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Christianson v. City of Chicago Heights

DECEMBER 16, 1968.

BERNICE CHRISTIANSON, PLAINTIFF-APPELLEE,

v.

CITY OF CHICAGO HEIGHTS, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WILLIAM M. BARTH, Judge, presiding. Judgment affirmed.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

This was a suit for personal injuries filed by the plaintiff, Mrs. Bernice Christianson, against defendant, the City of Chicago Heights, a municipal corporation, to recover damages for the injuries occasioned by the alleged negligence of the defendant in maintaining a public sidewalk within its corporate boundaries. A verdict in favor of Mrs. Christianson and an assessment of damages of $22,500 were rendered by the jury, whereupon the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.

On August 3, 1962, Mrs. Bernice Christianson, 59 years old, was sent by her employer to purchase certain office supplies from Cook's office supply store located in Chicago Heights, Illinois. Following her purchase, as she was returning to her automobile, the right heel of her shoe slid off a depression in the public sidewalk, in front of the store, and she fell to the ground. As she went down she heard a cracking sound, and immediately after her downward motion ceased, she found herself sitting on her left leg, her left knee bleeding, and felt sharp pain in her right ankle. The sidewalk upon which Mrs. Christianson fell contained a rise and depression between the slabs of concrete of approximately two to two and a half inches. She was taken to St. James Hospital in Chicago Heights, by two employees of Cook's, where her left knee, which was still bleeding slightly, was washed and bandaged. The treating physician recorded no further treatment of the left knee while she was in the hospital. The physician examined the right ankle and ordered it packed in ice. The next morning the ankle was X-rayed, and the following day a cast applied. The X ray of the right ankle revealed a fracture of the medial malleolus, with no sprains or displacement of fractured fragments. Mrs. Christianson spent two days at the hospital and the following three months at home in a wheelchair. On September 25, 1962, approximately seven weeks after the fall, the cast was removed and X rays were taken of the ankle. These X rays revealed the fracture was hardly visible, yet she was still dependent upon the wheelchair until the first week of November when she attempted to walk.

With respect to Mrs. Christianson's left knee, on December 15, 1962, she complained to her physician of pain which she had felt for approximately six weeks, yet an X ray taken at this time was recorded as showing a satisfactory condition of the knee with no unusual symptoms and no fracture or dislocation. As a child, Mrs. Christianson was afflicted with polio, causing a four-inch shortening of her left leg, a left pelvic tilt and curvature of the spine, and, as she testified concerning this condition, "I have always had it. It has always been with me that I remember." In November, 1963, another doctor examined the left knee and he testified at the trial that there was a permanent displacement of the left patella (left kneecap) due to a ruptured quadriceps tendon, so that the kneecap was not pulled or held up in its normal position. Plaintiff testified this condition "has never gotten any worse or any better; it is with me." Mrs. Christianson did not visit her physician again because of the left knee until April 16, 1965, when she sustained a fall while obtaining the mail from her front yard mailbox. As she was walking to the mailbox, her left leg "just gave out," and she fell upon the pavement. The doctor came to her home and recommended an X ray be taken immediately. An X ray showed no fracture, but the left knee was swelled up considerably and there were abrasions and a blood clot on the surface of the knee.

At the trial, the plaintiff introduced evidence as to the circumstances of the fall, the condition of the sidewalk, and the damages sustained by her; she also introduced evidence pertaining to the second fall in April of 1965. Mrs. Christianson testified that after removal of the cast, she has required a cane to assist her in walking, and that since the injury she has not been able to get around as she once was able. At the time of the trial, February, 1967, she was still using a cane.

Mr. Christianson testified that following the fall of August 3, 1962, plaintiff, his wife, was no longer able to perform the duties and functions of a housewife in maintaining their home. The defendant's only witness was a doctor who had not examined the plaintiff's injuries but who answered hypothetical questions as to her condition. The jury was instructed that the plaintiff had the burden of proving due care on her part, negligence on the part of the defendant, that the plaintiff was injured, and that the defendant's negligence was the proximate cause of the injury. Thus instructed, the jury returned a verdict for the plaintiff and assessed damages in the amount of $22,500. Defendant's post-trial motion for arrest of judgment, judgment notwithstanding the verdict, or, in the alternative, for a new trial was denied.

On appeal the defendant, Chicago Heights, maintains that (1) the trial court ruled incorrectly on certain objections to the evidence; (2) certain remarks of the trial court were prejudicial to defendant; (3) the jury was improperly instructed; and (4) the damages awarded were excessive. However, in this court defendant does not press the issues as to its negligence or the plaintiff's contributory negligence as raised in its post-trial motion.

