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Miller v. Chicago Transit Authority

OPINION FILED JULY 2, 1954.

LEE E. MILLER, APPELLANT,

v.

CHICAGO TRANSIT AUTHORITY, APPELLEE.



Appeal by plaintiff from the Circuit Court of Cook county; the Hon. EZRA J. CLARKE, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1953. Reversed and remanded. Opinion filed July 2, 1954. Rehearing denied July 30, 1954. Released for publication September 14, 1954.

MR. PRESIDING JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 30, 1954.

Plaintiff recovered a verdict and judgment for $500 in this action for personal injuries resulting from the alleged negligence of defendant. Plaintiff filed a motion for new trial, based upon the grounds of inadequacy of the verdict and prejudicial conduct on the part of counsel for defendant. The motion was overruled, judgment was entered, and plaintiff appeals.

There is no dispute in the record as to the liability of defendant. Plaintiff was a passenger in one of two elevated cars of defendant involved in a collision, and sustained injuries.

It appears from the evidence that immediately after the accident, plaintiff was taken to Michael Reese Hospital, where a medical examination disclosed that plaintiff had a limited motion of the cervical spine of the neck region; laceration and bleeding of the upper lip; a bloody discharge from the nostrils; abrasions of the skin and discolored areas on both shins; numbness at the base of the skull on the right side upon head movement; and acute deafness of the right ear. It also appeared that in the process of putting plaintiff to bed at the hospital, plaintiff became dizzy and started to fall. He was confined to the hospital for four days. Shortly thereafter, the attending physician observed a frequent twitch in the upper part of the right cheek and the eyelid. He testified that in his opinion there was a causal connection between the accident and the state of ill-being, and that the condition of the twitching was a permanent one.

It also appears that the medical bills, exclusive of the hospital charges, amounted to $300, and that due to his injuries, he suffered some loss in earnings.

Plaintiff, upon the trial, was successfully impeached as to the complaint of loss of hearing, by a showing that he had a previous accident, as a result of which he complained of loss of hearing, and recovered upon his claim for damages.

The jury having found defendant guilty of the undisputed negligence, plaintiff was entitled to recover reasonable damages for his injuries involved in the instant accident. Even if we eliminate any allowance for the condition of deafness complained of, we are convinced, upon this record, that the amount of the verdict is wholly inadequate. Ritholz v. Yellow Cab Co., 319 Ill. App. 115; Jensen v. City of Chicago, 306 Ill. App. 265; Novitsky v. Boland, 322 Ill. App. 698; Borkstrom v. South Shore Garages, Inc., 323 Ill. App. 285.

It is also clear to us that the verdict was induced by the prejudicial conduct of defendant's counsel. The following appears in the record upon the cross-examination of plaintiff:

"Q. Mr. Miller, I notice that you have changed the way you talk. Do you remember talking to me sometime ago when we took your testimony?

A. I recall, sir.

Q. Yes. And you talked very freely at the time?

Mr. Barbera: Very what?

Q. Very freely, instead of hesitating, do you remember that?

Mr. Barbera: Well, I object to that.

The Court: Just a moment.

The Witness: I recall I talked to you, yes sir.

Mr. Barbera: I object to that question.

The Court: Sustained. I don't know what you mean, ...


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