{ "id": 5127971, "name": "Charles P. Hectus, Appellee, v. Chicago Transit Authority, Appellant", "name_abbreviation": "Hectus v. Chicago Transit Authority", "decision_date": "1954-11-03", "docket_number": "Gen. No. 46,219", "first_page": "439", "last_page": "448", "citations": [ { "type": "official", "cite": "3 Ill. App. 2d 439" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 U. S. 29", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 301855 ], "opinion_index": 0, "case_paths": [ "/us/321/0029-01" ] }, { "cite": "90 L. Ed. 421", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "327 U. S. 645", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 413818 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/327/0645-01" ] }, { "cite": "407 Ill. 121", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2639101 ], "opinion_index": 0, "case_paths": [ "/ill/407/0121-01" ] }, { "cite": "337 Ill. App. 369", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5014755 ], "opinion_index": 0, "case_paths": [ "/ill-app/337/0369-01" ] }, { "cite": "338 Ill. App. 514", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5005328 ], "opinion_index": 0, "case_paths": [ "/ill-app/338/0514-01" ] }, { "cite": "241 Ill. 169", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5656983 ], "opinion_index": 0, "case_paths": [ "/ill/241/0169-01" ] }, { "cite": "200 Ill. 456", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5592958 ], "opinion_index": 0, "case_paths": [ "/ill/200/0456-01" ] }, { "cite": "285 Ill. App. 431", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3352863 ], "opinion_index": 0, "case_paths": [ "/ill-app/285/0431-01" ] }, { "cite": "225 Ill. 572", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3329848 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/225/0572-01" ] }, { "cite": "239 Ill. 548", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 849034 ], "opinion_index": 0, "case_paths": [ "/ill/239/0548-01" ] }, { "cite": "2 Ill.2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12121670 ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0074-01" ] }, { "cite": "401 Ill. 172", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306986 ], "opinion_index": 0, "case_paths": [ "/ill/401/0172-01" ] }, { "cite": "331 Ill. App. 143", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5058518 ], "opinion_index": 0, "case_paths": [ "/ill-app/331/0143-01" ] }, { "cite": "348 Ill. App. 495", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5098742 ], "opinion_index": 0, "case_paths": [ "/ill-app/348/0495-01" ] }, { "cite": "117 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill.App.2d 261", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5118265 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/1/0261-01" ] }, { "cite": "391 Ill. 52", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2512417 ], "opinion_index": 0, "case_paths": [ "/ill/391/0052-01" ] }, { "cite": "2 Ill.App.2d 102", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5122775 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/2/0102-01" ] }, { "cite": "408 Ill. 343", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2643765 ], "opinion_index": 0, "case_paths": [ "/ill/408/0343-01" ] } ], "analysis": { "cardinality": 757, "char_count": 13051, "ocr_confidence": 0.495, "pagerank": { "raw": 1.0821305103575346e-07, "percentile": 0.5627677520967439 }, "sha256": "031270780c475e241623acbdc42e4c3b5e918abcc6f0e3b8f0f376a6c0b5cca1", "simhash": "1:a84edee09095069c", "word_count": 2191 }, "last_updated": "2023-07-14T21:04:26.122675+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Kiley, P. J. and Feinberg, J., concur." ], "parties": [ "Charles P. Hectus, Appellee, v. Chicago Transit Authority, Appellant." ], "opinions": [ { "text": "Mr. Justice Lewe\ndelivered the opinion of the court.\nDefendant appeals from a judgment in the sum of $35,000 entered on the verdict of a jury in an action by plaintiff to recover damages for personal injuries sustained by Mm as a result of being struck by a streetcar. Defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict were overruled.\nAs grounds for reversal defendant contends (1) that plaintiff was a trespasser; (2) that, even if plaintiff\u2019s status was that of an invitee, he failed to establish his own due care and negligence on the part of the defendant; (3) that plaintiff\u2019s testimony at the trial is without probative force and should be disregarded because it was in conflict with his testimony on his pretrial deposition; (4) that the court committed reversible error in instructing the jury regarding plaintiff\u2019s intoxication; and (5) that the verdict and judgment were against the manifest weight of the evidence.\nThere was evidence that: On August 25, 1948, plaintiff, aged twenty, accompanied by two friends, spent several hours in the evening bowling. About midnight plaintiff and his companions left the bowling alley and went to a nearby tavern where they remained until 1:00 o\u2019clock a. m. During this entire period plaintiff had consumed three or four glasses of whiskey and about eighteen bottles of beer.\nAfter leaving the tavern plaintiff boarded a northbound Ashland Avenue streetcar and alighted at the intersection of Madison Street where he got on a westbound Madison-Street car. At the western terminus of the Madison-Street line at Austin Boulevard. the westbound cars turn into a loop. The loop lies within a rectangular area 185 feet long and 105 feet wide located at the northeast corner of the intersection of Madison Street and Austin Boulevard in the City of Chicago. After clearing the sidewalk on the north side of Madison Street the westbound streetcars stop to discharge their passengers. At this point the westbound cars face north. After discharging their passengers the cars travel westward around the loop until they face south. \"While facing south the cars stop at the north sidewalk of Madison Street for the purpose of receiving easthound passengers. There are four streetcar tracks in the loop.