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Sesterhenn v. Saxe

OCTOBER 19, 1967.

EDWARD J. SESTERHENN, JEAN SESTERHENN AND JOHN SESTERHENN, A MINOR, BY EDWARD J. SESTERHENN, HIS FATHER AND NEXT FRIEND, PLAINTIFFS-APPELLEES,

v.

RUTH B. SAXE, DEFENDANT-APPELLANT, AND ARTHUR BLADOWSKI, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS J. COURTNEY, Judge, presiding. Judgment affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied December 7, 1967.

In a personal injury suit involving a number of automobiles, the jury returned verdicts for the plaintiffs and against the defendant Ruth Saxe in the sum of $8,000 for Jean Sesterhenn, $1,500 for Edward J. Sesterhenn and $10 for John Sesterhenn. Judgment was entered on the verdicts. On a cross claim by defendant Saxe against defendant Bladowski, the jury returned no verdict, but the court entered judgment nevertheless in favor of Bladowski for reasons which we will later consider. An appeal was taken by defendant Saxe. The facts follow.

Plaintiff Jean Sesterhenn was driving an automobile in a northerly direction in the outside lane of a four-lane highway, Route 45, in Cook County. The posted speed limit was 65 miles an hour. Her husband Edward and her son John were with her. Defendant Ruth Saxe was driving her car in the opposite direction in the inside lane and undertook to pass a car driven by Laverne Davis. Approximately three car lengths ahead of the Davis car in the outside lane was a car driven by the other defendant Arthur Bladowski. It was raining and Bladowski swerved his car toward the inside lane to avoid splashing a Catholic nun who was standing alongside the road. This, it appears, caused Mrs. Saxe to apply her brakes. The pavement was wet and the Saxe car skidded out of control across the center line and into oncoming traffic, where it struck the Sesterhenn car. Conflicting evidence was presented at the trial regarding the relative positions of the vehicles, the speed of the Saxe car, and the distance Bladowski swerved to avoid splashing the pedestrian. The parties agree however that only two vehicles made contact.

Mrs. Saxe testified that she was going 40 miles an hour and that the front bumper of her car was even with the rear bumper of Bladowski's car when Bladowski swerved several feet across the line which divided his lane from hers. Laverne Davis, a witness called by Saxe, testified on cross-examination that he had no idea how fast he was traveling at the time of the accident and that he had no idea how fast the Saxe car was traveling. He admits however that he had made a written statement shortly after the accident in which he estimated his speed at 55 to 60 miles an hour when Mrs. Saxe was passing him.

Defendant Saxe first contends that it was error for the court to allow a diagram which was not in evidence to be exhibited to the jury without showing the jury the writing beneath the diagram. Davis prepared the document about 3 weeks after the accident at the request of plaintiffs' attorney. In addition to answering the questions on the form, he sketched a diagram of the accident on the back of the report. The diagram and description are reproduced as follows:

"Cars A & B were proceeding south toward Des Plaines, Car C was passing Car A and was about to pass Car B when Car B swung over his line to miss a Catholic sister standing in the road. Car C to avoid hitting Car C [sic] cut her wheels to the left and apparently applied her brakes which threw her into a skid in front of approaching Car D."

At the trial Davis testified as to the facts; that he was driving in the outer lane two or three car lengths behind the Bladowski car when the accident occurred and that the Saxe car had passed his car and was passing the Bladowski car when Bladowski moved to his left and Mrs. Saxe applied her brakes. In an effort to impeach Davis's testimony as to the proximity of the Saxe car to the Bladowski car, counsel for Bladowski asked the witness to describe the diagram. The witness did so and admitted that in the diagram he placed the Saxe car next to his own about 3 car lengths behind Bladowski. There was no objection to this testimony and Davis was then excused. The matter did not arise again until the end of the trial when exhibits were being offered into evidence. At that time counsel for Bladowski offered the diagram that Davis had described, and the court refused to allow it in evidence. Counsel for Bladowski then asked the court if he could show the diagram to the jury since they had heard its contents. Counsel for Saxe objected unless the narrative was also shown. The court allowed the jury to see the diagram but not the narrative which was covered over. The court's reason for so doing was that the witness had previously testified to everything contained therein. We will first consider defendant Saxe's charge that this was error.

