Appeal from the Municipal Court of Evanston; the Hon. HARRY H.
PORTER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 3, 1964.
This is a personal injury action in which plaintiff was awarded a $400,000 verdict and judgment. Defendant appeals on the theory that, as a matter of law, the evidence failed to prove plaintiff's due care or defendant's negligence. Defendant also complains of prejudicial trial errors, and that the verdict is excessive.
As to the occurrence, the evidence shows that on the evening of March 16, 1961, at about 10:30, plaintiff was in a disabled and stalled automobile when it was struck from the rear by defendant's bus. The automobile was knocked off the road; its gas tank caught on fire; and the interior of the car was badly damaged.
Plaintiff, together with his elder brother, Harry, his younger brother, James, and a friend, Dennis McKiness, had gone for a ride in an automobile purchased two days before by James for $62.50. It was a clear, cold night, and the roads were dry. After riding in the vicinity of St. Charles, they started to return to Elgin, their home.
At about 10:30, the motor stopped while they were driving east toward Elgin on U.S. 20, a straight blacktop road, 24 feet in width, with a black and white line extended, dividing the highway into two opposing traffic lanes. The former owner of the car, traveling east on U.S. 20 in another car, saw the disabled car and tried to start it. Not being successful, he pushed the car for about three miles, but the motor would not start, and he finally left them. Another driver came along and pushed the disabled car for a distance of one-half or three-quarters of a mile, and again the motor would not start, so he also left. The disabled car came to a stop and remained in the middle of the eastbound lane of U.S. 20. Two of its occupants testified they tried to push the car onto the shoulder of the road but couldn't move it.
The events immediately preceding the collision are in dispute. Defendant's bus driver testified he saw no lights on the stalled car. A truck driver, who was proceeding east on U.S. 20, some distance ahead of the bus, saw the car in the eastbound lane when he was about 150 feet distant. He testified he saw no taillights, no flares, nor anyone in the road flagging traffic. He turned into the westbound lane and passed the stalled car.
Two of the occupants of the car, Harry Jines and Dennis McKiness, were not called to testify. Plaintiff, Samuel Jines, and James Jines, the car owner, testified as to flagging oncoming eastbound traffic from the rear of the car; also, that the headlights and rear lights were on during that time and at all times prior to the collision. James said that he was flashing the lights from bright to dim, and that he was given a flare by a passing truck driver, with which he waved traffic and then "stuck it" in the center line of the highway, about 25 feet behind the car.
James further testified, "When I got the flare, my two brothers and Dennis were beside my car to the right. After the flare was lit awhile, then they got back in the car. When they got back in the flare was on, and the headlights were on. The tail lights were on. After they got back in the car when the flare was out on the ground I was flagging traffic. Traffic went around my car when I was out there alone. The flare burned out after the boys were back in the car awhile. I didn't tell anybody in the car that the flare had burned out. They didn't get out after the flare had burned out. . . . None of these cars stopped. They went around my car after the flare was out, about three, I would say. . . . After these cars went by then I saw this big object coming. It was a good distance away, either a half mile or He had his lights on. As he gradually came on, getting closer, I was going to flag him, and when he got within a hundred feet I heard tires screeching, . . . I yelled to my brothers and the McKiness boy, `Hey, he's not going to stop.' . . . He was in the eastbound lane when I heard it. When I heard the screech of wheels I just had enough time to run to the shoulder and get out of the way. I ran to the right shoulder, on the south side, the same side of the street that the car was on. Then the bus just ran right into the back of my car. . . . At the time that the bus hit the rear end of my car, the tail lights were on. The flare was out."
Plaintiff testified that after flagging for awhile, he, Harry, and McKiness got back into the car. His purpose in re-entering the car was to dry his legs and to get a flashlight. This was two to five minutes before the occurrence. He was sitting in the back seat of the car and noticed headlights on the inside of the car and heard his brother yell, "It isn't going to stop." He looked back and saw the big windows and the lights, and the collision occurred.
