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Olson v. Fleetwood

NOVEMBER 12, 1969.

ANNA OLSON, PLAINTIFF-APPELLANT,

v.

TERRY FLEETWOOD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of DeKalb County; the Hon. CASSIUS POUST, Judge, presiding. Judgment affirmed. MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 29, 1970.

The plaintiff appeals from an order of the trial court that denied her post-trial motion for a new trial as to damages only.

On December 24, 1963, the plaintiff, then a 54-year-old spinster, stopped her automobile at a stop sign located at the intersection of North Avenue and California Street in Sycamore, Illinois. It was a clear, bright day but the lightly traveled intersection was coated with ice. Moments later, her automobile was struck in the rear by an automobile driven by the defendant. The plaintiff's car was not damaged.

The plaintiff was jolted forward by the impact and heard her neck "crack." She felt an immediate pain in her neck and was driven to her physician, Dr. John Eggers, by a passerby. Dr. Eggers examined Miss Olson and sent her to the hospital for X rays. The pain increased and on December 26 she entered Sycamore Hospital at Dr. Eggers' direction, where she remained 39 days for traction and therapy.

After her release from the hospital on February 3, 1964, the plaintiff did not return to her own home but lived with her uncle until October of 1964. During this period she was driven to the hospital by a neighbor three times a week for further physiotherapy and traction. She wore a cervical collar until September of 1964.

Although the pain in her neck had lessened prior to her discharge from the hospital, Miss Olson began to experience pain in her lower back and legs during her stay with her uncle. After her return to her own home she was unable to do any heavy work and has continually suffered pain in her neck, back and legs.

Bills in the total amount of $2,278.90 for her hospitalization, a back brace, drugs and services rendered by Dr. Eggers were admitted into evidence. At the conclusion of the trial, the jury returned a verdict that found for the plaintiff and against the defendant and assessed her damages in the sum of $2,500. Judgment was entered on the verdict. The plaintiff here maintains that the verdict was grossly inadequate and against the manifest weight of the evidence in that it failed to fairly compensate her for all the proven elements of damage.

The evidence disclosed that the plaintiff had lived with her parents on a small farm outside of Sycamore for many years prior to the accident. Although she never farmed, she did maintain the yard, mow the lawns and do the heavier housework. Her mother died in 1949 and her father in 1963.

A number of neighbors and acquaintances, including a nurse, testified that they knew Miss Olson both before and after the accident and all agreed that she had been in apparent good health and vigor prior to that time but fatigued and in obvious pain thereafter. Dr. Eggers testified that he was the plaintiff's physician since 1939. In the 1940's she had low back pain and he performed a uterine suspension and fitted her with a sacroiliac belt for at least two years. In 1954, he prescribed vitamins since she was fatigued and tired at that time. For a period of four or five years before the accident, Dr. Eggers treated Miss Olson for hypertension and a variety of feminine complaints. She visited him approximately twice a month and took, at his advice, a number of drugs for tension and stomach discomfort.

Dr. Eggers further testified that Miss Olson visited him on December 24th, 1963, and stated that she had been hit by an auto and complained of pain in her neck and down her thoracic spine. He sent her to the hospital for X rays and prescribed something for the pain. On December 26, she was admitted to Sycamore Hospital since the pain had increased. Dr. Eggers made a complete examination and found she had a muscle spasm in her neck and contusions on her chest. He recommended bed rest, intermittent heat traction and drugs for her pain and tension. His diagnosis at the time she was discharged from the hospital was an acute sprain, or damage to the ligaments, of the cervical spine. It was his opinion that the sprain would cause pain and that there was a causal relationship between the sprain and the history of the accident.

In March, 1964, Dr. Eggers had X rays taken of the plaintiff's lower back since she complained of pain in that area and in her legs. The X rays disclosed an arthritic condition in the lumbar spine that the doctor believed could have been caused by an aggravation of an old condition at the time of the accident.

Dr. Eggers concluded that although Miss Olson's cervical spine was "good," she would continue to suffer pain in her neck and lower back. It was his further opinion that this condition would be permanent since the damaged ligaments were healed by scar tissue that did not have the natural flexion of normal tissue and would resist movement or stress.

In his brief, the defendant asserts that the plaintiff had the affirmative burden to show that the verdict of the jury was not a compromise of liability against damages in order to be entitled to a new trial on the sole issue of damages. The plaintiff has not included the testimony of the defendant in her abstract and it was omitted from the report of proceedings at her request. In support of this assertion, the defendant relies primarily on the case of King v. City of Chicago, 53 Ill. App.2d 484, 202 N.E.2d 839, wherein the plaintiff appealed for a new trial on damages only and did not include any evidence on the issue of liability in the record for review. The trial court had denied a post-trial motion for a new trial on the question of ...


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