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Duffek v. Vanderhei

OPINION FILED FEBRUARY 19, 1980.

ROBERT DUFFEK, PLAINTIFF-APPELLANT,

v.

WILLIAM VANDERHEI, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES H. FELT, Judge, presiding.

MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 25, 1980.

Plaintiff, Robert Duffek, filed an action against defendant, William Vanderhei, to recover for personal injuries sustained as a result of a collision between defendant's automobile and plaintiff's motorcycle. Defendant counterclaimed for property damage incurred as a result of the collision. After a trial, the jury rendered a verdict in favor of plaintiff for the sum of $25,000, found against defendant on the counterclaim and answered negatively to a special interrogatory as to whether plaintiff was guilty of contributory negligence. Pursuant to defendant's post-trial motion, the trial court vacated the judgment in favor of plaintiff for $25,000, vacated the special interrogatory and entered judgment for defendant notwithstanding the verdict. The trial court also granted a new trial on all issues in the event that a court of review should reverse the judgment notwithstanding the verdict. Plaintiff appeals from the order entered on the post-trial motion. The questions for review are whether the trial court erred in vacating the jury verdict and special interrogatory and in entering a judgment notwithstanding the verdict and in conditionally ordering a new trial on all issues.

For the reasons hereinafter discussed, we reverse and remand the cause with directions to enter judgment on the jury's verdict.

The following evidence was adduced at trial: a collision between defendant's automobile and plaintiff's motorcycle occurred on July 2, 1973, in the intersection of Clarence Street and 21st Street in Berwyn, Illinois. The weather on the day of the occurrence was warm, dry and clear. Clarence Street is a residential, one-way street permitting only northbound traffic; 21st Street is a two-lane, east-west street in a residential area. On the day in question there were no cars parked on 21st Street, but there were cars parked on Clarence Street. The intersection of Clarence and 21st Streets is not controlled by traffic signals or signs. The speed limit on both Clarence and 21st is 25 miles per hour.

Plaintiff, Robert E. Duffek, testified as follows: On July 2, 1973, plaintiff was riding on his motorcycle when he met a friend, George Evans, and they decided to go to Cermak Plaza on Cermak Road and Harlem Avenue. Evans was also travelling on a motorcycle and his wife was riding on the back behind him. Plaintiff and Evans rode north on Austin Avenue and then turned west on 21st Street. Plaintiff then travelled west on 21st Street at approximately 25 miles per hour, and Evans followed about two car lengths behind him. When plaintiff was approximately 50 feet from the intersection of Clarence and 21st Streets, plaintiff observed defendant's automobile approaching from the south. Defendant's vehicle was at the southeast corner of the intersection, and its turn signal was activated, indicating that defendant was going to turn east. Plaintiff did not estimate the speed of defendant's vehicle. Plaintiff kept going but defendant did not turn, and the front tire of plaintiff's motorcycle hit plaintiff "flew over" defendant's car and landed on the street. Plaintiff was taken by ambulance to MacNeal Memorial Hospital where a cast was put on his right arm. Dr. Kominsky treated plaintiff at the hospital and after the accident. A few weeks after the accident, the cast was removed and plaintiff's arm improved but remained sore. Some time thereafter, plaintiff's arm began to hurt again, so plaintiff went to Dr. Patrick Smyth at Oak Park Hospital. Dr. Smyth took X rays, and plaintiff had surgery on his arm. *fn1

Plaintiff testified that at the time of the accident he was working as a mechanic earning $170 a week. Plaintiff missed 1 1/2 to two months of work. In September 1973 plaintiff started to work at a Standard Oil station but missed eight months of work due to the accident.

Plaintiff testified on cross-examination that he applied his brakes when he reached the intersection but he did not skid. The impact occurred in the middle of the intersection. Plaintiff testified further that on March 14, 1974, while working at Standard Oil, he broke his right arm again, and Dr. Smyth treated him.

George Evans testified that on July 2, 1973, he was operating his motorcycle west on 21st Street in Berwyn. Evans was travelling at a speed of 20 to 25 miles per hour and following about three car lengths behind plaintiff. Evans observed the brake lights of plaintiff's motorcycle when plaintiff was 10 to 15 feet from the intersection; however, at that time Evans did not observe defendant's vehicle. Evans did not see the actual impact because he had turned his head to talk to his wife, who was sitting behind him on the motorcycle. After the accident, plaintiff's motorcycle was at the north curb of 21st Street, and plaintiff was near the southwest corner of the intersection.

