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Ryon v. Javior

OPINION FILED MARCH 20, 1979.

JACK RYON ET AL., PLAINTIFFS-APPELLEES,

v.

GERALD J. JAVIOR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS ROSENBERG, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant appeals from an order of the circuit court of Cook County setting aside a jury verdict for defendant and granting plaintiffs a new trial. The court granted defendant leave to appeal pursuant to Supreme Court Rule 306. Ill. Rev. Stat. 1975, ch. 110A, par. 306.

The sole issue for review is whether the trial court abused its discretion in granting a new trial.

We affirm.

On July 14, 1972, at approximately 1 p.m., an automobile driven by defendant, Gerald J. Javior, struck the rear of an automobile driven by plaintiff, Jack Ryon. Plaintiffs, Charles Shedivy and Marsha Dial, were passengers in the Ryon automobile. The collision occurred on 143rd Street, which is a two-lane road with a gravel shoulder approximately six feet wide. The road inclines upward near Oak Park Avenue and then becomes level. The collision occurred on the level portion of the road. On the day of the accident, it had been raining intermittently, and the pavement was wet in some sections.

Defendant, Gerald J. Javior, called to testify under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60), testified that he was driving alone in his 1968 Cadillac. He drove south on Harlem Avenue and turned left onto 143rd Street. His brakes were in good condition, and he had no trouble stopping at the intersection of 143rd and Harlem. Javior was driving east on 143rd Street at a speed of 35 miles per hour when he observed Ryon's automobile approximately six to 10 car lengths ahead of his. Ryon's automobile began to slow down, and the distance between the two cars decreased. Javior did not observe any signals or brake lights on Ryon's automobile. Javior took his foot off the gas to decrease the speed of his automobile, but he continued to approach Ryon's automobile, which was moving slowly. When he was approximately six car lengths behind Ryon's automobile, Javior saw brake lights, and he immediately applied his brakes. At this time Ryon's automobile was moving slightly. When Javior applied his brakes, the brakes started screeching, and he continued moving forward. The brakes locked, and the front of Javior's automobile slid and hit the rear of Ryon's automobile. Javior testified that upon impact, Ryon's car was directly in front of his and was entirely in the east-bound moving lane. After the accident, all three plaintiffs got out of the automobile, spoke to Javior and then got into an ambulance. Javior observed only that Ryon's finger was bleeding.

Plaintiff Jack Ryon testified that he was driving his 1961 Cadillac and Shedivy and Ms. Dial were passengers. All three were sitting in the front seat. As they were driving east on 143rd Street, Ryon noticed a friend's motorcycle in the grass approximately six to eight feet off the side of the road. Ryon testified that he was driving approximately 35 to 40 miles per hour and was on the level portion of 143rd Street when he first saw the motorcycle. Ryon was not sure how far away from the motorcycle he was when he first saw it. In a deposition, Ryon stated that he was 30 feet away from the motorcycle when he first saw it. Ryon testified that he immediately took his foot off the gas and gradually slowed down, intending to go on the shoulder of the road. As he was slowing down, Ryon's automobile was hit in the rear by defendant's automobile and was thrown into a ditch off the side of the road. Ryon testified that he had the turn signal and his brake lights on, that he was moving no faster than five miles per hour, and that the front part of his automobile was off the road when he was hit. The impact occurred approximately 10 feet east of where the motorcycle was stopped. Ryon did not see Javior's automobile prior to impact and could not say for sure whether he looked in the rearview mirror prior to slowing down. Ryon did not hear a screech of tires just prior to impact.

Ryon testified that upon impact, part of the dashboard on his car was torn and flew into the back seat. Ryon's small finger on his right hand was cut and was bleeding. Ryon went to Palos Community Hospital in an ambulance, and his finger was cleaned and bandaged and X rays were taken. Ryon then got his car out of the ditch and drove home. Approximately 4:30 p.m. on the same day Ryon went to Cook County Hospital where a doctor examined his hand. Ryon was admitted to the hospital, and surgery was performed on his hand. Ryon was discharged from the hospital the next day and remained under the care of Dr. Mirza at Cook County Hospital for approximately one year. Ryon testified that for approximately one year prior to the accident he was employed by Earl Scheib Auto Painting and earned about $2.50 per hour as a sander and painter. After the accident, he went back to work but had to quit because his hand hurt. He also worked for a short time at Clark Oil station and King Brothers gas station. Ryon testified that after the accident, he could not hold a job because he could not handle the machines. Ryon testified that when the weather gets cold, his hand freezes and he cannot work outside.

