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Johnson v. Chicago Transit Auth.

MARCH 22, 1973.

ESTELLE JOHNSON, PLAINTIFF-APPELLEE,

v.

THE CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. B. FAIN TUCKER, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Estelle Johnson, brought an action against the Chicago Transit Authority and its bus driver, Marinus Cooper, for personal injuries she sustained while riding as a passenger on a C.T.A. bus driven by the individual defendant. The jury returned a verdict of $32,385 for the plaintiff, and judgment was entered thereon. The trial court denied the defendants' post-trial motion, and this appeal followed.

The defendants raise two issues. They contend (1) that plaintiff's attorney made improper and prejudicial remarks during his closing argument to the jury, and (2) that the plaintiff misused the rules of discovery and thereby prejudiced the defendants.

We affirm.

The defendants urge us to consider their first contention in light of their assertion that the issue of liability was close in this case and that, therefore, the record should be error-free in order to sustain the judgment. After carefully reviewing the record, we find that we do not agree with the defendants' position.

The C.T.A. bus driver, Marinus Cooper, testified that he was driving his bus southbound on Western Avenue in Chicago in the lane closest to the curb on the morning of May 12, 1964. When he was about 8300 South on Western Avenue the bus scraped against some tree branches which were extending over the street, and two windows of the bus were broken. As a result of this accident, Estelle Johnson, a passanger, claimed that she sustained back and neck injuries when the bus jolted while she was sitting in her seat. The driver did not stop the bus until he got to the next scheduled stop.

Cooper testified that he saw the tree about 100 to 200 feet away before he scraped against it and that at the time of the accident he was going between 20 and 30 miles per hour. He explained that he was unable to avoid hitting the branches and that due to another bus on his left, he could not move his bus out of the curb lane. He also testified that on two earlier runs along Western Avenue that morning he had observed a tree hanging over a neighboring fence at the spot where the accident subsequently took place. That having been substantially the evidence relating to the issue of liability, the jury decided the issue in favor of the plaintiff.

The defendants complain of six instances of improper and prejudicial remarks that the plaintiff's attorney made during his closing argument to the jury. All the remarks except one pertained to damages. We shall consider each of the six instances separately.

• 1 In the first instance the defendants argue that there was an improper formalization of pain and suffering damages which the Illinois Supreme Court had condemned in Caley v. Manicke (1962), 24 Ill.2d 390, 182 N.E.2d 206. In his argument to the jury, plaintiff's attorney said: "Ladies and gentlemen, I don't know what the element of pain and suffering is worth. That's absolutely for you to determine. $30,000 a year? $20,000 a year? $16,000? I don't know. There are 31 years involved. If you figure that element is worth $650 it comes to $20,000." The trial court overruled defendants' objection to the above arguments.

The court in Caley disapproved of a "per diem" argument in which a monetary value for pain and suffering is given to a small unit of time such as a minute or an hour and then an aggregate is arrived at by way of multiplication. The court said that this method produced an "illusion of certainty" to the jury. We believe the argument of counsel in the instant case did not go as far as the argument in Caley.

In two decisions, Fortner v. McDermott (1971), 1 Ill. App.3d 358, 272 N.E.2d 503, and Warp v. Whitmore (1970), 123 Ill. App.2d 157, 260 N.E.2d 45, the court found no reversible error because of an argument of counsel that suggested a monetary value for pain and suffering per year for the number of years of the life expectancy of the plaintiff. Counsel in both cases were careful to avoid giving any illusion of certainty and admonished the jury that their figures were merely suggestions. In the instant case, in addition to counsel's similar admonitions, his argument concerning damages for pain and suffering was merely a part of his entire argument for damages, and we do not think that counsel gave undue emphasis to his remarks.

In the second instance, defendants complain of two statements which they argue were not based on the evidence and were outside the bounds of proper argument. In referring to the expert medical testimony that was presented during trial, plaintiff's counsel remarked: "They have all testified that the only thing that can be done is surgery, if it gets to the point where it is needed." The court overruled the defendants' objection. Defendants maintain that none of the doctors so testified.

• 2, 3 Attorneys have broad latitude during closing argument to draw reasonable inferences and conclusions from the evidence. (Maddox v. Smith (1966), 67 Ill. App.2d 374, 214 N.E.2d 5.) In the instant case plaintiff's counsel did not exceed the bounds of proper argument. The three expert medical witnesses who testified for the plaintiff indicated that she had a serious back injury that involved a disc. According to the doctors' opinions, plaintiff was suffering from the possibility of a slipped disc (Dr. Foltz), a herniated disc (Dr. Hirshtick), and a flattened disc pinching a nerve (Dr. Zeitlin). Only two of the expert witnesses, Dr. Hirshtick and Dr. Miller, defendants' expert, referred to the need for surgery when a ruptured disc is causing considerable discomfort to a patient due to a complicating nerve injury.

The remark complained of was not so improper as to constitute reversible error. Given the conditional nature of the statement, it is hard to conceive of resulting prejudice. The jury knew that six years had passed from the time of the accident until trial, and plaintiff had not undergone surgery. In fact, ...


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