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Lay v. Knapp

OPINION FILED MARCH 6, 1981.

ONIDA LAY ET AL., PLAINTIFFS-APPELLEES,

v.

MARGARET KNAPP, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Grundy County; the Hon. RICHARD R. WILDER, Judge, presiding.

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

The plaintiff, Onida Lay, received a judgment of $23,147.18 as compensation for injuries she suffered in a traffic accident that occurred on July 31, 1977. The judgment was awarded by a Grundy County jury on a case of contested damages only, liability being admitted. The defendant, Margaret Knapp, driver of the vehicle that struck the vehicle in which the plaintiff was a passenger, appeals the verdict rendered by the jury. The defendant's sole allegation of error concerns plaintiff's jury instruction No. 13.

Evidence concerning the injuries to Mrs. Lay was presented at the trial in the circuit court. The jury heard testimony that after the collision of July 31, 1977, the plaintiff suffered pains, stiffness and loss of mobility. There was testimony in the record that these symptoms variously affected the plaintiff's head, neck, back and hip. Further, there was testimony that the plaintiff suffered from a condition of degenerative arthritis prior to July 31, 1977, and that plaintiff's symptoms could in part be linked to this prior condition. Finally, there was testimony before the jury that plaintiff's prior condition would have been aggravated by the trauma of an automobile collision.

With this evidence before them, and obviously with more detail than is recounted here, the jury was charged. The court read the standard Illinois Pattern Instruction (IPI) as to measure of damages:

"You must fix the amount of money which will reasonably and fairly compensate the Plaintiff for any of the following elements of damage proved by the evidence to have resulted from the negligence of the Defendant:

- The nature, extent and duration of the injury.

- The aggravation of any pre-existing ailment or condition.

- The disability resulting from the injury.

- The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.

- The reasonable expense of necessary medical care, chiropractic care, and services received and the present cash value of the reasonable expenses of medical care, chiropractic care, and services reasonably certain to be received in the future.

Whether any of the elements of damage has been proved by the evidence is for you to determine." (Emphasis added.) (IPI Civil No. 30.01 (modified); IPI Civil No. 30.02; IPI Civil No. 30.03 (italicized); IPI Civil No. 30.04; IPI Civil No. 30.05; IPI Civil No. 30.06 (modified).)

Also, over objections, the court read plaintiff's instruction No. 13:

"Plaintiff's right to recover damages for her injuries and disability is not barred or to be limited in any way by the fact, if you find it to be a fact, that the Plaintiff's injuries and disability resulted from an aggravation of a pre-existing condition by the occurrence in question nor by reason of the fact, if you find it to be a fact, that the Plaintiff because of a pre-existing physical condition was more susceptible to injury than other persons might have been."

It is defendant's contention that instruction No. 13 was argumentative and placed undue emphasis on one element of damages. Defendant believes this error in the jury's charge ...


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