Plaintiff Charles Shedivy testified that he was riding in Ryon's automobile when the accident in question occurred. Shedivy first saw the motorcycle off the side of the road when Ryon's automobile was approximately 125 feet away from it. Shedivy testified that Ryon decreased the speed of his automobile gradually, put on the turn signal and began to pull off the road. Shedivy heard a screech of tires for one-half second immediately prior to the impact. Shedivy testified that upon impact his right limb, which is artificial, hit the dashboard and an aluminum belt, which secures the artificial limb, broke and ripped the dashboard. Part of the dashboard padding hit Ms. Dial in the face. His left limb also hit the dashboard, opening up a wound. Shedivy testified that he experienced "phantom pains," which are severe pains caused when his nerves send impulses to the missing limb. After the accident, Shedivy went to Palos Community Hospital in an ambulance. A doctor dressed the wound on his left limb, took X rays and gave him medication. Shedivy was released from the hospital the same day. Subsequently Shedivy was treated on two occasions by Dr. Pallily at Grant Rehabilitation Hospital and was given a prescription for sleeping pills. One week after the accident, Shedivy had the belt for the artificial limb repaired by Triple A Orthopedic at a cost of approximately $50. Shedivy replaced the artificial limb at a cost of $750.

Marsha Dial testified that she was a passenger in Ryon's car when the accident occurred. Ryon's car was moving slightly when it was hit, and she heard a screech of brakes just prior to impact. Upon impact, Dial was hit on the side of her neck by a piece of the dashboard. Dial went to Palos Community Hospital in an ambulance, and a doctor took X rays of her spine, neck and arm. Dial was given a neck brace which she wore for approximately 10 days. She was under the care of Dr. Hasbrouck for five or six months after the accident, and she received heat treatments and medication. Dial testified that prior to the accident she was employed as a waitress earning $1.35 to $1.45 per hour plus tips of $9 to $10 a day. She worked eight hours a day, six days a week. After the accident, Dial was off work for two weeks and then worked part-time since it was hard for her to bend over. Ms. Dial testified that the bill for the ambulance was approximately $25, the bill for emergency treatment was $75 and Dr. Hasbrouck's bill was $150. She had not paid any of the bills. Ms. Dial testified that she continues to have pains in her back and neck, particularly when it is damp or cold.

Edward H. Bennett III testified that he is a statistician employed by the American Medical Association in Chicago to keep records of physicians and surgeons licensed and practicing in the area. The records indicate that in July 1972 Dr. Mirza was in training at Cook County Hospital with a specialty in general surgery and that at the time of trial Dr. Mirza resided in New York.

Edwin Brock testified that in July 1972 he was employed as a division manager for Earl Scheib Auto Painting Company and that the rate of pay for a sander and painter in July 1972 was $1.90 to $3 per hour. The average work schedule was eight hours a day, five days a week.

Dr. Robert C. Busch, a physician and surgeon associated with Mt. Sinai Hospital in Chicago, testified that he examined Ryon's right hand on February 17, 1977 (the day before trial), at the request of plaintiff's counsel. Dr. Busch observed an operative scarring which was thick and rough and a general weakness and stiffness of the right hand. Ryon's right hand measured eight inches, while the left hand measured 7 1/2 inches. Dr. Busch observed a loss of 40 degrees of extension of the small finger. The other fingers on the right hand were of normal strength. Dr. Busch testified that an attempt could be made to repair the condition of Ryon's hand by a tendon transplant; however, he would not recommend any surgery because the chances of success were minimal. Dr. Busch concluded that Ryon's injury was a permanent condition. Dr. Busch testified that a large portion of his work, approximately 60 percent, consists of examining patients sent to him by attorneys for the purpose of evaluating injuries. Ryon was the first patient sent to him by plaintiffs' counsel; however, more than 25 patients were referred to him by the partner of plaintiffs' counsel. Dr. Busch had not performed any surgery for a period of one year prior to trial.

Dr. Cecil F. Hasbrouck testified that on July 14, 1972, he was associated with Palos Community Hospital and examined Marsha Dial in the emergency room. His records indicate that Ms. Dial was given a physical examination, that X rays were taken and a cervical support was placed around her neck. Ms. Dial was discharged the same day but remained under Dr. Hasbrouck's care until December 1972. Dr. Hasbrouck examined Ms. Dial on six occasions from July 25, 1972, to December 19, 1972, and she complained of pains in her neck and upper back. Dr. Hasbrouck applied traction, gave ...


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