Sims v. Chicago Transit Authority, Gen. No. 45820

• Court: United States Appellate Court of Illinois
• Writing for the Court: ROBSON; McCORMICK, P. J., and SCHWARTZ
• Citation: 7 Ill.App.2d 21,129 N.E.2d 23
• Docket Number: Gen. No. 45820
• Decision Date: 28 June 1955
• Parties: Vera SIMS, Appellee, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Appellant.

Page 23

129 N.E.2d 23 7 Ill.App.2d 21 Vera SIMS, Appellee,
v.
CHICAGO TRANSIT AUTHORITY, a municipal corporation, Appellant. Gen. No. 45820. Appellate Court of Illinois, First District, Second Division. June 28, 1955.
Rehearing Denied Oct. 11, 1955.

[7 Ill.App.2d 24]

Page 24

Thomas C. Strachan, Jr., James O. Dwight, Marion J. Hannigan, Arthur J. Donovan, John W. Freels, Chicago, for appellant.

Bruce Parkhill, Chicago, for appellee.

ROBSON, Justice.

The Supreme Court, 4 Ill.2d 60, 122 N.E.2d 221, has reversed this court's decision in Sims v. Chicago Transit Authority, 351 Ill.App. 314, 115 N.E.2d 96, and has remanded the case to this court with directions to decide the issues relating to defendant's motion for new trial. We are, therefore, called upon to decide two questions: 1. Was the verdict contrary to the manifest weight of the evidence? 2. Was it reversible error to allow the issue of the carrier and passenger relation to go to the jury?

As to the first point, the evidence as set forth in our previous opinion is that shortly before the accident plaintiff got off defendant's car in the middle of the block. Cars were lined up ahead of the streetcar from which she alighted as far as the intersection. She had the choice of going to the west curb which was closest to her, then to the street intersection where the crosswalks were blocked and where pedestrians were crossing, or of going through the narrow passage between two cars and picking her way across the southbound tracks and then to the curb on the opposite side of the street. In choosing this latter course, her vision of any car which might be approaching was necessarily[7 Ill.App.2d 25] obscured. A car was approaching from the opposite direction and as plaintiff approached the northbound track she was injured [the theory of plaintiff was that she threw up her hands and was then so close to the northbound track that her hand was struck by the louver (a ventilating lid projecting a few inches from the car) and she was thrown to the ground].

In our previous opinion we had concluded that she was guilty of contributory negligence as a matter of law. That question has been resolved by the Supreme court, and as the facts upon which that conclusion was reached do not differ materially from those set out in our previous opinion we conclude there is no evidence for us to weigh on that point. We proceed therefore to a discussion of the question of the manifest weight of the evidence.

There was a sharp conflict in the evidence as to the rate of speed the streetcar was going just prior to the time of the accident and before it struck the plaintiff. The estimates of the witnesses as to speed varied from six to twenty miles an hour. There was a sharp conflict as to whether or not a gong was sounded. There was a sharp conflict as to whether or not plaintiff rushed between the cars or proceeded slowly. The testimony of plaintiff's witnesses in each instance supported one set of facts and defendant's witnesses, who were greater in number, supported another. The trial judge who heard and saw the witnesses approved the verdict by his denial

Page 25

of defendant's motion for new trial. When the testimony is contradictory this court will not substitute its judgment as to the weight to be given the testimony and as to the credibility of the witnesses for that of the trial court which heard and saw them. Bellm v. Henry, 336 Ill.App. 525, 532, 84 N.E.2d 661; Olin Industries, Inc., v. Wuellner, 1 Ill.App.2d 267, 271, 117 N.E.2d 565.

In the light of the analysis of the record and the law as set forth in the opinion of the Supreme court pertaining to the question of due care and in [7 Ill.App.2d 26] view of the conflicting statements of the witnesses as to the speed of defendant's streetcar, the sounding of the gong and the manner in which plaintiff proceeded between the streetcars, we can not now say that the verdict was against the manifest weight of the evidence.

As to the question of the submission to the jury of the issue of carrier and passenger relationship and its effect upon the verdict in this case, in our previous opinion we reached the conclusion that plaintiff had ceased to be a passenger prior to the accident. The Supreme court in its opinion said, 4 Ill.2d at pages 65-66, 122 N.E.2d at page 224: '* * * the place where plaintiff was discharged was as reasonably safe as the circumstances permitted. Therefore, it can properly be found that plaintiff ceased to be a passenger and that defendant owed her only the duty of ordinary care. West Chicago Street Railway Co. v. Buckley, 102 Ill.App. 314.' We understand this as confirming our finding that the relationship of passenger and carrier had ceased.

It was therefore error for the court to have submitted the issue of carrier and passenger relationship to the jury. The question is whether that constituted reversible error. This is not an error in the form of the instruction but a substantial error which has to do with the standard to be applied by the jury in measuring the duty owed by the defendant. Moreover, it is not only a difference in the measure of duty, but a broader aspect which we must consider. The difference is between the application of 'highest degree of care consistent with practical operation' owed by defendant to plaintiff as a passenger and the ordinary care owed to a pedestrian. But the practical effect of applying the...