It is clear from the record that defendant Saxe passed Davis and was passing Bladowski when she lost control of her vehicle, swerved out of her lane and skidded across the center line and inside lane going the opposite direction into the outside lane where she struck plaintiffs' car. All this occurred in a matter of seconds. The vehicles were traveling at speeds somewhere in the range of 40 to 65 miles an hour and their locations relative to each other were changing every instant. The ruling by the court could not have resulted in prejudice to the defendant Saxe. The narrative added nothing to the testimony of Davis and the diagram could act only as a limited aid to the jury from which they could discern the layout of the highway and the direction of the traffic. While it was error for the court to overrule defendant Saxe's objection to the showing of the diagram unless the whole of it was admitted into evidence, we consider the court's ruling to be harmless error. Kinsch v. Di Vito Const. Co. Inc., 54 Ill. App.2d 149, 203 N.E.2d 621, 626; Piechalak v. Liberty Trucking Co., 58 Ill. App.2d 289, 208 N.E.2d 379, 384; Adamaitis v. Hesser, 56 Ill. App.2d 349, 206 N.E.2d 311, 316.

Defendant Saxe's second contention is that the damages awarded plaintiff Jean Sesterhenn were grossly excessive and that a remittitur should be ordered. Mrs. Sesterhenn was awarded $8,000 although her special damages were only $84. There was ample testimony however upon which a jury could base a finding that her injuries were permanent in nature. A specialist in orthopedic medicine examined the plaintiff in the courtroom 7 years after the accident and testified that she was suffering from the residual effects of a whiplash injury sustained in the accident, that the flexion of her neck was restricted 15 degrees, that the condition was permanent and that there was no form of therapy to relieve the discomfort.

[2-4] The test of the propriety of the amount of damages awarded is not the amount of out of pocket expense, but whether or not the amount of the verdict falls within the limits of fair and reasonable compensation. O'Keefe v. Lithocolor Press, Inc., 49 Ill. App.2d 123, 199 N.E.2d 60, 67; Myers v. Nelson, 42 Ill. App.2d 475, 192 N.E.2d 403, 406; Barango v. Hedstrom Coal Co., 12 Ill. App.2d 118, 138 N.E.2d 829, 838. The jury's verdict with respect to the amount of damages will not be disturbed unless it appears that it was the result of prejudice or passion. Ford v. Friel, 330 Ill. App. 136, 70 N.E.2d 626; Healy v. Nordhous, 40 Ill. App.2d 320, 188 N.E.2d 227, 230. There is no merit in Saxe's second contention.

[5-7] Her third contention is that during closing arguments statements were made by plaintiffs' counsel which were outside the evidence and greatly prejudicial to the defendant. This contention is based on remarks made to the jury regarding the speed of the Saxe car and the fact that Mrs. Saxe was not sitting at the counsel table. In her motion for new trial, defendant Saxe did not specify with particularity the remarks regarding the speed of her car nor did she object to them at the time they were made. She is precluded from urging this as error on review. Ill Rev Stats, c 110, § 68.1(2) (1965). The objection made to comments as to where Mrs. Saxe was sitting during the trial is trivial. A jury trial has often been compared to the unfolding of a stage drama. Both require conformity with many technical rules and procedures, but there is one great difference. A stage drama is produced after a long period of rehearsal and after each actor has learned to play his part correctly. No provision is made for such preliminary preparation before a jury trial and it inevitably follows that in every such trial of any consequence there will be some error. Plaintiffs in the instant case were injured 10 years ago and have not yet received a final determination of their rights. A reviewing court should require a new trial only when it appears there was substantial error. Remarks regarding where Mrs. Saxe sat during the trial, whether at the counsel table or in the rear of the courtroom, can hardly warrant retrial of the case.

Defendant Saxe's fourth contention is that the trial court erred in giving the following instruction over her objection:

"If you decide for the Plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them for any of the following elements of damage proved by the evidence ...


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