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House v. Stocker

DECEMBER 31, 1975.




APPEAL from the Circuit Court of Will County; the Hon. ROBERT E. HIGGINS, Judge, presiding.


On January 28, 1968, plaintiff was doing his family laundry as a customer at the laundromat at Cass Street in Joliet. The westerly wall of the laundromat room was made largely of glass and overlooked an adjacent outside parking lot. While waiting for his laundry to finish, plaintiff sat in a chair inside the laundromat along the westerly glass wall facing eastward into the room. As defendant, Sylvia Stocker, was driving her automobile into the parking lot, her foot slipped from the brake to the accelerator causing the vehicle to drive over a parking bumper and through the glass window, striking and injuring plaintiff. At the close of all the evidence, the court directed a verdict in favor of all the defendants except Sylvia Stocker; the court then directed a verdict for plaintiff against defendant Sylvia Stocker and thereafter entered judgment on the jury's assessment of damages at $157,500. Defendant Stocker's post-trial motion was denied. On appeal, defendant Stocker claims that the court erred in directing a verdict and that the damages allowed are, in any event, excessive.

• 1-3 There is no dispute about how the accident happened. Defendant argues, however, that her foot "slipping off the brake" and onto the accelerator should not be characterized as negligence per se, and that the court erred in withdrawing from the jury the issue of whether such conduct was negligence. When plaintiff proved that defendant drove her automobile through the window of the laundromat and struck him, the duty shifted to defendant to show that it was there for some reason other than her own negligence. (Sughero v. Jewel Tea Co., 37 Ill.2d 240, 226 N.E.2d 28 (1967); Murphy v. Kumler, 344 Ill. App. 287, 100 N.E.2d 660 (3d Dist. 1951).) Where an injury is shown to have been produced by an instrumentality which in the ordinary course of events would cause no such harm if those who have management of it used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. The presumption is not proof and will yield to contrary proof, but we agree that defendant's explanation here that it occurred because she did not have control and because her foot slipped, does not overcome the presumption, and that the circuit court, under the Pedrick rule (37 Ill.2d 494, 229 N.E.2d 504 (1967)), correctly directed a verdict for plaintiff.

At the time of the accident, plaintiff was 37 years of age, married and the father of several children. He had completed about two-thirds of his college work by May 1953 when he was called for military service. He had been prominent in college as an athlete. After completing military service, he attended vocational high school to learn bricklaying, and thereafter became and has been a professional bricklayer in the Joliet area since 1963. Before the accident he was in good health, and allowing for weather conditions, worked for union wages an average of 9 months of every year getting 2 to 4 hours per week overtime. At the time of trial his life expectancy was 25.9 years.

Plaintiff testified that while he was sitting in the chair at the laundromat on the morning of the accident, everything suddenly "went out." When he came to his senses, he found himself stretched out on the floor under a clutter of shattered glass. He had no memory of seeing defendant's automobile but did remember that he tried to get up from the floor but couldn't, there being no strength in his legs. He felt sharp pains in his lower back, in both elbows and in his left knee. He was taken to Silver Cross Hospital immediately and after about an hour there was taken to his home where he was confined to bed for two weeks, being virtually unable, said he, to move any part of his body. The next day, however, he did see Dr. Wilson, the family physician and was referred by him to Dr. Rentschler, an orthopedist who has treated him ever since. The elbow pain left shortly, but about 6 to 8 weeks after the accident, plaintiff's right knee began to cause discomfort.

On April 10, 1968, plaintiff returned to work as a bricklayer on Dr. Rentschler's orders and continued until October 4, 1971. During that time he was not able to do more than half his usual work, according to his testimony. He terminated further efforts at this work on October 4 because it was too strenuous and aggravated his pain in the back and right knee. These pains became sharp and intense and caused vomiting. The work involved considerable lifting and bending in the handling of bricks weighing 3 1/2 to 8 pounds and concrete blocks of 90 pounds. After terminating further efforts at bricklaying, he drove a cab for about a month but found continuous driving 8 or 9 hours a day a cause of discomfort to his knee, and on the advice of Dr. Rentschler, that he should develop another skill, he returned to Lewis College in 1972 as a full time student for a degree in sociology. He was, therefore, not employed during 1972 and 1973 and at the time of trial in March 1973 contemplated receiving a bachelor's degree the following May, and to pursue employment as a social worker. On an occasion in January 1973 when he was trying to change a tire, and had been bending over for a while, he found it difficult to straighten up, and continuously from then until trial time, had found the use of a cane helpful for his knee and back. His earnings in 1967 were $9100; in 1968, $9595; in 1969, $11,002.02; in 1970, $11,150.15; in 1971, $8651. Plaintiff's total medical expense was $995.80.

Frederick Schwartz, president and business agent for the bricklayer's union, Local No. 14, testified for plaintiff as to prevailing gross union wage rates in eight northwestern Illinois' counties for the years 1967 through 1972, and that they averaged about $9.87 per hour for 1972. In Will and Grundy Counties the rate for hours in excess of 40 per week is doubled; in the other counties the overtime rate is time and one-half.

