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Kitsch v. Goode

OPINION FILED APRIL 26, 1977.

EUGENE C. KITSCH ET AL., PLAINTIFFS-APPELLANTS,

v.

ELMER R. GOODE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Madison County; the Hon. HORACE L. CALVO, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

A jury in the Circuit Court of Madison County returned verdicts of $75,000 and $25,000, respectively, in favor of plaintiffs-appellants Eugene C. Kitsch and Betty L. Kitsch in their personal injury action against defendant-appellee Elmer R. Goode. *fn1 Goode filed a post-trial motion alleging numerous errors, and the court granted him a new trial as to both plaintiffs. Plaintiffs timely petitioned for leave to appeal under Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306), and we allowed the petition. The sole question on appeal is whether the trial court's action in granting the motion for a new trial was an abuse of judicial discretion.

The cause arose out of an automobile collision which occurred about 3 p.m. on December 7, 1971, at the intersection of State highway 157 and Walnut Street in Collinsville. The weather at the time was described as "misty" or "hazy." According to plaintiffs' testimony, they had turned onto highway 157, a four-lane road running generally north and south, some 210 to 220 feet from the intersection, heading south. Mr. Kitsch, who was driving, testified that he activated his left-turn signal and got into the inner lane, intending to make a left turn east onto Walnut Street. He came to a stop at the intersection and remained there for one or two minutes, with his turn signal operating and his foot on the brake, waiting for the traffic coming from the opposite direction to clear. Plaintiffs then heard a squealing of tires and defendant's car struck theirs directly in the rear, propelling it about 100 feet straight down the highway.

Defendant's account of the collision varied somewhat from that of plaintiffs. He testified that he was proceeding south in the inner lane of highway 157 at 40-45 miles per hour when plaintiffs' car, which was two or three car lengths ahead of him in the outer lane, pulled directly in front of him. Goode saw no turn signal. He hit his brakes when the Kitsch car was about 40 feet ahead of him, but the pavement was wet and he was unable to stop before skidding into the rear end of plaintiffs' car, which had not yet come to a complete stop. The parties stipulated that defendant's car left 70 feet of skid marks on the highway prior to the point of impact.

Much of the testimony at trial was directed to the extent of the plaintiffs' injuries. Eugene Kitsch was 46 years old at the time of the accident. Formerly a switchman on the railroad, he had worked as a railroad yardmaster for about 12 years. Some three months prior to the collision, he had sustained an injury to his back when a tree limb fell on him. He received outpatient treatment for this injury, and did not miss any work because of it. He was not experiencing any problem with his back at the time of the automobile accident.

Kitsch testified that he felt numb immediately after the accident. He was able to go home, but his back began to hurt and he had difficulty sleeping that night. The next day was a regular day off work. The following day, December 9, he was not able to work; instead, he reported to the Missouri Pacific Hospital, complaining of back and neck pains. He was treated by Dr. Antonio Portugal, who had X rays taken and prescribed muscle relaxants and analgesics, a back brace, and a neck collar. Kitsch wore the back brace for eight or nine months.

During the year 1972, according to Kitsch, he was unable to work a total of 34 days. In the first half of 1973, he missed another 16 days. During the remainder of 1973 and 1974, he used up all his vacation days (he was entitled to four weeks' vacation per year) on days when he was unable to work. Since May 1973 he had been under the care of Dr. Kilian Fritsch, who had prescribed certain exercises for his back. At the time of trial he was in constant pain. It sometimes took him three hours to get to sleep at night. He testified that his back had become progressively worse since the accident. His condition restricted his activities around the house. He was unable to pick up anything with any weight to it. His back pain was especially severe after long periods of sitting.

Dr. Portugal, a general surgeon, testified by deposition on behalf of Kitsch. He had diagnosed Kitsch's injuries as a cervical (neck) sprain and an aggravation of a previous thoracic vertebra injury. He took X Rays on December 9 which showed a fracture on the anterior-superior portion of the 12th vertebra. Apparently there had been a compression fracture of the same vertebra at the time Kitsch was hit by the tree limb, but it had not previously been noticed on the X rays taken at the time.

