Shanowat v. Checker Taxi Co.

• Decision Date: 22 April 1964
• Docket Number: Gen. No. 49177
• Parties: Angela SHANOWAT, as Administratrix of the Estate of Elizabeth Shanowat, Deceased, and Beverly Shanowat, a minor, by Angela Shanowat, her Mother and next Friend, Plaintiffs-Appellees, v. CHECKER TAXI COMPANY, Inc., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 573

198 N.E.2d 573

48 Ill.App.2d 81

Angela SHANOWAT, as Administratrix of the Estate of

Elizabeth Shanowat, Deceased, and Beverly

Shanowat, a minor, by Angela Shanowat, her Mother and next Friend, Plaintiffs-Appellees, v. CHECKER TAXI COMPANY, Inc., a corporation, Defendant-Appellant.

Gen. No. 49177.

Appellate Court of Illinois, First District, Fourth Division.

April 22, 1964.

Jesmer & Harris, Chicago, Robert Jay Nye, Chicago, of counsel, for appellants.

Robert J. Rafferty and Frank R. Petrone, Chicago, for appellees.

DRUCKER, Justice.

This is an appeal by the defendant, Checker Taxi Company, from judgments entered against it on jury verdicts in the Superior Court of Cook County.

Angela Shanowat, as administrator of the estate of her deceased daughter, Elizabeth, and Beverly Shanowat, a minor, by Angela Shanowat, her mother and next friend, brought suit against defendant corporation and Ila Sanchez, an individual, on a cause of action arising from an unfortunate and unusual accident which occurred on August 20, 1955. On that day Angela Shanowat, together with her deceased daughter Elizabeth, aged eleven at that time, her nine year old daughter Beverly, a son aged fourteen, and a niece aged seventeen, entered a Checker cab and asked to be driven to 1254 Noble Street, the home of Mrs. Shanowat's sister.

The evidence adduced at trial shows that the driver of defendant's cab halted his vehicle across the street from the requested destination. On cross-examination he stated that he knew that the address given him was on the west side of the street, and that in order to reach a point directly in front of that address he would have had to have taken a route involving approximately an extra one hundred feet; but, he added, that passengers 'sometimes complain very bitterly' when driven by any but the shortest route to their destination.

The evidence is conflicting as to whether the driver said: 'Well, here you are', or whether Mrs. Shanowat stated: 'This is it'. The parties also differ as to whether one of the children, who were sitting on the 'jump seats', opened the right rear door of the cab, or whether the driver reached across and opened it for them. Similarly, there is a conflict in evidence as to whether the Shanowat girls recognized some children playing on the sidewalk and became excited at their arrival. In any event, while Mrs. Shanowat was searching her purse for the fare, the two young girls and the teenage niece got out of the cab. The niece was standing just outside the open right rear door. The driver, unable to pull to the curb on account of parked cars, had double-parked in the northbound traffic lane. As the Sanchez car approached behind the stopped cab, it slowed to about three miles per hour, and then accelerated and started to pass the taxi on the left, i. e., in the southbound traffic lane. At this moment Elizabeth and Beverly came out from in front of the cab and ran into the path of the accelerating car. The cab driver testified that he sounded his horn when he saw them running from a point at the corner of his right fender but that they continued running and were struck by the Sanchez vehicle. Mrs. Shanowat denied that the driver sounded the horn. Beverly testified that she and her sister walked to the front of the cab and, after looking both ways, ran. Elizabeth died in the hospital several hours later and Beverly sustained severe lacerations and abrasions on her legs.

Defendant has favored us with an exhaustive and comprehensive brief citing over two hundred cases in support of its argument that there were various errors of law committed in the trial court. We will discuss the points in the order presented.

First, defendant argues that plaintiffs cannot recover because the children had been discharged at a safe place and the carrier-passenger status had thus been terminated. It is conceded that a carrier owes a passenger the highest degree of care during the continuance of the relationship. However, the basic issue which must be decided is whether the carrier-passenger status had in fact terminated.

In 4 Blashfield, Cyclopedia of Automobile Law and Practice, § 2142, pp. 18-19, the author states:

'The relation ordinarily continues until the passenger has reached his destination and has alighted in safety or has had a reasonable opportunity to do so, as well as to leave the carrier's premises or the place at which he alights. However, with regard to the last mentioned qualification concerning a passenger's opportunity to leave there is ample authority for the view, especially with reference to busses or other motor carriers, that a person ceases to be a passenger as soon as he safely steps from the vehicle into the street or highway at a reasonably safe and proper place. * * *

'The traveled portion of the street or highway, however, under present-day conditions can hardly be characterized as a place of safety, and a passenger deposited in the traveled portion and injured as a consequence may hold the carrier liable.

