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Chloupek v. Jordan

OPINION FILED JUNE 14, 1977.

MARIE CHLOUPEK, PLAINTIFF-APPELLEE,

v.

LOUVENIA JORDAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Marie Chloupek, brought suit against defendant, Louvenia Jordan, in the circuit court of Cook County for personal injuries which she allegedly suffered as a result of being struck by an automobile operated by defendant. After a jury trial, a verdict was returned for plaintiff in the amount of $15,000. The defendant then filed a post-trial motion for judgment notwithstanding the verdict, a new trial and for remittitur. This motion was denied by the trial court. Defendant appeals from the trial court's denial of her motion for a new trial, contending that she was prevented from receiving a fair trial because the trial court abused its discretion and committed error and because plaintiff's attorney conducted himself in a prejudicial manner during the proceedings.

We affirm.

Although defendant raises no issue as to her liability in this matter, a short summary of the facts elicited at the trial is necessary for our determination of the issue raised in this case.

On October 7, 1972, plaintiff attempted to cross Lawndale Avenue in Chicago, Illinois, by walking westbound in the south crosswalk of the 26th Street and Lawndale intersection. When she reached the middle of the crosswalk, plaintiff observed defendant's automobile approach this intersection from the west on 26th Street and make a stop at the intersection's four-way stop sign. Without again looking at the car, plaintiff continued across Lawndale Avenue. When she was approximately three feet from the southwest curb, plaintiff was struck by the right front of defendant's vehicle as she executed a right turn to proceed south. Plaintiff testified that the automobile came in contact with her right shoulder, ankle and heel.

After this collision, defendant stopped her vehicle. She and a passenger in her car exited the automobile and walked over to plaintiff to see what had taken place. Defendant observed plaintiff on the pavement and testified that plaintiff was turning from her left side to her right and that her mouth was bleeding. The police were then called, and plaintiff was transported to the emergency room of a hospital.

At the hospital X rays were taken of plaintiff's right ankle and left hand, but no fractures were revealed. However, upon medical examination it was discovered that flesh had been torn from plaintiff's right ankle and heel. These wounds were cleaned; the torn skin was taped together, and bandages were applied. No stitches were used to close the lacerations.

Plaintiff was taken home the same day by a friend and a police officer. Upon undressing at her residence, plaintiff noticed that her right arm was swollen and that her right hip was black and blue.

Following the accident, plaintiff was bedridden for two weeks except for visits to her physician. Her daily needs were attended to by two friends during this period. Over the next 13 months plaintiff saw her personal physician about 40 times for treatment. The bandages on her right ankle and heel were changed ten times before the bleeding stopped.

Plaintiff testified that as a result of being struck by the automobile her right ankle has been constantly swollen; that she cannot sit properly; that she can no longer perform household work which requires her to get down on her knees; that she is in pain most of the time; and that she takes medication to relieve this pain.

At the time of the October 7 accident, plaintiff was 71 years old and used a cane when she walked. Plaintiff testified that she suffered from an arthritic left hip and that she used the cane for added stability. She also stated that she worked for a small neighborhood grocery six days a week prior to this accident. In return for her work at this store, the owner gave plaintiff food and household items. Plaintiff estimated that she took home $20 worth of food every week. However, she admitted that the store owner never gave her cash and that he never provided her with a W-2 Internal Revenue Service form. Lastly, plaintiff testified that she never returned to work at the grocery after being struck by defendant's automobile.

Plaintiff's attending physician died before trial. Because of this, plaintiff's attorney sent plaintiff to another doctor for two examinations. This physician testified that he conducted the first examination of plaintiff about a year after the accident had taken place. During this examination he discovered that plaintiff's left hip was fixed in a flexed position, and he concluded from his observation that this condition was caused by an old injury. The physician also alleged that plaintiff was permanently disabled and was in pain as a result of the injuries she suffered in the automobile accident.

At the trial defendant testified that she saw plaintiff fall to the pavement when she made her right turn. However, defendant denied striking plaintiff.

In support of her contention that she was denied a fair trial, defendant argues: (1) that the trial court erred when it allowed certain nonimpeaching statements by defendant to stand over the objection of defense counsel; (2) that the court erred when it failed to strike these statements and when it failed to instruct the jury to disregard such testimony; (3) that the court erred when it allowed plaintiff's hypothetical; (4) that the court erred in giving and refusing certain jury instructions; (5) that plaintiff's counsel improperly examined plaintiff; (6) that plaintiff's counsel improperly examined defendant; (7) that plaintiff's counsel repeatedly interrupted defense counsel's cross-examination of the examining physician in a manner prejudicial to defendant; and (8) the closing argument of plaintiff's counsel was improper and was intended only to inflame the jury against defendant.

Ordinarily a litigant is precluded from raising on appeal those matters not raised in the post-trial motion. (Mangan v. F.C. Pilgrim & Co. (1st Dist. 1975), 32 Ill. App.3d 563, 575, 336 N.E.2d 374, 383-84; Ill. Rev. Stat. 1975, ch. 110A, par. 366(b)(2)(iii).) Defendant's second, fifth and seventh arguments were not raised in her post-trial ...


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