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Soberalski v. Chicago Rock Island & Pac. R.r.

JUNE 16, 1975.

ELEANOR SOBERALSKI ET AL., PLAINTIFFS-APPELLEES,

v.

CHICAGO ROCK ISLAND AND PACIFIC RAILROAD COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding.

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

This is an action to recover damages for personal injuries as a result of a train accident. Liability was admitted, and a jury trial was held on the issue of damages only. The jury returned verdicts against the defendant and in favor of the plaintiff Eleanor Soberalski in the amount of $75,000, and in favor of the plaintiff Clara Drag in the amount of $30,000. Judgments upon these verdicts were entered in the circuit court of Cook County, from which the defendant has appealed. The defendant's sole contention is that the amount of each verdict was excessive and against the manifest weight of the evidence.

The actions of Eleanor Soberalski and Clara Drag were tried together. We will consider the evidence relative to Eleanor Soberalski's injuries first. Evidence was presented, in Eleanor Soberalski's case, concerning a number of physical injuries which were alleged to have been the result of the train accident. These included injuries to her neck, lower back, right arm and eyes in addition to a temporary loss of weight and severe anxiety tension. In our review of the evidence, we are going to focus on the neck injuries because these were the most serious.

Mrs. Soberalski, accompanied by her two daughters, was riding aboard one of the defendant's trains between LaSalle, Illinois, and Chicago, Illinois, on May 28, 1965, when the accident occurred. Mrs. Soberalski testified that a boxcar came through the side of the railroad car and thereafter she remembered little else until arriving at St. Mary's Hospital several days later. Her daughter, Joanne Soberalski, testified that her mother was sitting in an aisle seat just before the accident and her mother was found on the floor after the accident. Some men then carried Eleanor Soberalski off the train, and the plaintiff recalled being in an ambulance before arriving at the hospital. A train conductor's report filled out at the scene of the accident stated that Eleanor Soberalski had complained of "head pains, bump on head, and back hurts."

Immediately following the accident, Mrs. Soberalski was taken to Reyburn Hospital, apparently in Ottawa, Illinois, where she was attended to by Dr. Herman Sutton. Dr. Sutton, one of the witnesses called by the plaintiff, testified that he first saw Mrs. Soberalski on the evening of May 28, 1965. Mrs. Soberalski told him that she had struck the back of her head in the accident and had a headache, dizziness and pain in the pelvic area. Dr. Sutton took several x-rays of various areas of the plaintiff's body including the skull. Dr. Sutton found no evidence of any injuries to the neck at this time, but he did find a bruise to the base of the skull in the occipital area. Dr. Sutton's diagnosis at that time was that Mrs. Soberalski had a cerebral concussion to the head and a sprain of the back.

Mrs. Soberalski was released from Reyburn Hospital and transferred to St. Mary's Hospital in La Salle, Illinois on May 30, 1965, 2 days after the accident. Dr. Walter J. Utz, Mrs. Soberalski's family doctor, attended her at St. Mary's. Dr. Utz testified for the plaintiff. On June 6, 1965, Dr. Utz testified, he took a history from Mrs. Soberalski. The plaintiff told Dr. Utz that she had been struck on the back of the neck with a suitcase during the train accident. She complained to him of severe pain in her neck over her cervical spine, pain in her right arm and elbow, headaches, nausea, loss of appetite, dizziness, extreme tension, and pain when she tried to move her head front to back. On June 6, 1965, he found that there was tenderness and swelling at the base of the cervical spine, which is located in the neck. He did not feel a muscle spasm in the neck, however, and x-rays he took of the neck on June 6, 1965, showed nothing abnormal.

Mrs. Soberalski saw Dr. Utz a number of times from June 6, 1965, through September 13, 1971. Dr. Utz testified that the plaintiff continually complained of pain in her neck and the inability to make the normal range of front and back movements of her head. He took x-rays of the plaintiff's neck on various occasions but did not notice any abnormalities in her cervical spine.

Dr. John L. Kieffer, a chiropractor, was called as a witness on behalf of the plaintiff, Eleanor Soberalski. Dr. Kieffer had seen Mrs. Soberalski both before and after her train accident. On January 16, 1965, some 4 1/2 months prior to the train accident, Dr. Kieffer had taken x-rays of Mrs. Soberalski during a visit in which the plaintiff complained of a chest cold and sinus drainage. X-rays of her neck revealed some arthritis in the cervical spine which Dr. Kieffer characterized as "Minimal and acceptable and normal."