It is defendant's contention that evidence with respect to a subsequent fall by Mrs. Christianson at her home two and a half years after the fall in question was irrelevant, immaterial and erroneously admitted into evidence over defendant's objection. Defendant stresses there was no connection shown between the two falls and nothing was shown to prove the proposition that the subsequent fall was caused by an alleged injury to the left knee sustained in the first fall. When the first mention of the second fall arose, the trial judge held a conference in chambers with both counsel wherein plaintiff's counsel indicated he would present medical testimony of the doctor who examined Mrs. Christianson between the time of the first fall and the second fall and who would testify as to a condition in the left knee that showed a weakness due to the injury sustained in the first fall. Since the jury heard mention of a second fall, the court proposed to both counsel that the court would instruct the jury to disregard the testimony concerning the second fall of April, 1965, at this point, and as other witnesses appeared, such second fall may or may not be established and connected to the first fall. The proceedings resumed and the court so instructed the jury.

Medical testimony of Dr. Bonick, relating to the subsequent fall, was that he examined plaintiff's left knee after the fall and it was his opinion that there was a strain or sprain of the ligaments around the left knee. Previously Dr. Petty had testified that his examination of Mrs. Christianson's left knee in November, 1963, revealed a permanent displacement of the left quadriceps tendon. He also testified this condition produces a laxness in the knees and an instability of the knee so that a person so affected would be more susceptible to falling or turning his knee. Finally, Mrs. Christianson testified to the fall she sustained on April 16, 1965.

[1-3] Whether the cause of the second fall was a result of the injury sustained in the fall upon the defendant's public sidewalk was a question of fact for the jury to resolve according to the evidence presented. There is evidence in the record to indicate the plaintiff fell, due to a sudden giving out of her left knee, which could be inferred as occurring as a residual effect of the injury sustained in the fall of August 3, 1962. The jury was at liberty to draw an inference from that evidence that the injury to the left knee sustained in the first fall was the cause of Mrs. Christianson's second fall on April 16, 1965, or the jury could totally disregard such evidence in assessing defendant's liability and the resulting damages. Such evidence adduced by plaintiff, being relevant and material to the existing condition of plaintiff's left knee and defendant's liability, was, therefore, properly admitted, and the jury's judgment as to its connection with the initial fall was final.

Defendant complains of the trial court's overruling of his objection to the hypothetical questions asked a physician by plaintiff's counsel, based upon the court's assistance to plaintiff's counsel in formulating such question. The familiar rule concerning hypothetical questions is that where an expert witness is asked a hypothetical question and the facts are not disputed, the question must contain all the material facts or the opinion is likely to mislead the jury. Such question also must not ignore material facts which affect the opinion given. Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482, 174 NE 577 (1931); Peterson v. Cochran & McCluer Co., 308 Ill. App. 348, 31 N.E.2d 825 (1941).

It is our view that the trial court did not assist plaintiff's counsel in amending his hypothetical question by supplying any missing material facts. Although the court admitted the hypothetical question posed by plaintiff's counsel was "not as thorough as it should be," the court's mention of the absence of the date of the accident, that the doctor examined the hypothetical person over a year later, and the court's permission to counsel to incorporate into the hypothetical question such facts, did not mislead the jury or prejudice the defendant's cause. The jurors were quite well aware of the date of the first fall, and were cognizant that the physical examination of the plaintiff by this doctor was in November 1963. While the original hypothetical question varied slightly from the actual facts, but not materially, in its amended form such question was proper and contained, we believe, the material facts upon which the answer was based.

The defendant argues that certain remarks of the trial court were improper and prejudicial to his cause. The trial court, in its opening statement to the jury, commented that the sidewalk upon which Mrs. Christianson fell was repaired the day after the fall. While evidence of repairs made to an instrumentality after an injury has occurred is inadmissible to show negligence of the party in control of such instrumentality when the injury occurred, Devine v. Johnson & Jennings Co., 189 Ill. App. 556 (1915); Day v. Barber-Coleman Co., 10 Ill. App.2d 494, 135 N.E.2d 231 (1956), in the instant case, we note that such comment by the trial judge was not intended to be introduced as evidence, and when brought to his attention at a conference in chambers by counsel, the trial judge made the following statement to the jury:

". . . I do want to make this statement. After a conference in chambers, it developed that in my opening statement about the facts of this case, I remembered saying that the sidewalk in question was repaired the next day. You are to absolutely disregard that, even as you would disregard any statements by attorneys, which is not evidence. There will be no evidence allowed in the ...


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