'The rule has been applied that where a passenger is discharged in an unsafe place, the relation of carrier and passenger is not terminated until the passenger, in reasonable exercise of ordinary care for his own safety, has had a reasonable opportunity to reach a place of safety. (Emphasis added--footnotes omitted.)

The Shanowat children having been discharged into the street, we believe that the relation of carrier and passenger still existed and that the driver accordingly was still bound to exercise the highest degree of care. Rotheli v. Chicago Transit Authority, 7 Ill.2d 172, 130 N.E.2d 172.

Mrs. Sanchez testified that cars were parked solidly on the east side of the street. Mrs. Shanowat reiterated this but added that 'the cars were not bumper to bumper'. The cab driver testified that there were parked cars as far as he could see; that he stopped opposite a short space between two parked cars; that the door was able to swing open completely; and that there was about a foot and a half of space from the cab to the cars that were parked alongside. Even without affirmative evidence by defendant of safe egress to the east curb, the question of a 'reasonably safe place for alighting' was for the jury.

'Where the passenger alleges that he was injured after alighting from the conveyance, it is within the province of the jury to determine issues of fact with respect to the carrier's negligence in failing to provide a safe place for the passenger to alight, its negligence in setting down the passenger at an improper place * * * and other issues of fact with respect to its liability.' 6 I.L.P., Carriers, § 520, pp. 727-28.

To the same effect see also Lewis v. Checker Cab Co., 345 Ill.App. 301, 103 N.E.2d 192; Jacobsen v. Cummings, 318 Ill.App. 464, 48 N.E.2d 603; Paris v. East St. Louis Ry. Co., 275 Ill.App. 241.

Defendant then argues that a carrier by taxicab is not liable unless the act or omission charged proximately causes an injury that is reasonably to be anticipated and that it is not sufficient for the act or omission to constitute merely a condition through which injury can be caused by an independent act of the injured person or of the third party. We believe that it was for the jury to determine, as a question of fact, whether the negligence of the taxi driver constituted only a condition by which the injuries were made possible or whether, because the subsequent independent act of Mrs. Sanchez in passing the halted cab was or could be found to be foreseeable, the driver's negligence was the proximate cause of the injuries. Ney v. Yellow Cab Co., 2 Ill.2d 74, 84, 117 N.E.2d 74, 51 A.L.R.2d 624; Johnston v. City of East Moline, 405 Ill. 460, 91 N.E.2d 401; Lutz v. Chicago Transit Authority, 36 Ill.App.2d 79, 183 N.E.2d 579.

In the case of Houston Transit Co. v. Zimmerman (Texas Court of Civil Appeals, 1947) 200 S.W.2d 848, a somewhat similar situation was presented. There a bus driver discharged two children about five feet from the curb with a large puddle blocking their access to the sidewalk. The children passed in front of the bus and were hit by a passing truck. The court there held that the bus company was negligent and that its negligence was not excused by an intervening cause, i. e., the negligence of the truck driver. There also the question of whether the children were discharged in a safe place was held to be a question of fact for the jury.

Defendant's next point is that under the Illinois Wrongful Death Act (Ill.Rev.Stat.1961, ch. 70 § 1) there is no liability unless the proof establishes that there was a wrongful act and that such conduct directly caused the death, it being insufficient for the proof merely to show that such conduct contributed to the death.

Although the statute is limited to actions where death is 'caused by wrongful act, neglect or default' of the defendant, it goes on to provide that 'in every case (in which) the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured * * *.' We interpret this provision to mean that a cause of action for wrongful death may be maintained where the defendant was guilty of negligence which proximately resulted in the death. This interpretation is supported by the case of City of Chicago v. Major, 18 Ill. 349 (1857) the first case to interpret the Illinois Wrongful Death Act. The court there said, at page 357:

'This is a new cause of action given by this statute, and unknown to the common law, and should not be extended beyond the fair import of the language used; but this it would be difficult to do, for the language is very broad and comprehensive, embracing, in direct and positive terms, all cases where, if death had not ensued, the injured party could have maintained an action for the injury. This would seem to leave no room for construction, but...