APPEAL from the Circuit Court of Kane County; the Hon. JOHN K.
KRAUSE, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Defendants, Lloyd Appleby and Chrysler Corporation, appeal from judgments of the Circuit Court of Kane County awarding plaintiff, Jane W. Lindsay, $265,000 as damages for injuries sustained in a motor vehicle collision and awarding her husband, Gregory Lindsay, $10,000 for loss of consortium. Defendants assign as error the denial of their motions for directed verdicts and for judgment n.o.v.; the admission and exclusion of evidence; certain instructions given to the jury; prejudicial argument by plaintiff's counsel; and that the verdicts were excessive.
The accident occurred at 8:15 p.m. on September 19, 1975, at the intersection of State Route 23 and Melms Road, approximately one mile north of Genoa, Illinois. Route 23 is a two-lane highway running north and south, and Melms Road has two lanes and is controlled by stop signs where it meets Route 23. The area around the intersection is flat and open. At the time in question Jane Lindsay was 25 years of age, married and had one child. She was traveling south on Route 23 at a speed of approximately 45 miles per hour, and as she approached the intersection she saw a car entering it on Melms Road to her right and about 20 feet in front of her. She applied the brakes and swerved to the left but was unable to avoid the collision. She later told an investigating officer that she remembered seeing the headlights of the other vehicle shortly before she entered the intersection and estimated it was traveling about 70 miles per hour.
The second vehicle was driven by defendant, Lloyd Appleby, an employee of Chrysler, who was acting within the scope of his employment at the time of the collision. Appleby did not testify at trial, and he subsequently pleaded guilty to a charge of failing to obey a stop sign. The investigating officer testified that Appleby's vehicle left no pre-impact skid marks on the pavement but that there were skid marks from plaintiff's vehicle on Route 23 to the north of the intersection. Appleby told the officer he traveled Melms Road daily and knew there was a stop sign at the intersection.
Although plaintiff did not recall the impact, she did remember trying to avoid it. Her next memory was of a passerby helping her out of her car and standing next to it, bleeding from her forehead and the back of her head. She felt severe head and leg pains, and she became dizzy and lost consciousness. Plaintiff had regained consciousness when the ambulance arrived but could not recall anything else until after she was in the hospital. William Sullivan, one of the paramedics who responded to the accident, testified that plaintiff was conscious during the ride to the hospital but that when they turned on the siren she went into a grand mal convulsive seizure lasting 10 or 15 minutes.
Hospital records in evidence show an admission diagnosis of a whip lash injury to plaintiff's neck and lower back, a mild cerebral concussion and a post-epileptic seizure state. The admission records also contain a reference to her convulsion in the ambulance and a notation that she "had fits up to the age of six." While in the hospital plaintiff complained of severe headaches and dizziness, especially when she tried to stand. She was released on September 21 and returned the next day for an electroencephalogram (EEG).
Although the doctor who administered the EEG did not testify, his report was admitted in evidence without objection and it stated in part that there was an "abnormal EEG" with "difuse spike seizure activity during sleep," which was "compatible with seizures." A second EEG was conducted on April 29, 1976, and the report noted "slightly abnormal electroencephalogram with minimal seizure activity." Jane Lindsay's husband testified that commencing in May 1977 her personality began to change; she became delusional and believed she was being persecuted. In June, while riding in an automobile, she had a grand mal seizure.
Dr. Salvatore Martinez, a psychiatrist with training in neurology testified he had diagnosed her as suffering from a manic-depressive condition, a mental illness which, in his opinion, was unrelated to the collision. He testified that during the manic stage of this condition, the brain overproduces certain chemicals which stimulate it and can result in a convulsion, especially if a person has a propensity towards seizures. After reviewing her hospital records and the EEGs, Dr. Martinez noted that there were abnormal tracings which indicated that Jane Lindsay had a potential for convulsions. Although he agreed that the entry in the hospital admission record that she had "fits up to the age of six" could suggest a predisposition towards epileptic seizures, it was his opinion the abnormal EEGs were not the result of a pre-existing condition such as a tumor or a congenital defect, but were caused by the trauma of the accident. He testified that trauma such as a concussion can cause scarring of the brain tissue, which in turn can trigger convulsive seizures and that a scarring of brain tissue creates a propensity for convulsive seizures. As brain tissue does not regenerate, Dr. Martinez concluded that Mrs. Lindsay's injury was permanent and she would have a potential for seizures during her lifetime. He further testified that any propensity towards convulsions caused by the manic-depressive condition which plaintiff developed about two years after the collision would be in addition to the seizure potential resulting from the collision. Although plaintiff might eventually show some improvement, she would require medical care for the rest of her life.