\nImmediately north of the north sidewalk on Madison Street there is a frame building housing a restaurant known as \u201cThe Salt Box.\u201d Back of the restaurant there is a radio tower and directly north of the radio tower there is a men\u2019s washroom with an entrance on the north side. All of these structures are encircled by streetcar tracks.\nAfter alighting from the westbound streetcar in the loop at about 1:30 a. m. on August 26th plaintiff walked west to the washroom where he remained for about five minutes. Upon leaving the washroom he proceeded east toward a wall along the east boundary of the loop area. Plaintiff got across \u201cthe first set of tracks\u201d and as he was walking across the westerly tracks in front of a standing westbound streetcar it suddenly started without warning and knocked him down. This streetcar followed the one on which plaintiff had been riding as a passenger into the loop.\nAfter the impact plaintiff was found lying parallel with and about eight or ten inches from the right side of the streetcar alongside of the front trucks and about 8 feet from the front of the streetcar. His head was toward the rear. At the time of the occurrence the interior of the streetcar which struck plaintiff was illuminated. The headlight, as well as two cowl lights on the front of the car, was burning. The headlight illuminates an area of twenty or thirty feet in front of the car. That portion of the loop area where the streetcar was standing immediately before the accident was lighted by street lamps on Madison Street.\nThe motorman of the streetcar involved in the accident, one Corcoran, testified, \u201cIt was not pitch dark there. You could see somebody if they were walking there. I did not see Mr. Hectus [plaintiff] that night before I saw him crawling away from under the car.\u201d According to plaintiff\u2019s testimony lie was a foot or two in front of the standing streetcar when he stepped onto the tracks and the right front of the streetcar came in contact with him. Plaintiff admits that at the time of the occurrence he was intoxicated.\nWith respect to defendant\u2019s contention that plaintiff was a trespasser, it argues that plaintiff was roaming about on a part of defendant\u2019s premises where he had no right to be. This argument is based on the theory that the men\u2019s washroom in the loop was intended for the exclusive use of defendant\u2019s employees. The evidence on this point is conflicting. There was evidence, however, tending to prove that the washroom was used by the public. A police officer testified that he used the men\u2019s washroom on many occasions at night for a period of two years prior to the accident; that he saw persons not employed by the defendant use it, and that he never found the door locked. Motorman Corcoran admitted that he \u201cgave lots of guys\u201d other than employees of the defendant \u201cfavors by opening the door for them.\u201d Another motorman stated that the washroom was used by streetcar passengers and other people.\nWhether plaintiff was an invitee presented a question of fact for the jury to determine. We think the evidence is ample to warrant a finding that the plaintiff was an invitee. See Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343; Larson v. Illinois Cent. Ry. Co., 2 Ill.App.2d 102.\nDefendant next contends that it was entitled to a directed verdict for the reason that plaintiff failed to maintain his burden of proof. In considering defendant\u2019s motion the question presented is whether there is any evidence which, taken in its aspects most favorable to plaintiff, tends to prove plaintiff\u2019s cause of action. (Berg v. New York Cent. R. Co., 391 Ill. 52.) This court cannot reweigh the evidence. We only look at that which is favorable to the plaintiff. (Thomas v. Douglas, 1 Ill.App.2d 261, 117 N.E.2d 417; George v. E. I. du Pont de Nemours & Co., 348 Ill. App. 495.)\nAlthough plaintiff\u2019s testimony is uncorroborated we do not think that it is contrary to the physical facts. Nor is his testimony inherently improbable. Plaintiff\u2019s presence alongside of the front trucks of the streetcar where the crew said they found him is consistent with his version of the occurrence that he was struck by the right front of the streetcar. A pedestrian crossing in front of a streetcar can reasonably assume that it will not start without some kind of warning. In these circumstances the jury could find that defendant\u2019s motorman did not exercise due care, first, in failing to see the plaintiff arid, second, in failing to give plaintiff some warning before starting the streetcar. In any event, the question of plaintiff\u2019s contributory negligence and defendant\u2019s negligence presented an issue of fact for the jury. (Schneiderman v. Interstate Transit Lines, 331 Ill. App. 143, affirmed 401 Ill. 172.) See also Ney v. Yellow Cab Co., 2 Ill.2d 74.\nThe record shows that shortly after plaintiff was injured he was taken to the West Suburban Hospital where in conversation with Dr. Monroe he told the doctor that he did not recall any of the circumstances of the accident; that about two weeks after the accident plaintiff gave a signed statement to an investigator employed by the defendant, in which he stated that, \u201cAll I can recall at this time is that I had been run over by a streetcar and heard the compressor on the car. Then I blacked out ... I cannot possibly reconstruct the details of the accident.