Eugene Duff, professor of Economics at St. Francis College, testified that the entry wage rate for persons entering social work with a bachelor's degree is approximately $8000 annually. He also testified that the Illinois Department of Public Aid has five grades of social workers, and that those who qualify can move to the top rate of $1550 per month although promotions would be slow without a master's degree. He indicated, however, that by executive order, preference in hiring is given to members of the Negro race like plaintiff, and that today's economy does have a demand for Negro men with college education, and that it is possible to earn a graduate degree entirely by night schooling.

Dr. Rentschler testified that he first saw plaintiff on January 30, 1968, when plaintiff was complaining of severe pain in any position and that it was aggravated by any walking, sitting, laying or bending but felt some better with heat. Plaintiff indicated to the doctor that the pain began in the area of his back and radiated into both lower extremities, greater in the left than in the right. The doctor diagnosed severe back contusion in the lumbar region with sprain and spasms, and contusion to both knees. The sprain refers to a ligamentous injury. Examination of the nerves of the lower extremities by reflection sensation and muscle power showed them intact. Dr. Rentschler prescribed a back brace to be worn whenever symptoms are present and recommended use of a bedboard. Within time, said the doctor, stability of the lumbar area can be regained by formation of scar tissue. In his last examination of plaintiff in 1973, there was some improvement noticed but the patient still complained of spasms in the lower lumbar area and tenderness in the knee. "The direct blow into the lumbar region has scarred down well," said the doctor, and "I don't believe it will give him difficulty." With respect to the right knee, the diagnosis was chondromalacosis patella which the doctor said means that the cartilage on the underside of the patella is no longer of normal quantity and is highly suggestive of a cartilage tear. An arthrogram was negative, however, but the doctor was of the opinion that that test is not conclusive. He also stated that he felt the knee has not given plaintiff sufficient trouble to justify surgery at this point although that might become necessary in the future. He considered plaintiff's condition as of the time of the last examination in 1973 to be permanent, and foresaw no possibility that plaintiff would be able to resume any occupation involving climbing, bending, lifting, crawling or prolonged standing or sitting. He indicated that a cartilage tear is not demonstrable by x-ray. The doctor expressed the opinion that in the near future, plaintiff will probably not require a great deal of medical treatment and that five or six times on the average in each year he may need infiltration and possibly physical therapy. The therapy is about $10 a visit; the office calls with infiltration are about $20 each. He did anticipate that the cartilage condition in the knee would deteriorate.

Dr. Hedges, an orthopedic surgeon in Joliet since 1938 testified for defendant that on September 6, 1972, he had occasion to examine plaintiff in his office but found the effort somewhat frustrated by the fact that plaintiff would answer no questions as to where he hurt or the nature of his discomfort or disability, and made voluntary resistance in respect to tests involving ranges of motion. In respect to lower extremities, the doctor's findings were like those of Dr. Rentschler, that reflections were within normal limits, equal and active; no weakness or atrophy and nothing remarkable about circulation was found. When plaintiff's knee was not being examined, Doctor Hedges stated, he observed a normal range of motion; when it was being examined, the doctor said the patient resisted and would not move it. The straight leg test was 90 degrees bilaterally. The doctor could detect no evidence of muscle spasm in the lumbar-sacral area; x-rays of the lumbar-sacral spine and right knee were negative for pathological findings. He found no evidence of softening of the cartilage in the right knee. There was no objective evidence of any injury in his opinion. On cross-examination, Dr. Hedges said an x-ray would not show a tear to a ligament or damage to a nerve and that he couldn't say whether plaintiff suffers from any ligamentous injury to his knee or low back, but reaffirmed that his objective findings were negative.

In denying defendant's post-trial contention that the verdict is excessive, the circuit court relied on cases cited by plaintiff for the principle that the determination of damages in personal injury cases is a matter within the peculiar competence of a jury since no arithmetical computation of damages is possible, and because verdicts for a particular injury in other cases are only of general relevance. Noncek v. Ram Tool Corp., 129 Ill. App.2d 320, 264 N.E.2d 440 (1st Dist. 1970) (where a verdict for $107,480 to a 42-year-old plaintiff was affirmed); Trowbridge v. Chicago & Illinois Midland Ry. Co., 131 Ill. App.2d 707, 263 N.E.2d 619 (3rd Dist. 1970) (where a verdict of $72,500 in favor of a 41-year-old railroad worker was sustained); Elizer v. Louisville & Nashville R.R. Co., 128 Ill. App.2d 249, 261 N.E.2d 827 (5th Dist. 1970) (verdict of $130,000 to a 24-year-old railroad worker approved); Schutt v. Terminal Railroad Association, 79 Ill. App.2d 69, 223 N.E.2d 284 (5th Dist. 1967) (verdict of $125,000 to a 38-year-old railroad worker sustained); and Stephenson v. Air Products & Chemicals, Inc., 114 Ill. App.2d 124, 252 N.E.2d 366 (5th Dist. 1969) (verdict of $300,000 affirmed).

