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Keil v. Mccormick

JUNE 13, 1972.

MELVIN KEIL, PLAINTIFF-APPELLANT,

v.

KATHLEEN MCCORMICK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. BERT E. RATHJE, Judge, presiding.

MR. JUSTICE JOHN S. PAGE DELIVERED THE OPINION OF THE COURT:

OPINION ON REHEARING

This is an appeal from an order of the Circuit Court of Du Page County denying plaintiff a new trial on the issue of damages only or, in the alternative, on all issues.

By his complaint plaintiff-appellant sought to recover for property damage to his automobile and for personal injuries to himself, including medical expenses for physiotherapy treatments two years after the accident. Defendant filed an answer generally denying all allegations of the complaint, but, upon the trial of the cause and at the close of her case, she filed an amended answer in which she admitted she was negligent in the operation of her automobile and her negligence was the proximate cause of damage to plaintiff's automobile to the extent of $253.50. Defendant denied "the plaintiff was injured as a proximate cause (sic) of defendant's negligence."

On August 6, 1966, in Lombard, Illinois, plaintiff, an insurance claims manager and part time law student, was at the wheel of his car which was stopped facing south on Elizabeth Street at a "four way stop" intersection with Maple Street. The defendant had stopped her car facing west on Maple Street at the intersection; saw the plaintiff's car, and made a wide right turn to go north on Elizabeth Street. She crossed the centerline of Elizabeth Street while watching a friend on a motorcycle in her rear view mirror and struck the plaintiff's stationary car at the driver's door on the left side at a speed of 5 to 10 miles an hour. She was proceeding in first gear in her standard transmission automobile and the impact was her first knowledge of the occurrence.

The evidence showed that plaintiff weighed approximately 250 pounds, was 6 feet 2 inches tall, age 35; that he was seated in a stationary car with his seat belt snugly fitted across his hips and thighs at the time of the collision; that his 8 year old son was seated beside him; his son called "Look out!"; that he turned his head to the left when the defendant's car was 4 or 5 feet away; that when the impact occurred it rocked plaintiff's car; that he was not sure if his head hit anything, but that something "popped" in his neck and it "cracked, like you crack your hands together loud"; that the defendant was a high school girl and her front seat passengers were girls aged 10 and 12. Defendant's passengers did not testify or appear at the trial.

Plaintiff presented bills for hospital care, physiotherapy, x-rays, medication and physicians' services totaling $3,480.88.

The jury returned a verdict for plaintiff in the sum of $253.50.

On appeal, appellant first claims prejudicial error in defendant's counsel's opening statement to the jury and subsequent testimony by the defendant on that point.

In his opening statement, defendant's counsel informed the jury that the evidence would show there had been no injury to the defendant, to the two occupants of her car, nor to the plaintiff's son, an occupant of his car.

Plaintiff's counsel objected to this statement and a conference was held in chambers where the trial judge directed both counsel to present authorities.

The trial court ruled that if testimony of the bare fact of injury to others is admissible, then testimony of the bare fact of non-injury to other occupants of the colliding cars is also admissible and directed counsel not to go into anything further than whether or not they were injured.

Defendant, on direct examination by her counsel and in answer to specific questions, testified that neither she nor her passengers were "injured at all in any fashion."

Neither party then, nor on this appeal, presented any authority bearing directly on the question of the admissibility of evidence that other occupants of colliding vehicles were not injured ...


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