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Messina v. Zody

JULY 12, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. RICHARD A. HAREWOOD, Judge, presiding.


Plaintiff, Maria Messina, brought this action in the circuit court of Cook County against defendant, Bert Zody, a Chicago Transit Authority bus driver, for personal injuries arising when she fell while alighting from a C.T.A. bus. After a trial without a jury, the court entered judgment for plaintiff and assessed damages at $4,500. Defendant appeals from the judgment. Prior to trial, the C.T.A. was dismissed as a defendant because of plaintiff's failure to serve a required notice. The propriety of that dismissal order is not involved in this appeal.

On September 11, 1967, plaintiff fell as she alighted from the front doorway of a bus at the intersection of Grand and Austin Avenues in the City of Chicago. She was taken from the scene by the police to Saint Anne's Hospital.

At trial plaintiff testified through an interpreter that she had one foot on the bottom step of the bus doorway and was about to place her other foot on the ground when the bus pulled away, throwing her to the ground. Her testimony as to the occurrence was supported by a disinterested witness, James Rubino. Rubino owned a restaurant at the intersection and was looking out the window at the time. Rubino also testified that when plaintiff was thrown to the ground she landed on her face and rolled over. It was Rubino who wrote down the bus number and called the police.

Defendant testified that he operated a bus on Grand Avenue on the day in question, but that he was unaware of any accident having taken place. His superior asked him about the incident on the following day.

Plaintiff testified that she sustained injuries to her head, side, back, ribs and stomach. She came under the care of Doctor Devonch at the hospital. She had pain in various parts of her body, particularly in the left ribs, chest, back and stomach. She was in the hospital 18 days, returned to the hospital on November 26, 1967, and remained there until December 21. She returned to the hospital because of a deep pain in her stomach and because of her inability to have a bowel movement. She also testified that during her second hospitalization she came under the care of Doctor Giganti. He prescribed the use of a corset which she wore for four years. She still had pain in her stomach at the time of trial. Prior to this accident, she did not have stomach pain. She had an appendectomy in 1964. When she arrived from Italy in 1961, she worked in the kitchen at Columbus Hospital. Plaintiff did not remember whether she had an accident at the Columbus Hospital in October, 1962. Plaintiff further testified that she worked at the Palmer House from 1964 until the present accident.

Gary Pruitt, personnel director for the Palmer House, testified for plaintiff. Plaintiff was employed at the Palmer House at the time of the accident. After obtaining a leave of absence, she never returned to work. The work records indicated that she had requested a month's leave of absence for illness two years prior to the instant accident.

Doctor James J. Giganti testified for the plaintiff that she came under his care and treatment in the early part of December, 1967. The plaintiff complained of severe abdominal pain, constipation and occasional nausea. She had also been unable to urinate. Doctor Giganti diagnosed plaintiff's condition as chronic constipation of neurogenic origin and traumatic myositis, an inflammation of the front part of the abdominal wall. In the doctor's opinion, there was a casual connection between the instant accident and plaintiff's subsequent condition of ill being. He also believed the condition could be permanent. He testified that his diagnosis was based mainly upon plaintiff's subjective complaints. The doctor characterized plaintiff as emotional and anxious. He noted that plaintiff's inability to urinate cleared up, as did the various sprains and bruises to the other parts of her body.

Doctor William Buckingham, an internist, testified as an expert witness on behalf of defendant. He had not examined plaintiff, but in response to a hypothetical question expressed the opinion that there was no causal connection between the accident and plaintiff's condition of ill being. Doctor Buckingham considered the diagnosed conditions as solely nervous complaints unrelated to trauma.

In assessing plaintiff's damages at $4,500, the trial judge stated that $757 was for the amount of the first hospital bill and that $147 was for part of her medical bill. The judge also recognized that plaintiff was employed, but stated that he had not been informed of her earnings. The balance of the judgment was for pain and suffering.

On appeal defendant contends that the damages awarded to plaintiff were excessive; that the finding was against the manifest weight of evidence because plaintiff failed to show sufficient causation between her physical condition and the accident; and that the trial court committed reversible error in excluding certain evidence offered by defendant.

We consider initially defendant's argument that the damages awarded to plaintiff were excessive.

• 1 It is well settled that the amount of a judgment rests within the discretion of the trier of fact, and it is the trier of fact, not a reviewing court, which determines the amount which will compensate a plaintiff for injuries sustained. (Parnham v. Carl W. Linder Co. (1962), 36 Ill. App.2d 224, 183 N.E.2d 744.) In Barango v. E.L. Hedstrom Coal Co. (1956), 12 Ill. App.2d 118, 138 N.E.2d 829, this court stated that the issue in such cases is whether or not the total amount of the damages fails within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. Before an award of damages will be disturbed on review the size of the damages must clearly indicate that it was the result of prejudice or passion. Ford v. Friel (1947), 330 Ill. App. 136, 70 N.E.2d 626.

• 2 Nothing in the present record reveals prejudice or passion on the part of the trial judge. In assessing the damages, he analyzed the evidence and plaintiff's actual out-of-pocket expenses. The judge was careful to confine plaintiff to a recovery for those hospital and medical expenses which he found to be related to this accident. He limited recovery for hospital expenses to plaintiff's initial 18 day confinement at Saint Anne's Hospital, and awarded her compensation for only part of her medical expenses. Although observing that he had not been apprised of the amount of plaintiff's lost wages, the judge recognized that at the time of the accident she was employed at the Palmer House and had in fact suffered a loss of wages. The trial ...

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