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Johanneson v. Ring

APRIL 20, 1967.

GUDRUN B. JOHANNESON, ET AL., PLAINTIFFS-APPELLANTS,

v.

JOHN M. RING, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, JR., Judge, presiding. Judgment affirmed.

MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.

This is an appeal brought by Gudrun Johanneson and Benjamin Johanneson, her husband, from judgments in their favor, entered on jury verdicts, of the Circuit Court of Winnebago County on the grounds that the damages awarded were wholly inadequate and against the manifest weight of the evidence; and that certain errors of the trial court contributed to the low verdicts.

On the morning of March 5, 1963, at approximately 9:30 a.m. in the City of Rockford, Gudrun Johanneson was driving home alone from a laundromat. At the intersection of Newburg and Alpine Roads she turned left to proceed to the east on Newburg Road. It was raining and sleeting, and the streets were covered with ice and extremely slippery. Shortly after her turn, the defendant, John Ring, also alone, made an identical turn off of Alpine and proceeded to the east on Newburg Road. Ring noticed Mrs. Johanneson's automobile approximately 150 feet in front of him and testified that her rear wheels were spinning and that her car was not moving. Mrs. Johanneson denied that her automobile had stopped but stated that, because of the slick pavement, her speed was greatly reduced. The grade of Newburg Road is quite flat to the east from Alpine Road but begins a slight incline at the point that Ring observed the other car.

Ring applied his brakes but was unable to stop his automobile and it collided with the rear of the Johanneson car near the center of the rear bumper. Both automobiles were damaged but, after the police were notified and the usual reports completed, both Ring and Mrs. Johanneson proceeded on their respective ways in their vehicles.

Mrs. Johanneson stated that her head "snapped" at the moment of impact and that she experienced "an awful pain" through her head and neck. She drove home, in considerable discomfort, called her husband by telephone and he took her to see a Dr. Harshfield, their family physician, that afternoon. Dr. Harshfield testified that his examination disclosed tenderness and rigidity in Mrs. Johanneson's neck and that an X ray, taken that day, revealed a straightening of the normal curve of the neck and that the neck was slightly twisted. He also detected muscle spasm and prescribed muscle relaxants and narcotic injections to relieve her pain. Dr. Harshfield continued to see Mrs. Johanneson for several months and, in addition to the narcotics, treated her with a cervical collar and ultrasound treatments to relieve her discomfort. On May 7, 1963, Dr. Harshfield determined that his patient's progress was unsatisfactory and he referred her to Dr. Donald Lyddon, an orthopedic surgeon, in regard to a possible ruptured disc.

It was Dr. Lyddon's opinion, after he had obtained a history from Mrs. Johanneson, that she had a damaged cervical disc and he recommended an anterior neck fusion to correct her condition. To locate the particular disc that is damaged, if any, an incision is made through the neck and a dye is injected into the disc spaces since an undamaged disc will resist the injection of the dye. This procedure revealed that Mrs. Johanneson did have a damaged disc and the fusion was performed by drilling a hole into the damaged disc space, removing as much of the drilled material as possible, and inserting a piece of bone removed for that purpose from her hip. A fusion of this type inevitably creates some disability in the neck by stiffening the replaced joint. This operation was performed on June 10, 1963, and Mrs. Johanneson remained in the hospital for five days. Dr. Lyddon continued to see her regularly and considered the operation a success. In October, 1963, she complained of a recurrence of pain on the left side of her neck but in his opinion that was caused by muscle spasm and he prescribed relaxants and physiotherapy. On April 16, 1964, he last saw his patient professionally and he recommended no further treatments since "she was feeling very good."

Mrs. Johanneson denied that she felt "very good" and in January of 1965, consulted Dr. William B. Fischer, a teacher of orthopedic surgery at Northwestern University. Dr. Fischer took the history, examined her, and was of the opinion that she suffered from an impingement of the 7th and 8th cervical nerves. An electromyographic examination was made that indicated a diminished nerve supply to her left hand and intramuscular weakness. It was Dr. Fischer's opinion that these conditions were caused by the impingement of the cervical nerves which were themselves caused by the accident of March, 1963, or the anterior fusion. He recommended conservative therapy since a further operation in the spinal cord area was extremely dangerous and could result in quadraplegia.

Count I of the amended complaint charged Ring with negligence and asked for damages in the amount of $75,000 for the injuries suffered by Gudrun Johanneson. Count II sought $25,000 for Benjamin Johanneson for expenses incurred by him for his wife's injuries, and loss of her services.

At the conclusion of the trial, the jury returned verdicts of $2,500 and $2,200 for Gudrun and Benjamin respectively and judgments on the verdicts were entered accordingly. Motions for a new trial were denied and this appeal resulted.

The plaintiffs first complain that the facts disclose that the defendant was negligent and that Gudrun Johanneson was free from contributory negligence as a matter of law and that therefore the court committed reversible error in its denial of their motion for a directed verdict on the issue of liability. They contend that although the jury ultimately determined that Ring was, in fact, liable, that the error contributed to the low awards. The recent case of McManus v. Feist, 76 Ill. App.2d 99, 221 N.E.2d 418, also was concerned with a so-called "rear end" collision. The court upheld the trial court's denial of a motion for a directed verdict on the issue of liability and stated at page 103:

". . . In order that a verdict upon liability may be directed the facts must be susceptible to but one interpretation and it is improper to direct a verdict where there is a conflict in the evidence. . . ."

After a motion by the plaintiff for a directed verdict, the court should consider all of the evidence in its aspect most favorable to the defendant, and all reasonable inferences that can be drawn from that evidence, and if there is any evidence or inference which tends to prove the position of the defendant, the motion must be denied. Johnson v. Skau, 33 Ill. App.2d 280, 284, 179 N.E.2d 140; Palmer v. Poynter, 24 Ill. App.2d 68, 71, 163 N.E.2d 851.

When this principle is applied to the case before us we must conclude that the plaintiffs' motion was properly denied. There was testimony that the Johanneson car was completely stopped in the road and it could be concluded that therefore the driver was not free from contributory negligence or, more likely, the evidence could support the conclusion that the accident resulted from the treacherous road conditions and was unavoidable. The determination of the jury that Ring was negligent appears sound but in any event the decision was correctly left for its deliberation.

The plaintiffs contend that the awards of the jury were wholly inadequate and against the manifest weight of the evidence. Benjamin Johanneson sought recovery both for his expenditures on behalf of his wife for medical, hospital and professional aid and for the loss of her services to him. Evidence was submitted that Mr. Johanneson paid bills that amounted to $2,121.21 for medical help for his wife. However, no evidence was offered as to his damages for loss of her services ...


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