• 4 The recognition that compensation for personal injuries does not lend itself to mathematical computation, and that there exists no precise rule by which an award for damages can be exactly fixed, is not meant to imply that determinations by juries on the issue of damages transcend the power of review. In Noncek, as in the other cited cases, the verdict was left undisturbed not merely because it was the determination of a jury, but by reason of the additional essential finding on review that the verdict was within the range of what the evidence would reasonably support. A reviewing court has no power to intervene merely because the verdict is in excess of what the judges would have allowed had they heard the evidence and were to have made the original determination. (Lau v. West Towns Bus Co., 16 Ill.2d 442, 158 N.E.2d 63 (1959).) But where it appears to a reviewing court that the award is beyond the flexible range of what is reasonably supported by the facts, and the court is convinced that it is excessive and out of due proportion to the injury and loss shown by the record, so that it demonstrates passion, prejudice or misapprehension, then it becomes the duty of the court to correct the error. Thus, in an annotation at 12 A.L.R.3d 117, 183-189 (1967), and the 1974 supplement thereto, the author summarizes 87 cases during the period 1951 through 1974 in which State and Federal courts have ordered remittiturs in suits in various jurisdictions in the United States where soft tissue injuries to the lower back were involved in combination with other injuries, including to the knees, when it was determined by the courts that the verdicts were so far beyond the range supported by the evidence as to indicate the intervention of error.

The facts and injuries in the foregoing cases cited by plaintiff seem entirely distinguishable from those here. None of them solely involves soft tissue contusions, spasms, sprains and abrasion with possible cartilage tear in a knee. One of them establishes permanent impairment of future earning ability by a sheet metal worker because of blindness caused by falling into a vat of copper cyanide; the evidence did not establish any training for intellectual pursuits (Noncek, where a verdict for $107,480 to a 42-year-old plaintiff was affirmed). Another of the cases cited contained evidence of x-rays demonstrating a narrowing of the segments between vertebrae at L-5 and S-1 with positive Laseque sign indicating sciatic nerve involvement, and atrophy of the left thigh (Schutt, where a verdict of $125,000 to a 38-year-old railroad worker was sustained). In a third instance, the record showed plaintiff sustained severe burns to the right leg from being immersed in scalding water, with secondary infections, many long hospitalizations and several surgical procedures for plastic and other corrective repairs (Elizer, where a verdict of $130,000 to a 24-year-old railroad worker was sustained). In Trowbridge, a verdict of $72,500 in favor of a 41-year-old railroad worker was sustained by proof that several muscles in plaintiff's leg, about 6 inches above the ankle, were severed by a power saw and could not be repaired, causing a permanent foot drop and an impairment of the ability to move the foot inward or outward. There was also evidence of atrophy of plaintiff's leg below the scar, and that minor nerves and minor parts of the vascular system were affected so that plaintiff was industrially unemployable. In Stephenson, a 41-year-old painter sustained multiple injuries from two falls. The first was from a flagpole he was painting to a roof deck 20 to 25 feet below. Some years later, he fell from a walkboard extended between two ladders when his leg folded in consequence of a physical disability sustained in the first fall. X-rays revealed compression fractures of the right heel and ankle, atrophy of the right leg, loss of cervical lordosis and scoliosis. There was loss of left ankle reflex and limitation of motion on lateral bending. A diagnosis of psycho-physiological, musculo-skeletal disorder was also made by a psychiatrist and plaintiff was hospitalized for electric shock treatments. Plaintiff complained of headaches, pains in shoulders, neck, arms, loss of grip, pain in the leg, nervousness and insomnia, and had to wear orthopedic shoes. There was evidence of arthritic changes in the areas of injury and incidents of paralysis of the bowel. A verdict for $300,000 was affirmed as being within the range of the evidence.

In the case at bar, there is no evidence of lacerations of any kind; no evidence of any fractures or other bony disorders or of any vertebral or intervertebral changes; no atrophy, reflexes are normal and there is no evidence of any neurological involvement; no paralysis of bowels, no burns or loss of vision, no psychological disturbances or disfigurements or deformities; no periods of hospitalization or evidence of surgery; no large medical expense and no evidence with any reasonable degree of medical certainty that future surgery would be required or of the cost thereof; no evidence of any arthritic conditions, changes or aggravation, and no evidence of scoliosis. Although there was some evidence suggestive of a possible cartilage tear in the knee, plaintiff's doctor said of this that it had not given sufficient trouble to justify surgery, and only that it might become necessary in the future. None of plaintiff's evidence contradicts the testimony of Doctor Hedges that x-rays of the lumbar-sacral spine and right knee were negative for pathological findings. While plaintiff by reason of ligamentous injury is precluded from his occupation as a bricklayer or other heavy labor, the evidence also indicates that he is well educated and intellectually suited for work in a field where there exists a great demand for his services. While plaintiff in the case at bar, like ...

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