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Butler v. Palm

AUGUST 2, 1962.

MARTIN P. BUTLER, PLAINTIFF-APPELLEE,

v.

JAMES W. PALM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. HOWARD WHITE, Judge, presiding. Judgment reversed and cause remanded.

DOVE, P.J.

Rehearing denied September 6, 1962.

Martin P. Butler, plaintiff, shortly before nine o'clock on the morning of October 1, 1956 was operating his automobile in an easterly direction on Franklin Street in the City of Peoria. In obedience to the traffic light he stopped his car at the intersection of that street and Adams Street. He intended to make a left hand turn and then proceed north on Adams Street. While stopped, waiting for the traffic signal to change, the rear of his car was struck by an automobile being driven by the defendant, James W. Palm, who was proceeding eastward on Franklin Street.

On April 16, 1958 the instant complaint was filed to recover for the injuries alleged by plaintiff to have been suffered by him as a result of this rear-end collision. The complaint contained no general charge of negligence but did charge that defendant, (1) was driving without keeping a safe and proper lookout ahead; (2) was following more closely than was reasonable and proper contrary to the provisions of section 158(a) Chapter 95 1/2 Illinois Revised Statutes; and (c) was driving at a speed which was greater than reasonable and proper, having regard for the traffic and the use of the way. The answer of the defendant admitted that at the time and place alleged, he was driving his motor vehicle in an easterly direction along Franklin Street but denied all other allegations of the complaint. The issues made by the pleadings were submitted to a jury resulting in a verdict in favor of the plaintiff for $17,500 upon which judgment was rendered and defendant appeals.

The record discloses that on the morning of the occurrence the weather was clear and the pavement dry. There were two eastbound and two westbound lanes of traffic on Franklin Street. Defendant accompanied by his wife, was driving his 1950 Oldsmobile proceeding east on Franklin Street in the north traffic lane and close to the center line. As defendant approached the Franklin and First Street intersection which was 75 or 80 feet west of the Franklin-Adams Street intersection, defendant saw plaintiff's car and observed that it had stopped in the north traffic lane at the Franklin-Adams Street intersection, in obedience to the traffic signal. Defendant testified that he saw plaintiff's car when he was more than a block away; that he was travelling about ten miles per hour as he approached this intersection and that he never increased his speed; that when he arrived at a point thirty or forty feet west of the rear end of plaintiff's car and in the same traffic lane, he attempted to apply his brakes and when he did so the brake pedal went to the floor and remained there. He further testified that the brakes were ineffective and that the front end of his car collided with the rear of plaintiff's car which caused plaintiff's car to move forward across the crosswalk about eight or ten feet. As a result of the impact the center of the rear bumper and the back of the trunk of plaintiff's car were pushed in and the left front fender and bumper of defendant's car were bent and the left head light broken. Defendant further testified that his brakes worked satisfactory up until the time he applied them on Franklin Street at a point thirty or forty feet west of the rear end of plaintiff's car. He further testified that, after he left the scene of the accident and drove a couple of miles to Egolf Motors, his brakes were efficient.

At the time of the accident plaintiff was 37 years of age and was employed by the Montgomery Elevator Company as a service man. He had been so employed since 1946 and did maintenance work and trouble shooting in public elevators. In the course of his employment he worked on elevator controls and his duties required him to be on top of elevator cars, in the pits, and up and down the hatch. Following the collision the plaintiff and defendant remained at the scene of the accident only a few minutes and, after a short conversation, defendant proceeded in his car to Egolf Motors.

Plaintiff testified that on the morning of the occurrence he had left his office at the Montgomery Elevator Company on Seventh Street and was on his way to make some repairs to the elevator at a Sears Roebuck Store; that he was alone in his car and had stopped at the Franklin-Adams intersection in obedience to the traffic signal; that as a result of the impact his car moved forward about fifteen feet; that he got out of his car and had a conversation with Mr. Palm in which "Mr. Palm said, `We don't have to call the police on this, do we?' and I said `No.'"

The plaintiff further testified that after he left the scene of the accident he went back to his office and worked that day and continued his work at the Elevator Company until December 30, 1956.

The record further discloses that on Friday, October 5, 1956, plaintiff went to the office of Dr. Paul Roark, his family physician, who examined him and found him to be suffering from a strain or sprain of the muscles and ligaments of his neck, commonly referred to as a whiplash injury. There was limitation of motion in his neck and he suffered pain and the doctor prescribed heat, rest and massage. On October 23, 1956 Dr. Roark again examined plaintiff at his office and the x-rays which had been taken were read and disclosed no fracture. The Doctor again prescribed a treatment of heat, rest and massage. Doctor Roark testified that plaintiff made no complaint of any incoordination in his muscles or any loss of visual acuity and Dr. Roark did not observe any lack of coordination or any symptoms of brain damage or spinal cord injury on plaintiff's visits to his office either on October 5th or October 23, 1956 nor did the Doctor ever make such a diagnosis.

On Saturday, December 29, 1956 plaintiff drove his car and family to a bowling alley, arriving there about one o'clock in the afternoon. After plaintiff had been there for about an hour and a half he testified that he began to feel sick and tired, "that he couldn't see just right and that everything was blurry like." He had never had any such symptoms before.

Accompanied by his family he left the bowling alley and drove his car to his home. Upon his arrival there he vomited, had a general feeling of tiredness, thought he was catching a cold and went to bed. The following day he was taken to St. Francis Hospital in Peoria and Dr. Roark was called. Dr. Roark found him in an unconscious condition and his disability was subsequently diagnosed as a pneumonia and meningoencephalitis. The evidence is that meninges are layers of membrane which cover the brain and the spinal cord; that between these meninges and the surface of the brain is the spinal fluid and meningoencephalitis is an infection of these membranes and is present not only in the spinal fluid but in the substance of the brain itself.

The plaintiff remained in a state of unconsciousness until the middle of February, 1957, and while in this condition he developed pneumonia. On January 8, 1957 Dr. Bruce Ehmke, a specialist in medical neurology, was called, by Dr. Roark, for consultation and he made a clinical and neurological examination of the plaintiff and continued to treat him in a consulting capacity while the plaintiff remained at the hospital. On January 19, 1957, Dr. Morris Cohen, a bronchoscopist, performed a tracheotomy as an air passage to one of plaintiff's lungs was plugged with mucus.

On April 19, 1957 plaintiff was discharged from the hospital and returned to his home. He remained at his home for four or five months before returning to his work with the Montgomery Elevator Company. In October 1957 he resumed his duties at the Elevator Company and worked for six weeks and then returned to his home and remained there until July, 1958 at which time he again entered the employ of the Elevator Company and worked a couple of months. He then ceased to work for the Elevator Company and since leaving that company his employment has been irregular and his earnings were approximately one-third of what they had been prior to December 29, 1956. At the time of the trial plaintiff had a thickening of his speech, a balance problem, difficulty with his vision and his attitudes and entire personality have changed and his condition is probably permanent.

Appellant insists that the evidence discloses that the accident of October 1, 1956 was not causally related to the onset of meningoencephalitis on December 30, 1956; that incompetent medical evidence was admitted over defendant's objection; that the court erred in giving an instruction defining proximate cause and ...


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