The bus driver testified that he was en route from Rockford to Chicago, traveling at a rate of 45 miles per hour in a 50-mile zone. He had his depressed or dim headlights on, which cast a beam out in front for about 200 feet. When he was about 150 feet away, he saw something on the road, which turned out to be an automobile in the eastbound lane, without lights. He immediately applied his service brake and started to slow down and attempted to turn to the left to pass around the stalled vehicle. As he started to make his turn he saw a person near the rear of the car moving across the left-hand or westbound lane. Rather than run this person down, he turned back into the eastbound lane and collided with the stalled automobile at a speed of 15 to 20 miles an hour. His tires left 78 feet of skidmarks west of the point of collision.
As to damages, the evidence shows that plaintiff was then 21 years old, in good health before the collision, married and the father of two children. He had quit school after the ninth grade, but secured a high school diploma while in the army. He had spent a short time in jail for burglary. He was unemployed at the time of the occurrence, but during the preceding year he had earned about $1,150.
The medical testimony as to plaintiff's injuries is not disputed, and it is admitted that his physical condition is permanent. Plaintiff is now a quadriplegic all four extremities are paralyzed. A "fracture dislocation" had occurred (one vertebra slides forward on another) and "obviously the spinal cord is injured." From a functional viewpoint, it was a transected spinal cord, which resulted "in almost complete paralysis of the upper extremities, and a complete paralysis of the trunk and lower extremities. . . . The functions of the bladder and bowel and the private parts of a person are controlled by the spinal cord. In this case this transected spinal cord had the effect of a complete loss of control. He lost control of his bladder and bowels."
A urologist testified that in his opinion "a man in Mr. Jines' condition, restricted to the urological condition, is more susceptible to body infection than is a person who does not have the urological condition, because the patient is at flat bed rest, for one thing, and the muscles don't have the normal tonus or function that they normally do, and he lies more or less as a vegetable and functions just automatically. . . . This urinary condition and his inability to voluntarily urinate is permanent. His inability to empty his bowel is permanent."
Plaintiff remained in the hospital six months. He was also treated at the Rehabilitation Institute of Chicago. A specialist in rehabilitation and physical medicine testified that at the time the plaintiff was discharged from the Institute, he was "rehabilitated to his optimum physical potential. . . . He might learn a few minor things still to do by doing and as time goes on, but basically he has learned those things which can be expected of him. . . ." He can reasonably be expected to live out his life expectancy if given the proper care.
As to his daily life, an orderly must dress him; sponges are placed on the wheelchair to alleviate the pressure which creates sores on his body; he must be served at the dinner table; he is given exercises of a completely passive nature three times a day; he is bathed by attendants twice a week and receives daily sponge baths and alcohol rubs three or four times a day in addition to his medication; he takes a sedative every night and a suppository every morning; each day he is under constant observation for marked depression; he receives bladder irrigation twice daily under sterile procedures; if he is not changed frequently, he develops bed sores; a Foley catheter that he constantly wears is held in place by a balloon blown up inside the bladder; the catheter drains the urine off the bladder, then through the catheter to a bag attached to his leg. As to the use of his body, he can "feel hardly anything" below the level of his chest. He cannot use his hands to any significant extent and cannot open his hands by himself or voluntarily use his fingers. The cupped position of his hands is a characteristic of quadriplegia. The only way he can move his legs is by pushing them with his hands and arms. He will never walk again, and he is extremely depressed. He cannot voluntarily bend his body from the waist, either forward or backward. His bowel movements are controlled by lubrication, stimulation and manual extraction of impacted material. He will require the use of a catheter for urination for the rest of his life. His condition requires permanent care, and he must remain in a sanitarium for the rest of his life, and in the most sterile conditions, because the tube from the catheter must be inserted a considerable distance into the body.
At the time of the trial, plaintiff's life expectancy was 47.68 years. The evidence shows that the present reasonable charge for sanitarium care of plaintiff is about $6,000 a year. His medical expenses incurred to the time of the trial amounted to $16,000.
Defendant's contentions have been scrutinized closely and carefully. The issues are considered in what we believe to be the logical sequence.
Initially, we consider the principal defense of contributory negligence or lack of due care by plaintiff. Defendant has contended throughout the proceedings that "if a person is in a position of safety and abandons it to go into a position of danger, his conduct is such that contributory negligence should be imputed to him." The jury answered "Yes" to defendant's special interrogatory, "Was the plaintiff, Samuel Jines, in the ...