Dr. Portugal testified that he advised that Kitsch wear a back brace to maintain the spine in a fairly rigid position, and prescribed muscle relaxants. He later also prescribed a cervical collar. In August 1972, some eight months after the automobile accident, Dr. Portugal began to try to "wean" Kitsch from the back brace. He continued to prescribe muscle relaxants and analgesics. He saw Kitsch on numerous occasions, the most recent on May 7, 1973. In his expert opinion, the injuries for which he treated Kitsch had a direct relationship to the automobile collision. The damage, he testified, was permanent; there would always be some pain because of the weakening of the back. His prognosis was "fairly good," but he said that Kitsch would have a "tendency to have midback pains off and on from here on in." His ability to work would depend on his pain threshold.

Dr. Fritsch, an orthopedic surgeon, testified on behalf of Kitsch that he first saw him on July 9, 1973, at which time he was complaining of low back and neck pains. Dr. Fritsch compared the X rays of Kitsch's back taken after the injury caused by the falling limb with those taken after the automobile accident. The difference which he found was that, in the latter X rays, a piece of bone which was merely impacted in the earlier pictures had been knocked completely off the vertebra. He testified that the automobile collision of December 7, 1971, had thrown the back alignment out, resulting in what is known as a kyphosis (backward curvature of the spine).

When Dr. Fritsch first examined Kitsch, he found a round dorsal spine with a sway back, spasm and tightness of muscles in the back, and limitation of motion in the back. There was also some limitation of motion in the neck. He recommended resumption of use of the back brace, a cervical collar, and the application of heat and massage to the neck and back. He also recommended back exercises and suggested that Kitsch use a pillow when he sits for any length of time. He prescribed muscle relaxants, valium, and equanil.

His prognosis was that Kitsch's condition would remain about the same, with continuing limitations of movement in the lower back and neck. In his opinion, there was a causal connection between the automobile collision and the conditions for which he treated Kitsch. Kitsch was incapable, according to Dr. Fritsch, of performing manual labor or doing any heavy lifting, pushing, or pulling.

Dr. Max Goldenberg, a surgeon, testified on behalf of defendant that he examined Eugene Kitsch on January 4, 1974. In his expert opinion, the automobile accident may not have aggravated the fracture of the vertebra caused by the falling tree limb. In his opinion, the difference shown in the X rays was more likely caused by Kitsch's walking around for three months after his original injury without a back brace. Dr. Goldenberg testified that Kitsch was "industrially unemployable" at the time he examined him, but he said that he based that conclusion on Kitsch's "emotional overlay," not on his physical condition.

Betty Kitsch was 39 years old at the time of the accident. She testified that she thought she was knocked out for a minute or two after the collision. Her neck began to bother her immediately after the accident. Her family doctor referred her to Dr. Fritsch, who took X rays and in turn referred her to Dr. Edward Eyerman, a neurologist. Dr. Eyerman gave her certain medications, including injections of a cortisone-type drug into the neck, and prescribed a hard neck collar and physiotherapy. Mrs. Kitsch testified that there had been no improvement in the condition of her neck since the day of the accident. She has continued to experience headaches, neck and back pains, numbness in her arms and hands, and inability to sleep. During 1975 the condition of her back worsened, and Dr. Eyerman put her in pelvic traction. At the time of trial she was still taking medication and undergoing physiotherapy.

As in the case of Mr. Kitsch, the expert witnesses called by the parties disagreed as to Mrs. Kitsch's prognosis. Dr. Eyerman testified by deposition that he first saw Mrs. Kitsch on January 4, 1972; he diagnosed her condition as a cervical sprain. In his opinion, her neck injury was certainly related to the automobile accident; he conceded that it might well have been a reinjury of a previous cervical sprain she had suffered some 11 years earlier. He could not say whether her back problems were caused by the accident. In his opinion, Mrs. Kitsch's condition was permanent, and she would require further treatments.

Dr. George Roulhac, a neurological surgeon, testified for defendant that he had examined Mrs. Kitsch on January 25, 1974; he also diagnosed her condition as a cervical sprain (whiplash). In his opinion, however, her prognosis was excellent. He did not think that the physiotherapy treatments were necessary. He testified that if Mrs. Kitsch would take traction at home and ...


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