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O'brien v. Stefaniak

OCTOBER 13, 1970.

ALICE O'BRIEN, PLAINTIFF-APPELLANT,

v.

CASEY J. STEFANIAK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD R. FINNEGAN, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a personal injury action in which the jury returned a verdict in favor of the defendant, and judgment was entered thereon. On appeal, plaintiff asserts prejudicial trial errors in that (1) the court erred in refusing to permit the testimony of a witness who was not named in pretrial interrogatories; and (2) the court erred in receiving into evidence a survey of the premises involved.

On February 22, 1962, between 8:00 and 8:30 p.m., plaintiff, Mrs. Alice O'Brien, fell and injured her ankle in front of the residence and office of the defendant, Casey J. Stefaniak, who conducted an income tax service from his home located on the west side of the street at 766 State Line Road, Calumet City. His wife Clara and son Robert helped in the business. The bungalow-type home faced east and was built back three or four feet from the public sidewalk. Concrete stairs led from the front door to the private walk that led to the public walk. The stairs and private walk were on the north half of the building. The public walk, which ran north and south parallel to State Line Road, was separated from that street by a parkway about two feet in width.

Plaintiff was employed during the day from 2:00 to 8:00 p.m. and had driven to the premises of defendant to make an appointment to have defendant prepare her income tax return. She arrived at defendant's premises fifteen or twenty minutes after 8:00 p.m. and parked her car on the east side of the street, facing north and a little south of defendant's entranceway. She left the engine running and her purse in the car.

Plaintiff, the only eyewitness, testified she was wearing rubber-soled nurse's oxfords and crossed the street into the city sidewalk, and as she proceeded to the premises she stepped into a hole on the right side of the sidewalk leading up to the building. She heard her foot make a popping noise, felt a terrible pain, stumbled and landed in a sitting position on the city sidewalk. Her screams brought three people out of the Stefaniak building, Clara Stefaniak, Robert Stefaniak, and a customer, Norman Wondraski. They covered her with a blanket and tried to get her on her feet or get her to lie down, but she could not pry her foot loose. After some time, she was taken to a hospital in an ambulance and given emergency treatment. Her injuries were severe and required extensive hospitalization and therapy treatment. She had a permanent partial loss of foot movements, used a cane, and had constant pain in her right ankle.

Evidence depositions of Dr. Robert G. Husted and Dr. E.W. Johnson were introduced in evidence on behalf of plaintiff. Dr. Husted stated that the plaintiff was a patient of his for several years before the occurrence, and that he treated her in the emergency room of St. Margaret's Hospital on February 22, 1962. He testified that plaintiff stated to a nurse, who wrote down what she said in a hospital record, that she slipped and fell on ice. Dr. Johnson of Mayo Clinic, Rochester, Minnesota, testified that she told him she fell on icy irregular steps as she was going to get her income tax figured.

Defendant's witnesses included the three persons who came to the aid of plaintiff lying on the sidewalk. Mrs. Clara Stefaniak, wife of the defendant, testified that on February 22, 1962, around 8:30 p.m., she was in her husband's office with her son, Robert, and a customer, Mr. Norman Wondraski. Upon hearing a woman's screams from outside the house, the three ran outside and found the plaintiff in a sitting position on the public sidewalk nearest the parkway. She was facing the house, south of the Stefaniak's sidewalk, about three feet north of the driveway on the southern edge of the Stefaniak property. Mrs. Stefaniak also testified that there were ten inches of snow on the parkway, but the sidewalks were clear.

Robert Stefaniak, son of defendant, testified that there were six to eight inches of snow and ice on the parkway, and that he found plaintiff in a lying position about two feet north of the driveway on the southern edge of the property, which was south of the Stefaniak's sidewalk. The plaintiff was lying on the ground facing east (away from the house) with approximately one-half of her body on the public sidewalk and her legs and feet on the parkway. He further testified that upon asking her what had happened, the plaintiff said "she was running across the street to get some tax service done. She attempted to jump over this little patch of ice and of course caught her foot on the ice, thereby slipping and hurting herself."

Mr. Norman Wondraski testified that he reached the plaintiff last and stated that she wasn't lying down but was on the ground, halfway on the parkway, facing toward the house. She was positioned south of the Stefaniak's sidewalk. He stated he asked her what had happened and that she said she fell, indicating "out toward the street." She asked him to run across the street, turn her car off and bring her her purse, which he did. He said that the car was not directly across the street, but south of the Stefaniak's home.

At the close of plaintiff's evidence, and again when both sides rested, the court denied permission to plaintiff to call as a witness for plaintiff, Sergeant M. Jaranowski, an officer of the Calumet City police department, who had attended the scene after the occurrence and whose name had not been included by plaintiff in answering defendant's pretrial twice-submitted interrogatories seeking the identity of plaintiff's witnesses who had knowledge of the facts involved in the lawsuit.

After the second refusal of permission to call Officer Jaranowski, plaintiff made an offer of proof which stated that if Officer Jaranowski were permitted to testify, he would state that on February 22, 1962, shortly after 8:30 p.m., he attended the scene of an accident at 766 State Line Road, Calumet City. Upon arrival, he found Mrs. Alice O'Brien lying in front of 766 State Line Road. At that time she was in close proximity to the sidewalk belonging to the Stefaniak property, her head to the southeast and her feet to the northwest.

Initially considered is plaintiff's contention that the court erred in refusing to permit Officer Jaranowski to testify. The original interrogatories filed on January 29, 1963, were as follows:

"a) What are the names and addresses of all witnesses in the possession of the plaintiff who were occurrence witnesses to the accident described in plaintiff's complaint?

"b) What are the names and addresses of all persons in the possession of the plaintiff having knowledge of other facts concerning the ...


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