\u201d The record further shows that in his pretrial deposition, taken more than two years after the occurrence, plaintiff stated that when he got off the Madison-Street car he started for the fence along the east boundary of the loop, intending \u201cto sit down,\u201d and that he remembered he was \u201cunder the streetcar and a lot of people around there.\u201d\nDefendant maintains that plaintiff\u2019s sworn testimony in his pretrial deposition is a judicial admission and that Ms contradictory testimony on the trial is of no probative force. Plaintiff testified at the trial that the events with respect to the occurrence came to him for the first time after he had listened to a discovery deposition given by Corcoran, the motorman, on September 14, 1950.\nImpeachment of a witness does not render his testimony nugatory but goes only to its credibility and weight. (Fuhry v. Chicago City Ry. Co., 239 Ill. 548; Godair v. Ham Nat. Bk., 225 Ill. 572; Acquaviva v. Madison County Mut. Automobile Ins. Co., 285 Ill. App. 431. In Godair v. Ham Nat. Bk., 225 Ill. 572, the court said, at page 577, \u201cIt has uniformly been held by this court that the maxim falsus in uno falsus in omnibus should only be applied in cases where a witness has knowingly and willfully given false testimony.\u201d In the instant case plaintiff\u2019s testimony has not been contradicted by the testimony of other witnesses upon a material matter If he made a false statement through mistake or misapprehension the jury could not disregard his testimony altogether.\nCriticism is leveled at plaintiff\u2019s given instruction 23 which reads, \u201cThe fact that plaintiff was intoxicated at the time of the occurrence in question cannot be used as a defense in this case unless it appears that said intoxicated condition of plaintiff proximately contributed to cause the accident in question and the jury sustained by him.\u201d Defendant says that this instruction improperly shifts the burden of proof and tells the jury in effect that they are entitled to ignore the admitted fact of voluntary intoxication unless defendant can affirmatively show that it contributed to plaintiff\u2019s injuries.\nVoluntary intoxication will not excuse a person from such, care as may he reasonably expected from one who is sober. (South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456.) To the same effect see Wilcke v. Henrotin, 241 Ill. 169. Nor does voluntary intoxication constitute negligence in law. The jury were properly instructed with respect to contributory negligence and voluntary intoxication by defendant\u2019s given instructions numbered 20 and 24. One of the defenses relied on by defendant was plaintiff\u2019s contributory negligence. In our view the instruction complained of is not in direct conflict with defendant\u2019s instructions. While we do not approve of the form of this instruction because it is incomplete, we think that it was rendered harmless by defendant\u2019s instructions. See McMillian v. McLane, 338 Ill. App. 514. Beading the instructions as a series we are of the opinion that the instruction complained of does not constitute ground for reversal. (Aldridge v. Morris, 337 Ill. App. 369.)\nFinally defendant contends that the verdict is against the manifest weight of the evidence for the reason that plaintiff has impeached himself by prior statement and testimony under oath on his pretrial deposition and that versions of the occurrence given by plaintiff and Corcoran, the motorman of the streetcar which struck plaintiff, cannot be reconciled. Corcoran testified that he did not see the plaintiff until after he was injured. This negative testimony is not corroborated by other witnesses. Nor did any witness testify that plaintiff did not pass in front of the standing streetcar.\nIn Lindroth v. Walgreen Co., 407 Ill. 121, at page 132, the court in adverting to Lavender v. Kurn, 327 U. S. 645, 90 L. Ed. 421, 66 S. Ct. 740, said: \u201cWhenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.\u201d To the same effect see Tennant v. Peoria and Pekin Union Ry. Co., 321 U. S. 29. That the jury could have drawn different inferences, as defendant suggests, does not justify this court in setting aside the verdict.\nIt is uncontroverted that the plaintiff suffered severe and permanent injuries. The front part of the left foot was removed. He lost the muscle substance of the back side of his right leg. The normal weight-bearing surface of the bottom of the right foot, including the toe, is gone, causing plaintiff to limp. He has virtually no ankle motion. In view of the nature of the injuries we cannot say that the verdict is excessive.\nFor the reasons stated, the judgment is affirmed.\nJudgment affirmed.\nKiley, P. J. and Feinberg, J., concur.", "type": "majority", "author": "Mr. Justice Lewe" } ], "attorneys": [ "Thomas C. Strachan, Jr., James O. Dwight, Erwin H. Wright, and George C. Bunge, all of Chicago, for appellant; Arthur J. Donovan, of Chicago, of counsel.", "Joseph Barbera, of Chicago, for appellee." ], "corrections": "", "head_matter": "Charles P. Hectus, Appellee, v. Chicago Transit Authority, Appellant.\nGen. No. 46,219.\nOpinion filed November 3, 1954.\nRehearing denied November 26, 1954.\nReleased for publication December 9, 1954.\nThomas C. Strachan, Jr., James O. Dwight, Erwin H. Wright, and George C. Bunge, all of Chicago, for appellant; Arthur J. Donovan, of Chicago, of counsel.\nJoseph Barbera, of Chicago, for appellee." }, "file_name": "0439-01", "first_page_order": 477, "last_page_order": 486 }