{ "id": 1594005, "name": "Mary Ann Bumblauskas, Plaintiff-Appellee, v. South Suburban Safeway Lines, Inc., an Illinois Corporation, Defendant-Appellant", "name_abbreviation": "Bumblauskas v. South Suburban Safeway Lines, Inc.", "decision_date": "1969-04-24", "docket_number": "Gen. No. 53,173", "first_page": "52", "last_page": "60", "citations": [ { "type": "official", "cite": "110 Ill. App. 2d 52" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "188 NE2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "40 Ill App2d 320", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5251638 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-2d/40/0320-01" ] }, { "cite": "76 NW2d 124", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10802248 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nw2d/76/0124-01" ] }, { "cite": "163 F2d 404", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1106087 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/f2d/163/0404-01" ] }, { "cite": "119 P 810", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "66 Wash 337", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 561095 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/wash/66/0337-01" ] }, { "cite": "185 NW 684", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1921, "opinion_index": 0 }, { "cite": "217 Mich 142", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1725806 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/mich/217/0142-01" ] }, { "cite": "50 A 217", "category": "reporters:state_regional", "reporter": "A.", "year": 1901, "opinion_index": 0 }, { "cite": "19 Del 128", "category": "reporters:state", "reporter": "Del.", "case_ids": [ 77390 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/del/19/0128-01" ] }, { "cite": "150 SW 919", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 8295685 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/sw/150/0919-01" ] }, { "cite": "68 Tex Crim 290", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 4651727 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/tex-crim/68/0290-01" ] }, { "cite": "231 SW2d 514", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10199478 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/sw2d/231/0514-01" ] }, { "cite": "228 La 724", "category": "reporters:state", "reporter": "La.", "case_ids": [ 2897752, 9891334 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/la/228/0723-02", "/so2d/84/0169-01" ] }, { "cite": "116 SE 47", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "29 Ga App 440", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1413779 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/ga-app/29/0440-01" ] }, { "cite": "185 NE 580", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1933, "opinion_index": 0 }, { "cite": "352 Ill 237", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5295347 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/ill/352/0237-01" ] }, { "cite": "175 NE2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "30 Ill App2d 498", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5790887 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0498-01" ] } ], "analysis": { "cardinality": 722, "char_count": 13232, "ocr_confidence": 0.607, "pagerank": { "raw": 1.5831662537321967e-07, "percentile": 0.6807346683146392 }, "sha256": "f8c11042577d66bd1b9de4439b9dacb1efbf887103f6ae1d22ceb026b2fe8fe4", "simhash": "1:87e0edacd54e26b5", "word_count": 2292 }, "last_updated": "2023-07-14T16:55:40.138507+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mary Ann Bumblauskas, Plaintiff-Appellee, v. South Suburban Safeway Lines, Inc., an Illinois Corporation, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE DEMPSEY\ndelivered the opinion of the court.\nSouth Suburban Safeway Lines appeals from a $3,000 judgment entered, after a nonjury trial, in favor of Mary Ann Bumblauskas, a fourteen-year-old high school student, who was injured in getting off a bus operated by the defendant.\nThe accident happened in the afternoon as the plaintiff was on her way home from school. The bus traveled east on 127th Street to Throop Street, Chicago, where it was to make a left turn to let off passengers on the east side of Throop.\nThe bus was a standard model with the driver at the left front, a door to his right and a two-step stairwell leading to the door with handrails on either side. Mary Ann stood at the front of the bus facing the doorway with her right hand on the handrail and her left hand carrying books and a purse, waiting to leave. According to her, the front door was open as the bus made the left turn and she was thrown out when the bus suddenly stopped to discharge passengers. She testified that she did not touch the stairs or any part of the front of the bus as she fell; that she landed on her knees and elbows, then swerved and struck the back of her neck on the pavement. The girl who stood in back of her in the bus helped her to her feet and gathered her scattered books. The bus driver asked her if she was all right, she said she was and walked away.\nTherese Rubin, a friend of Mary Ann, was also waiting to get off; she was standing in the aisle of the bus behind the plaintiff. She testified that the bus made a sharp and abrupt stop. She lost her balance, fell forward, and struck her wrist on the coin box as Mary Ann flew out of the door and onto the ground.\nThe defense witnesses testified that the bus made a smooth turn and stop. The bus driver stated that before making the turn to the north he stopped for oncoming traffic; that from five to seven girls were in the front waiting to leave as he brought the bus to a complete and easy stop, and that the plaintiff was the first one in line and was on the second step. He said he opened the door after making the stop, that the plaintiff and three other girls rushed out and the first thing he saw was the plaintiff three to four steps from the bus. However, he went on to say that: \u201cShe fell out face down both hands spread out right on her face\u201d; she \u201ctripped and fell to the ground\u201d; she \u201cdid not fall from the bus onto the street\u201d and \u201cI don\u2019t know if she fell directly from the bus to the street.