Dr. Martinez described a convulsive seizure as a symptom or an effect of an underlying brain disorder such as a birth defect, tumor or of brain tissue scars from illness or injury. Such a seizure can also be brought on by loud noises or overconsumption of alcohol as well as the overproduction of certain chemicals in the brain of a person suffering from a manic-depressive condition. At the time of trial, Dr. Martinez had been treating Mrs. Lindsay once a month for her manic-depressive condition and for her predisposition towards convulsions which he had found resulted from the collision. As part of her treatment she must have an EEG performed every three months and the last EEG prior to trial showed the same abnormal pattern as had the previous test. Dr. Martinez further testified that his treatment of Mrs. Lindsay is a delicate task because the drug lithium carbonate which he prescribed for her manic-depressive condition causes a person to retain fluids and that fluid retention increases the potential for convulsions in a person with a predisposition towards them. To prevent seizures which might result from the injuries she received in the accident he also prescribed dilantin; this medication could not be given to her immediately after the accident because she was then pregnant and dilantin has been linked to birth defects. As dilantin must be administered to Mrs. Lindsay to control seizures, Dr. Martinez has recommended that she not have any more children. If she were to discontinue the use of this drug in order to fulfill her wish to have another child, the risk of another convulsion would be too great, since fluid retention during pregnancy, in addition to fluid retention caused by her necessary use of lithium carbonate, would increase her potential for seizures. Dr. Martinez also imposed certain limitations on her life style: no climbing ladders or other heights; to cook on the back burners of the stove to prevent burns should she have a convulsion and fall on the stove; to not operate machinery; to not drive an automobile for long distances; she may not bathe or swim alone and may not consume any products containing caffeine or alcohol.
Plaintiff testified that her use of dilantin produced unpleasant side effects, including an upset stomach if taken at times other than after eating; irritation to the gums and tongue; loss of energy and drowsiness; headaches when she doesn't wear sunglasses outside; she developed a mustache and it has adverse sexual effects upon her. In addition to these drug-related side effects she testified that she continued to have severe headaches once a week which last for approximately eight hours.
Dr. Evelyn Anderson testified as an expert medical witness on behalf of defendants. She had never examined or treated Jane Lindsay but did see her medical records. While Dr. Anderson agreed that the report of the first EEG did show tracings which could be the result of trauma, in her opinion they suggested an irritative reaction to the entire brain, such as would be caused by abnormal blood flow or encephalitis. Based upon her examination of this report Dr. Anderson concluded that the seizure activity it indicated was not related to localized brain injury as would be the case in post traumatic epilepsy. Although she also agreed that a head injury could be severe enough to cause scarring of brain tissue, she testified that scar tissue takes two or three days to form and it would be rare to see a traumatic epilepsy attack within an hour of the injury. If there was such an attack it could not, in Dr. Anderson's opinion, be related to permanent brain scar tissue.
Defendants initially contend that the trial court erred in denying its motion for directed verdicts or for judgments n.o.v. on the ground Mrs. Lindsay was guilty of contributory negligence as a matter of law. It is essentially their argument that since the area at the intersection was flat and plaintiff saw the lights of an approaching vehicle, she breached her duty to watch for automobiles entering the roadway on which she was traveling.
• 1 In Thomas v. Lynch (1978), 59 Ill. App.3d 542, 375 N.E.2d 859, the court held that plaintiff who was driving on a preferential highway had a right to expect that a car approaching from a sideroad controlled by a stop sign would yield the right of way and would not be contributorily negligent as a matter of law for failing to avoid the collision. The court there concluded that as plaintiff had applied the brakes as soon as she discovered danger, she had acted as would a reasonable and prudent person. In the present case, when Mrs. Lindsay saw the lights of an approaching vehicle from the side road she also could properly assume that defendant's car would stop before entering the controlled intersection. Although the presence of the stop sign did not relieve plaintiff of her duty to exercise ordinary care, she could assume that the other driver would not negligently fail to reduce his speed as he approached the intersection and obey the stop sign. (Thomas v. Smith (1956), 11 Ill. App.2d 310, 137 N.E.2d 117.) As Mrs. Lindsay did seek to avoid a collision as soon as she discovered danger, as would a reasonable and prudent person, under the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, defendants' motions for directed verdicts and judgment n.o.v. were properly denied.
• 2 We consider next defendants' contentions that the trial court erred in the admission and exclusion of certain evidence. They assert it was error to admit photographs of plaintiff's vehicle which showed blood on its white roof. The admission or exclusion of photographs is within the sound discretion of the trial court. (DeRosa v. Albert F. Amling Co. (1980), 84 Ill. App.3d 64, 404 N.E.2d 564; Levenson v. Lake-to-Lake Dairy Cooperative (1979), 76 Ill. App.3d 526, 394 N.E.2d 1359.) A photograph will be excluded when irrelevant or immaterial to the issues being tried or when its prejudicial nature clearly outweighs its probative value. (Rusher v. Smith (1979), 70 Ill. ...