Dr. Robert Kominsky, a certified orthopedic surgeon, testified as follows: Dr. Kominsky first saw plaintiff on July 2, 1973, at approximately 8 p.m. in the emergency room of MacNeal Hospital. Dr. Kominsky made a physical examination which revealed an injury to plaintiff's right forearm. X rays were taken which showed a fracture of the ulna on the right forearm. Dr. Kominsky applied a cast on the right arm. The cast was removed on August 24, 1973, and plaintiff's arm was put into a cloth sling; X rays taken at that time showed that the bone was healing. Dr. Kominsky saw plaintiff for the the last time on October 29, 1973, at which time plaintiff's arm was not completely healed, and Dr. Kominsky advised plaintiff to restrict activities and continue to use the sling. Based on his examinations and the X rays, it was Dr. Kominsky's opinion that the fracture was sufficiently traumatic to cause pain to plaintiff.

Dr. W. Patrick Smyth, an orthopedic surgeon, testified as follows: Dr. Smyth examined plaintiff for the first time on December 11, 1973, at Oak Park Hospital. At this time plaintiff had a long-arm cast. From his examination and from observation of X rays taken, Dr. Smyth determined that plaintiff had a nonunion or fracture that failed to unite at the midshaft of the right ulna, and that plaintiff needed surgery to bring the fragment together. Plaintiff had the surgery in December 1973 at Oak Park Hospital, and he remained hospitalized for five days. Dr. Smyth saw plaintiff on January 28, 1974, at which time the sutures were removed and plaintiff started motion therapy. On February 15, 1974, Dr. Smyth saw plaintiff and took X rays of the arm; plaintiff stated he had fallen at work. On March 19, 1974, Dr. Smyth examined plaintiff again and determined that plaintiff needed further surgery, which was performed in March 1974. It was Dr. Smyth's opinion that the previous nonunion had not healed and it was disturbed by plaintiff's fall at work and that it was the same fracture. Plaintiff was hospitalized again on May 29, 1974, at which time a portion of bone was taken from plaintiff's hip and placed in his right arm to stimulate healing. Dr. Smyth saw plaintiff for the last time on October 24, 1974, at which time plaintiff had no pain and had a good range of motion, and X rays showed a solid bone bridging across the area where there had been a fracture or nonunion. Dr. Smyth's records indicated that plaintiff was working with minimal discomfort, he had an excellent grip and slight discomfort with some rotation of the forearm. Dr. Smyth testified over defendant's objection that in his opinion the condition of plaintiff's arm in October 1974 was a permanent condition in that plaintiff would have some disability.

Plaintiff's hospital bills and doctor bills were admitted into evidence, and plaintiff rested. A motion for directed verdict made by defendant was reserved by the trial court.

Defendant, William Vanderhei, testified on his own behalf as follows: On the evening of July 2, 1973, defendant was driving his 1972 Oldsmobile 98, which was in good condition, north on Clarence Avenue. Defendant was travelling at a speed of 20 to 25 miles per hour, and as he approached the intersection of Clarence and 21st Street, he removed his foot from the gas pedal. As he reached the south curb, defendant looked to his left and his right and he observed two motorcycles on the north side of 21st Street approximately one-quarter of a block or 80 to 100 feet away. In a deposition defendant had stated that the closest motorcycle was 75 to 80 feet from the intersection. Defendant did not estimate the speed of the motorcycles. Defendant continued into the intersection at a speed of 20 miles per hour or less. When the front of defendant's vehicle was halfway past the north curbline of 21st Street, defendant felt the impact of the collision. Upon impact, defendant felt a sudden jolt forward and lost control of the vehicle, but he was not injured. The impact pushed the rear end of defendant's vehicle west, which caused it to veer to the right side of Clarence Street where the front of defendant's vehicle struck the rear end of a parked vehicle. The parked vehicle moved a few feet and struck another parked vehicle directly in front of it. After the accident, defendant went over to plaintiff, who was at the southwest corner of the intersection; plaintiff's motorcycle was at the northeast corner of the intersection. Defendant observed a skid mark approximately 40 feet in length on 21st Street and observed debris at the point of impact. Defendant's vehicle did not leave skid marks. At his attorney's request, defendant measured the intersection from curb to curb and determined that both streets were 28 feet in width. Defendant's vehicle was approximately 18 to 20 feet in length and weighed 4000 pounds.

Richard Kostel, police officer for the city of Berwyn, testified that on July 2, 1973, at approximately 7:20 p.m, he went to the intersection of Clarence and 21st Street pursuant to a radio dispatch and found plaintiff in the street on the north half of Clarence. The motorcycle was in the north section of 21st Street just west of the center of Clarence. Officer Kostel observed debris in the north part of 21st Street and on the east part of Clarence and observed a skid mark, which he measured at 38 feet, 2 inches long, on 21st Street. Based on his prior investigations and experience, Officer Kostel concluded that the point of impact was approximately seven feet west of the east curbline of 21st Street where the debris was located and that the skid mark was made by the motorcycle because it ended where the debris was located. Officer Kostel had not inspected the pavement prior to the accident. Officer Kostel ...


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