\u201d\nThe other defense witnesses were three school girls who were on the bus at the time of the accident. Two testified that the door did not open until after the bus stopped and that the plaintiff fell from the bottom step to the ground. The third testified that the plaintiff tripped after she had fully alighted from the bus. This testimony was contradictory to a statement she had given in her own handwriting at the time of the accident which said that the plaintiff tripped on the bottom step of the bus.\nThe defendant contends that the judgment was against the manifest weight of evidence and argues that there was insufficient proof that the bus stopped abruptly, and that it was physically impossible for the plaintiff to have been ejected as she claimed. It is pointed out that she testified that she did not touch the stairs, door-frame or other part of the bus as she fell; that if the stop had been abrupt she would have been thrown toward the front and not through the side door.\nThe plaintiff and Therese Rubin testified that they were the only passengers waiting to go out the front door; that there was a sudden stop which caused them both to fall; that the plaintiff was thrown through the open door and Rubin against the coin box. Although they were propelled in different directions, the plaintiff was standing at the top of the stairs with her right hand on the handrail and her left arm full of books; this may have altered the normal forward motion and swung her out the side.\nIn a nonjury trial the judge must determine the credibility of the witnesses and the weight to be accorded their testimony, and his decision will not be disturbed unless it is against the manifest weight of evidence. Hood v. Brinson, 30 Ill App2d 498, 175 NE2d 300 (1961). The trial judge chose to believe the testimony that the stop was abrupt and that this stop threw the plaintiff from the bus. This conclusion was not against the manifest weight of the evidence.\nThe defendant next argues that the remarks of the trial judge concerning the credibility of the defendant\u2019s witnesses suggests that his decision was the result of anger or prejudice and that it was based on the rejection of the defendant\u2019s evidence rather than on the adequacy of the plaintiff\u2019s proof. The judge commented that the bus driver\u2019s testimony was incapable of belief and he was critical of the three school girls who appeared for the defense, noting inconsistencies in their testimony. He also remarked that they collaborated in filling out cards given them by the bus driver immediately after the accident; that prior to the trial they were told of the driver\u2019s statement that he stopped at the intersection of 127th and Throop Streets to wait for oncoming cars to clear and that their like testimony was probably because of this. In making these comments the judge not only voiced his displeasure at the testimony of the defendant\u2019s witnesses but he explained the reasons for his judgment and for resolving the credibility issue against the defendant. Although the criticisms may have been unduly harsh they in no way indicated prejudice or that the plaintiff was held to a lesser degree of proof than was required.\nAt the conclusion of the plaintiff\u2019s case on the issue of liability her attorney informed the judge that the medical witnesses would not be available until another day. It was decided to proceed with the defendant\u2019s case. The plaintiff made a motion to exclude witnesses and the motion was granted. After a short recess the judge reversed his ruling saying that the motion should have been made at the proper time. The bus driver then testified. After the driver left the stand the plaintiff renewed her motion. This time the judge overruled the defendant\u2019s objection and granted the motion. The defendant contends that a motion to exclude witnesses must be made at the opening of trial and that granting the motion after the plaintiff and her occurrence witness had testified was error.\nWhether it is proper to exclude the witnesses of the opposite party after the first party\u2019s witnesses have testified has never been squarely presented in Illinois. The closest Illinois case is the criminal case of People v. Winchester, 352 Ill 237, 185 NE 580 (1933), where the court indicated that an order to exclude after some testimony had been heard would not have been improper. The order referred to, however, was for the exclusion of additional witnesses for the same side. After one witness for the State had testified and during the cross-examination of the second, the defendant\u2019s attorney asked to have other witnesses for the State excluded from the courtroom. The court denied the motion because it came too late. In upholding the trial court\u2019s ruling, the reviewing court stated:\n\u201cThe exclusion from the courtroom of witnesses waiting to be examined is a matter within the discretion of the trial court. . . . The court might properly have granted the defendant\u2019s request in this case, even though some testimony had been taken before the request was made, but it was a matter within its discretion.\u201d\nThe nearest statutory approach to the problem in Illinois is limited to the preliminary examinations of defendants in criminal cases. The statute provides that at these hearings, during the examination of any witness, the judge may and on the request of either the defendant or the State shall, exclude all other witnesses. Ill Rev Stats 1967, c 38, \u00a7 109-3 (c) (1967).