Sue v. Chicago Transit Authority

• Decision Date: 15 July 1960
• Docket Number: No. 12891.,12891.
• Parties: Jimmie SUE, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, an Illinois Municipal Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

279 F.2d 416 (1960)

Jimmie SUE, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, an Illinois Municipal Corporation, Defendant-Appellee.

No. 12891.

United States Court of Appeals Seventh Circuit.

June 9, 1960.

Rehearing Denied July 15, 1960.

Zeamore A. Ader, Chicago, Ill., for appellant.

William S. Allen, Jerome F. Dixon, Paul Denvir, Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

Plaintiff-appellant, Jimmie Sue, brought this diversity action against the Chicago Transit Authority, defendant-appellee, to recover damages for personal injuries. The injuries were sustained on June 29, 1956 while he was riding as a fare paying passenger on one of defendant's buses. He was struck on the forehead by a rock which entered the bus through an open window.

The jury returned a verdict for defendant. The District Court entered judgment on the verdict. Plaintiff's appeal followed denial of his motion to vacate, for judgment notwithstanding the verdict, or, in the alternative, for a new trial. He contends the District Court erred in denying his motion.

The main contested issue is whether the court erred in limiting evidence of prior rock or missile throwing occurrences involving defendant's buses to the square mile area surrounding the site of the incident and also anywhere on the route of the particular bus line, and, in each instance, to the one year period preceding the date of the incident. Plaintiff also predicates other contentions of error on this issue.

At a pre-trial conference the defendant was ordered to supply information, in connection with interrogatories submitted by plaintiff, as to missile throwing incidents within the limits of place and time as above set forth. Defendant responded by furnishing typewritten sheets setting forth the number of weekday, Saturday, Sunday and Holiday bus trips, northbound and southbound, in the square mile area and on the particular route during the one year period prior to June 29, 1956 together with the number of rock throwing incidents and details thereof. Seven such incidents were related, none of which caused personal injury or resulted in a claim. They all appeared of minor nature. At the trial plaintiff requested that this data be read to the jury. It was so read and the jury was permitted to take the typewritten sheets containing the information to the jury room for use in its deliberations.

Among plaintiff's contentions of error relating to the issue as to the scope of the prior occurrence evidence is the refusal of the District Court to require the defendant to answer interrogatories seeking to elicit information concerning the number of missile throwing incidents involving any of defendant's buses or other public conveyances between June 1, 1951 and July 29, 1956, the names and addresses of persons injured, the property damage caused, localities of the occurrences, number of claims paid, and similar data for the route travelled by the particular bus line on which plaintiff was a passenger.

The defendant as a common carrier was bound to exercise a high degree of care toward its passengers. But, under Illinois law, which governs this case, liability for injury to a passenger resulting from a missile hurled into the carrier's vehicle by a third person exists only where the incident could have been reasonably foreseen and avoided by the carrier. Chicago & Alton Railroad Company v. Pillsbury, 123 Ill. 9, 22, 14 N.E. 22. And, prior occurrence evidence must be such as would establish that the carrier had notice of "danger to its...