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Feldman v. Fitzpatrick

APRIL 16, 1973.

LEON FELDMAN, PLAINTIFF-APPELLANT,

v.

IRENE FITZPATRICK, DEFENDANT-APPELLEE.



APPEAL from the Circut Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

An automobile in which plaintiff was a passenger, driven by his 16-year-old son, Richard, was struck in the rear end by an automobile owned and operated by defendant, Irene Fitzpatrick.

Plaintiff alleged that as a result of the occurrence, he sustained "severe and permanent injuries" and damages in the amount of $125,000.

At the conclusion of all the evidence, the court directed a verdict in favor of plaintiff on the issues of contributory negligence and defendant's negligence. The case was submitted to the jury on the issues of causality and damages. The jury returned a verdict in favor of defendant and judgment was entered thereon. Plaintiff appeals.

Plaintiff testified that on May 15, 1965 at 5:00 P.M. he and his son, Richard, were involved in an automobile accident with the car of defendant, Irene Fitzpatrick. He testified that at the time of the occurrence he was riding as a passenger in the front seat and his son, Richard, was driving the vehicle. The Feldman automobile, northbound on Ridge Avenue in Chicago was stopped in obedience to a red traffic signal at Lunt Avenue. Plaintiff testified that defendant's car, which also was proceeding northbound on Ridge Avenue in the same lane as the Feldman car, struck the rear end of the Feldman car. Plaintiff testified that the impact of the vehicles caused him to strike his head on the windshield, as a result of which he became unconscious for half a minute.

Plaintiff testified that the police department was notified and that a police officer arrived at the scene and investigated the accident. After the investigation plaintiff's son drove him home. Plaintiff stated that after the accident he felt "bad" and his "head was hurting."

Plaintiff testified that later that evening his brother and sister-in-law came over to his house and took him to see Dr. Sidney Alpert. Dr. Alpert recommended that plaintiff enter Mt. Sinai Hospital the next day where plaintiff was hospitalized from May 16, 1965 to May 28, 1965. Plaintiff testified that after his initial hospitalization, he was hospitalized on different other occasions and lost a substantial amount of time from work.

On cross-examination, plaintiff testified that after he struck his head on the windshield, he had a bruise in the right forehead area. He believed the bruise was discolored and that the bump or mark would be visible to persons observing him after the accident.

Plaintiff's son testified that as a result of the impact of the vehicles, he was "thrown back and forwards against the steering wheel" and that subsequent to the accident he was treated by Dr. Alpert.

On cross-examination Richard Feldman testified that he had been a plaintiff in the lawsuit and had taken a non-suit approximately ten or fifteen minutes before he was called to testify as a witness in his father's behalf. He further testified that after the accident, he did not see any marks on his father and that his father did not respond to the investigating police officer's inquiry concerning whether anyone was injured. Richard Feldman testified that the Feldman car was damaged in the rear end but was unable to specify the exact area which was allegedly damaged and stated that the car was not repaired after the accident.

Dr. Merrell R. Reiss, a physician and neurologist associated with Mt. Sinai Hospital, called by plaintiff, testified that he examined an E.E.G. (electroencephalogram) taken of plaintiff on May 19, 1965. Dr. Reiss testified that his interpretation at that time was an "abnormal E.E.G." and that this might indicate an irritative response to an injury. Dr. Reiss further testified that he interpreted a subsequent E.E.G. of plaintiff taken in August 1965 and that at that time plaintiff's E.E.G. was normal. In response to a hypothetical question propounded by plaintiff's counsel, Dr. Reiss stated that he was of the opinion that the abnormality he discovered at the time of the first E.E.G. was "probably secondary to or caused by the injury."

On cross-examination of Dr. Reiss, the following occurred:

"Defense Counsel: Doctor, as I understand it, your active professional services in relation to Mr. Feldman was reading these two electroencephalograms?

The Witness: That is correct.

Defense Counsel: You performed no neurological consultation ...


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