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Balestri v. Highway & City Transp.





APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding. MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

This appeal arises from an action to recover damages for the personal injuries sustained by plaintiff as he worked on a loading dock operated by defendant. Following a jury trial, judgment was entered for plaintiff in the amount of $50,000. The trial court denied plaintiff's motion for a new trial on the issue of damages only and it is from the denial of that motion that plaintiff appeals. He contends that a new trial on the issue of damages is warranted because: (1) the trial court erred when it allowed defense counsel to elicit testimony regarding plaintiff's prior injuries, (2) the trial court erred when it refused plaintiff's tendered jury instruction number 12, (3) defense counsel's reference to a criminal charge against plaintiff and his final argument to the jury were both highly improper and prejudicial, and (4) the jury failed to adequately consider each and every element of damages in arriving at its verdict.

At trial the following evidence pertinent to this appeal was adduced.

For plaintiff

Plaintiff Vito Balestri on his own behalf

On May 16, 1973, his trucking experience consisted of approximately 19 years as a truck driver, and eight years as a dispatcher. Prior to 1971 he had been relatively free of injury. Between 1971 and 1973, he sustained injuries to his back, left elbow, right hip and left shoulder, and therefore missed work for several months each year. He returned to work in late April of 1973, and handled a full and normal workload. On May 16, he drove a tractor with a 40-foot trailer to Terminal Freight Handling Company. Upon his arrival, Bernard Boos, an employee of defendant, was assigned to help him load 20 cartoned refrigerators, each one standing approximately 6 1/2 feet high and weighing between 400 and 500 pounds, onto the truck. To load a refrigerator, he would hold a two-wheeled dolly while Boos would push the carton to the edge of the four wheeled cart, or "flat," upon which it was standing. As Boos tipped the refrigerator toward him, he would push the blade of the dolly underneath it, catching it on the dolly, and receiving the weight of the falling refrigerator with the upper part of his body. He and Boos would then run the refrigerator up a ramp to the trailer, and he would bring it into the trailer and position it.

After loading 18 refrigerators in the manner described above, Boos tipped the 19th one toward him. As it began to tilt, a two by four board of wood started to slide off the top of the carton. He yelled "look out". Boos ran away, and he jerked to his right. The refrigerator fell and he caught its full impact with his body, while the board struck him on his left elbow. Boos then took the load while he leaned against a door post. He was taken to the doctor who was on the premises. An X ray of his arm revealed no broken bones, but he refused to allow the doctor to examine his back saying that he had to report the accident to his employer. After contacting his dispatcher, and switching tractors with another driver, he drove back to All-American Transport.

He began to visit Dr. Coleman on a weekly basis from May to October, and received various treatments for his back and elbow. He returned to his work as a truck driver in September, but had to stop on the fourth day because his pain was too great. In October he visited Dr. Scuderi, an orthopedic surgeon, and was hospitalized at St. Joseph's Hospital where a number of surgical and therapeutic procedures were performed. He next was hospitalized at the Rehabilitation Institute of Chicago and was under the care of Dr. Sahgal. Since the time of his accident his back has given him constant pain and he is no longer capable of a variety of activities which he used to engage in before his accident. He identified a number of bills which he incurred for medical services and prescriptions which totaled $4,118.50.

On cross-examination he admitted that since 1964 he had been treated for a number of various injuries including an injury to his left elbow in 1972, and a back injury in 1971. He admitted that in September 1973 after he found that he could no longer drive a truck and was told by his boss that no other job was open, he did not apply anywhere else for any other job.

Bernard Boos under section 60, an employee of defendant

On the day of the incident he was working with plaintiff in the manner which plaintiff described. As he was standing next to plaintiff tilting one of the refrigerators onto the dolly, he noticed a piece of wood that was starting to fall from the top of the carton. While holding the refrigerator, he ducked his head out of the way. After the wood fell, he and plaintiff finished putting the refrigerator on the floor. Plaintiff did not appear to him to be in any pain. Plaintiff said that the wood hit and hurt his arm.

Emmett Jefferson under section 60, an employee of defendant

On May 16, 1973, he was Ben Boos' supervisor. He did not see the accident. His description of the procedure for loading refrigerators from flats onto trucks corroborated plaintiff's testimony. At trial he would only say that plaintiff "looked funny," but he admitted testifying at a deposition that after the accident plaintiff appeared to be in pain. He denied that plaintiff said anything to him about twisting his body, but he admitted testifying at a deposition that plaintiff told him he twisted to avoid being hit by the wood. He acknowledged that he saw plaintiff rubbing his shoulder and arm. He denied ever having seen the type of wood which struck plaintiff being used on the loading dock, but admitted testifying at a deposition that he had seen defendant's employees use that type of wood as a block in their loading operations.

On direct examination he stated that plaintiff never complained about having injured his lower back or elbow, and that plaintiff's walk appeared to be normal. He recalled that he had seen two by four pieces of wood brought into the terminal on trucks, and that truck drivers would throw the wood and other rubbish anywhere they could. He acknowledged that it was his duty to inspect the cartons which contained the refrigerators, but he did not know that a piece of wood was on top of a refrigerator on the day of the incident.

Dr. Carl Scuderi

He is an orthopedic surgeon. He first examined plaintiff on October 10, 1973 and determined that his lower back was weaker than normal due to a congenital condition known as spondylolisthesis. This normally would not cause any problems, but an injury adding stress would be competent to produce pain and disability. Plaintiff also had an inflammation of the joint lining of his left elbow, but he made a good recovery after an operation and had no further complaints. Although he prescribed various treatments for plaintiff's back, plaintiff continued to complain of severe pain. He concluded that plaintiff had a functional overlay, which did not mean that plaintiff wasn't having the pain, but rather that he could not find any ...

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