as not to preempt to the right of a party to present the factual basis of his case to the fact-finder. (Tuohey v. Yellow Cab Co. (1962), 33 Ill.App.2d 180, 180 N.E.2d 691.) The duty of the trial court in the case of such a motion is to consider the entire record to determine whether there is a genuine issue as to a material fact. (Giampa v. Sunbeam Corp. (1966), 68 Ill.App.2d 425, 216 N.E.2d 233; Illinois Power Co. v. City of Jacksonville (1960), 18 Ill.2d 618, 165 N.E.2d 300.) The right of the moving party to the relief requested must be clear and free from doubt, but where there is no triable issue, the court should grant the motion. People ex rel. Sharp v. City of Chicago (1958), 13 Ill.2d 157, 148 N.E.2d 481; DiLeo v. United States Fidelity & Guaranty Co. (1964), 50 Ill.App.2d 183, 200 N.E.2d 405.

The facts presented to the court by the motion for summary judgment shows that there was no genuine issue as to any material fact. Excerpts from the deposition of Mr. Rasberry established that neither the CTA nor Mr. Rasberry was negligent. Mr. Rasberry stated that he was operating a six car CTA train at the time of the accident. The weather was only slightly hazy. An earlier rain had left the road surface moist. About 9 or 9:30 a.m., Mr. Rasberry was approaching the Francisco station, which was a short distance beyond the point where Manor Avenue crossed the CTA tracks. The train was returning to its terminal at Kimball Avenue and was moving in a westerly direction. His view of Manor Avenue itself was blocked by a building, but Mr. Rasberry stated that he had an unobstructed view of the Manor grade level crossing for 200 feet.

Although he knew there were crossing gates extending across Manor Avenue at that point, Mr. Rasberry did not actually see the gates go down that morning because he was watching the green signal light which told him that the tracks were clear ahead. Mr. Rasberry explained that the lowering of the gates was controlled electrically by a switch which was activated when the front of the train was approximately 300 feet from the crossing. Since the train was approaching a required stop at the Francisco station, it was going approximately 10 miles an hour as the front car went through the crossing. The first notice that he had of the accident was a sound he heard. He brought the train to an emergency stop and immediately looked towards the sound; he saw a car with a portion of the hood under the right side of the third car of the CTA train and with the crossing gate on the north side of the tracks resting on the hood of the car up against the windshield. The crossing gate was not broken.

The defendants, in support of their motion, also presented an affidavit of Zettie Stackhouse, a passenger in the second car of the CTA train. She stated that the train was moving through the intersection and that bells were ringing and the gates were down. An automobile crashed into the right side (I.e. the side exposed to the north) of the third car of the train.

Excerpts from the deposition of the plaintiff, Jack Peltz, established that he traveled along Manor Avenue through the crossing, two or three times a week. He was familiar with that CTA crossing and knew there were crossing guards, warning bells and a railroad warning sign at that crossing. On the day of the accident, Mr. Peltz turned onto Manor Avenue traveling south and rounded a turn. From that point, he had an unobstructed view of the CTA crossing for 1 1/2 blocks. Mr. Peltz had no other memory of the occurrences leading up to the accident or the accident itself.

The defendant, without objection, offered photographs taken on the day of the accident, indicating that the crossing gates were apparently working some time later in the day. The photographs also show that the crossing gate on the south side of the tracks is apparently higher than the hood of a car in the photograph.

Plaintiff's response to the defendants' motion for summary judgment reiterated only that plaintiff suffered from amnesia, that the CTA crossing gate was not broken and that Mr. Rasberry stated that he did not see the crossing gates go down on the day of the accident. None of these facts were disputed by the defendant.

Clearly there is no genuine issue as to a material fact in this case. Indeed, the plaintiff relies upon the facts presented by the defendants as the sole support for his case, since he cannot remember anything about the accident. Merely alleging that a genuine issue of material fact exists without presenting any statement of fact to contradict the defendants' version, does not thereby create such an issue. Giampa v. Sunbeam Corp. (1966), 68 Ill.App.2d 425, 216 N.E.2d 233; Fooden v. Board of Governors of State Colleges and Universities (1971), 48 Ill.2d 580, 272 N.E.2d 497.

If there are no facts in dispute, inferences may be drawn from the undisputed facts to determine if the defendant is entitled to judgment as a matter of law. If no fair-minded person could draw different inferences from these facts, then there is no triable issue and the motion for summary judgment should be granted. (Southland Corp. v. Hoffman Estates (1970), 130 Ill.App.2d 311, 264 N.E.2d 451.) This does not prejudice the party against whom judgment is granted since the same undisputed facts would support entry of a judgment at the conclusion of that party's case.

The plaintiff points to the fact that the crossing gate was not broken and claims that the gate must, therefore, have been lowered after the crash. The statements of Mr. Rasberry and Ms. Stackhouse that they saw the gate in a down position immediately after they heard the sound of the crash makes this inference extremely unlikely. From the photographs which the trial court examined, it also appears that the hood of a...