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Fuery v. Rego Co.

OPINION FILED APRIL 26, 1979.

KENNETH E. FUERY, PLAINTIFF-APPELLEE,

v.

REGO COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. IRVING LANDESMAN, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The plaintiff, while painting the outside window frames of the defendant's plant, fell from his scaffold when someone inside the plant opened a window, knocking the scaffold over. He allegedly sustained certain injuries for which the jury awarded him $34,000. The defendant has contended first in its post-trial motion and now on appeal that (1) there was no evidence that the defendant was responsible for the accident and (2) the $34,000 award was against the manifest weight of the evidence in that the fractures in the right hand shown in the X rays pre-existed the fall from the ladder and were not caused by it. The trial judge rejected these contentions. We affirm.

At trial, the plaintiff Fuery testified that on July 10, 1972, he was employed by Cazel Painting Corporation as a painter; he earned about $310 a week. On that day Cazel assigned him to work at the defendant's plant with Pete, his foreman. He was to paint the windows on the outside of the building, a rectangular, one-story structure. For a scaffold, he used two A-ladders with a plank running between them. To paint he stood on the plank, about 17 feet above the ground. The scaffold was placed less than a foot away from the building. After he had been working about two hours, he suddenly felt the ladder jar. He looked down and saw someone, inside the plant, in work clothes, opening a window. The ladder went back; the whole scaffold fell and he was thrown to the ground. He used his right elbow and forearm to break the fall. Pete, who had been working on another outside wall, took Fuery into the nurse's office. She packed the wrist and hand in ice packs and put bandages on the scrapes. He remained in the nurse's office for over an hour. After that he took a bus to the Callahan Clinic, where he remained for at least two hours. They X-rayed his hand, packed it in ice, and then put it in a plaster cast. The cast was removed in about a month. He then received therapy treatments at the clinic.

Late in August or in September, the plaintiff attempted to go back to work. However, he was dismissed at the end of the first day because he could not do the work. Whenever he would try to paint, he would have cramps in his hand; it would "lock up" and he could not paint.

Some time after this the plaintiff obtained a temporary job as a bartender to replace someone who was sick. He made $100 a week plus tips. He later worked in a gasoline station. This ended when he went to the hospital because of a gunshot wound in his knee.

Fuery testified that the condition in his hand has not improved. He still suffers the cramps and the "locking up" if he tries to do strenuous work. He is not able to paint for eight hours a day anymore although painting is his only skill. He also cannot play golf or bowl anymore. He does not have the strength in his right hand that he used to have.

He also testified that he had never sustained an injury to his right hand prior to July 10, 1972, and did not sustain any injury to it after that date.

Farouk Barakat, the defendant's manager of industrial engineering, testified for the plaintiff as an adverse witness under section 60 of the Civil Practice Act. On July 10, 1972 the plant was closed for repairs. There were about 40 to 50 people in the plant, maintenance men under Barakat's supervision. There were also a few people in the shop and the office. All of these wore work clothes. When asked if he had seen anyone inside the plant who was not an employee of the defendant, he replied "I don't recall, no." He agreed that the defendant kept records of the people coming into the factory who were not employees. However, he never produced these records although a demand to produce them had apparently been served before trial and this demand was repeated at trial. Nor did the witness ever give any explanation for the fact he never produced them.

Barakat testified that the windows at the plant were opened by pulling on a chain. When opened, the bottom half of the window swung outwards, the top half in. It could be opened to the extent the window was completely horizontal. He also testified that there were no signs posted at the plant on the day of the accident warning people not to open the windows because men were working outside.

Nurse Bragan was also called as an adverse witness pursuant to section 60 of the Civil Practice Act. On July 10, 1972, she was working for the defendant as an industrial nurse; she was the only medical person on the defendant's premises. Fuery was brought into her office. She looked at his arm; his wrist was a little swollen and painful. She put a metal splint on the arm. She probably spent 20 minutes with Fuery.

Dr. Edward Grossman, a doctor specializing in orthopedic surgery, was also called by the plaintiff. He testified that he examined the plaintiff on March 3, 1973. He found a deformity of the fifth metacarpal bone, which is the bone on the outer side of the hand which connects with the fifth finger. He further testified that "at the base of this bone there was a bump which felt hard and bony. The distal end of the bone was dropped down as if to show there was some shortening from the result of the injury. The grip of the hand was weaker than that of the opposite side of the hand. In squeezing both hands at the same time, the measurement of the right hand showed one-half inch larger than the left hand, indicating a swelling."

Dr. Grossman took X rays of Fuery's right hand. They disclosed two fractures, one of the fifth metacarpal bone and one of the end of the third finger involving the joint. Both appeared to be healed. However there was some mild displacement of the main part of the metacarpal bone and there was a chip off the joint of the third finger.

Dr. Grossman could not tell the age of the fractures by the X rays, except that since it normally takes six to eight weeks for a fracture to heal, they were probably older than that. There was some mild displacement of the fifth metacarpal bone; this produced the bump and the falling down of the head of the bone. Likewise, the fracture of the third finger was not completely healed; chip fractures often do not heal. He was of the opinion that these conditions were permanent; that the injury was a competent cause of pain and of a difficulty in maintaining a tight grip on an object.

The defendant's sole witness was Dr. Berislav Fulgosi, a graduate of the University of Granada, who was also licensed to practice medicine in Illinois. Dr. Fulgosi testified on direct examination that he examined and treated Fuery on July 10, 1972. He had found a contusion of the right forearm and wrist; the X rays showed an old fracture but no new fracture. He put Fuery in a plaster mold for ...


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