\nDean Wigmore advocated unrestricted freedom in the use of the exclusionary privilege. He termed it \u201cone of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.\u201d 6 Wigmore, Evidence, 3rd ed, \u00a7 1838. He stated: \u201cIt seems properly to be demandable as of right, precisely as is cross-examination\u201d (\u00a7 1839) and added, \u201cIt need not be demanded at the very opening of the testimony, at any time later, when the supposed exigency arises, the order may be requested.\u201d (\u00a7 1840.) Notwithstanding the dean\u2019s observation that a motion to exclude need not be made before testimony begins, a review of the case law of the jurisdictions that have passed on the question does not disclose a uniform practice. In those few states where courts have held that a request may be made at any time, the decisions are generally predicated on statutes or rules. Blitch-Everett Co. v. Jackson, 29 Ga App 440, 116 SE 47 (1923); State v. Lea, 228 La 724, 84 So2d 169 (1955); Medrano v. City of El Paso (Tex Civ App), 231 SW2d 514 (1950); Clary v. State, 68 Tex Crim 290, 150 SW 919 (1912). In Pritchard v. Henderson, 19 Del 128, 50 A 217 (Del Super Ct 1901) the defendant\u2019s request for exclusion after he had examined three witnesses was denied because it came too late. In In re Hillman\u2019s Estate, 217 Mich 142, 185 NW 684 (1921) the trial court refused the plaintiff\u2019s request for exclusion after several witnesses had testified, and in Wiles v. Northern Pac. Ry. Co., 66 Wash 337, 119 P 810 (1911) the trial court granted the plaintiff\u2019s motion for exclusion after the plaintiff\u2019s case had been completed. Both decisions were sustained; however, the reviewing courts stated that the motions for exclusion should have been seasonably made. See also Kaufman v. U. S., 163 F2d 404 (1947) where the defendant\u2019s motion for exclusion, made after one and a half weeks of trial, was refused, and Tice v. Mandel (ND), 76 NW2d 124 (1956) where the trial court refused the defendant\u2019s request for exclusion after he had been called as an adverse witness and cross-examined by the plaintiff. In both cases the trial court\u2019s ruling was affirmed \u2014 the reviewing courts held that sequestration was within the trial court\u2019s discretion.\nThe correct time to make a motion to exclude witnesses is before any witness has testified \u2014 this gives stability to the trial procedure and applies impartially to all parties. But the usefulness of the exclusionary device for the accurate ascertainment of truth is too important to automatically deny exclusion after the opening of trial. The court may, therefore, in its discretion, order exclusion in the midst of trial if it believes this is necessary to effectuate justice.\nIn the present case, a principal reason given by the court for granting the exclusion was that the defendant\u2019s witnesses were young girls. The three witnesses may have been young but they had finished high school and were employed respectively as a secretary, a bookkeeper and an insurance policy writer. While the age of the witnesses did not justify the exclusionary order, the defendant has not shown how it was prejudiced by the order. The contention that since the plaintiff\u2019s occurrence witness heard her testify the defendant\u2019s witnesses should have been permitted to hear each other testify would carry some force if the defendant had tried unsuccessfully to exclude the plaintiff\u2019s witnesses. Having made no such motion the defendant\u2019s contention must be reduced to the proposition that if its witnesses had heard each other testify they might have corrected the testimonial discrepancies which disturbed the judge. Such a proposition is untenable. The judge should have denied the plaintiff\u2019s untimely motion, but granting it where no harm resulted to the defendant was not the clear abuse of judicial discretion which demands reversal.\nFinally, the defendant contends the award for damages was excessive. The plaintiff felt pain in her neck and her knees began to stiffen on the night of the accident. For the next month she was treated by her family doctor, who fitted her with a cervical collar. Her medical costs were $326 and she missed approximately three weeks of school. At the time of trial, about three and a half years later, she had difficulty, once or twice a month, turning her neck. An expert witness testified she had a permanent chronic sprain.\nThe question of damages is one for the trial judge in a non jury trial and his decision will not be upset unless it is so excessive as to indicate passion or prejudice on his part. Healy v. Nordhous, 40 Ill App2d 320, 188 NE2d 227 (1963). In addition to medical expenses and her pain in the weeks following the accident, the plaintiff suffered discomfiture which continued to the time of trial. The award of $3,000 was not excessive.\nThe judgment is affirmed.\nAffirmed.\nSULLIVAN, P. J. and SCHWARTZ, J., concur.", "type": "majority", "author": "MR. JUSTICE DEMPSEY" } ], "attorneys": [ "Dale, Haffner, Grow & Overgaard, of Chicago (Mitchell J. Overgaard, of counsel), for appellant.", "Sussman & Hertzberg, of Chicago (Harvey S. Sussman, of counsel), for appellee." ], "corrections": "", "head_matter": "Mary Ann Bumblauskas, Plaintiff-Appellee, v. South Suburban Safeway Lines, Inc., an Illinois Corporation, Defendant-Appellant.\nGen. No. 53,173.\nFirst District, Third Division.\nApril 24, 1969.\nDale, Haffner, Grow & Overgaard, of Chicago (Mitchell J. Overgaard, of counsel), for appellant.\nSussman & Hertzberg, of Chicago (Harvey S. Sussman, of counsel), for appellee." }, "file_name": "0052-01", "first_page_order": 58, "last_page_order": 66 }