The next time Mrs. Soberalski saw Dr. Kieffer was on February 11, 1966, 8 1/2 months after the train accident. Dr. Kieffer testified that the plaintiff told him that she was struck in the head with a suitcase during the accident and that she had pain in the posterior area of her cervical spine which is in the neck. Dr. Kieffer noted that her head was tilted rather severely to the right side. He took x-rays on this date, which he testified revealed thinning between the disc spaces in the cervical vertebrae. This condition was quite advanced and not normal, and due to its localized nature, it was his opinion that it was related to trauma or injury. He testified that the January 16, 1965, and February 11, 1966, x-rays indicated that "an injury of some nature" had taken place in the time period between those two x-rays. A subsequent x-ray taken December 5, 1966, showed that this condition was leading toward an osteoarthritic condition of the neck. Dr. Kieffer then testified that, based on a reasonable degree of medical chiropractic certainty, it was his opinion that the condition of Eleanor Soberalski's cervical spine revealed by the February 11, 1966 x-rays, was related to the train accident of May 28, 1965.

Eleanor Soberalski's next witness was Dr. Harry E. Barnett, an orthopedic surgeon. Dr. Barnett testified that he first saw the plaintiff on September 11, 1967. Mrs. Soberalski complained to him about pain and stiffness in her neck. Dr. Barnett noted that the movement of Mrs. Soberalski's neck and cervical spine was limited by as much as 75 percent. Dr. Barnett hospitalized the plaintiff for several weeks and diagnosed the plaintiff's difficulties at the time to include an acute strain of the cervical region of the spine. X-rays taken in September of 1967 revealed degenerative changes of the vertebrae bodies and disc spaces in the cervical spine.

Eleanor Soberalski continued to see Dr. Barnett for treatment until November 4, 1971. Dr. Barnett gave his opinion, based upon a reasonable degree of medical certainty, that Eleanor Soberalski's injuries in the cervical spine area were permanent, and that her disability would make her unable to carry on any gainful type of work. He based his opinion upon the x-rays of her neck, the plaintiff's complaints, and his physical findings. He also stated that based on a reasonable degree of medical certainty, it was his opinion that there was a direct causal connection between the plaintiff's condition and the train accident of May 28, 1965.

Eleanor Soberalski also called another orthopedic surgeon, Dr. Leonard Smith, as her witness. Dr. Smith testified that he saw Mrs. Soberalski at various times between January 1970 and May 1972. He first saw the plaintiff on January 30, 1970. At this time he took a history from her which included pain and stiffness in the neck, headaches, dizziness, and mention of the train accident of May 28, 1965. On that date, Dr. Smith had x-rays taken which he testified revealed arthritic changes and a straightening of the plaintiff's cervical spine which was abnormal. These changes, Dr. Smith testified, were a competent cause of the pain the plaintiff complained of and also would explain the plaintiff's inability to bend her neck within normal ranges.

In Dr. Smith's diagnosis, the plaintiff had a severe sprain in her neck which he defined as the tearing of muscles and ligaments in the area of the cervical spine. This sprain had caused some irritation to the occipital nerves resulting in occipital neuritis which is a competent cause of headaches, dizziness and the inability to properly move one's neck. Based on a reasonable degree of medical certainty, it was the opinion of Dr. Smith that the plaintiff's neck injury was permanent, and the plaintiff would be "severely restricted, even totally disabled in some cases" from performing normal household chores as washing and scrubbing floors and working in her prior occupation as a seamstress. Any sitting for long periods of time while using her arms and hands would aggravate her neck condition. When asked whether, based on a reasonable degree of medical certainty, there was a causal connection between the train accident of May 28, 1965, and Eleanor Soberalski's present condition, Dr. Smith testified that the history given him, including the train accident, "would be consistent with the injury that she has."

Clifford Spiller, Eleanor Soberalski's former employer, was called as a witness by the plaintiff. He testified that the plaintiff had worked for him as a seamstress prior to the train accident. She had worked regularly for him from January 7, 1963, until May of 1965. She had earned $1,549.11 in the 5 months prior to the ...


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