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Brandel v. Yellow Cab Co.

OPINION FILED JUNE 26, 1981.

ROBERT BRANDEL, PLAINTIFF-APPELLEE,

v.

YELLOW CAB COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ERNEST HARPER UTTER, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Defendant, Yellow Cab Company, appeals from the judgment entered on a jury verdict for plaintiff, who was injured when his bicycle collided with a cab. On appeal, defendant contends that it was deprived of a fair trial because of plaintiff's counsel's repeated misconduct and the submission of an erroneous instruction to the jury. Defendant further contends that because of plaintiff's counsel's inflammatory and irrelevant argument, the damages award was excessive. We affirm the verdict as to liability but order a remittitur of a portion of the damages award.

On May 22, 1973, plaintiff, 53 years old, was injured while riding his bicycle on a sidewalk in front of a Yellow Cab garage. He testified that a cab suddenly emerged from the garage, directly into his path, when he was approximately 10 feet away. Plaintiff braked but could not stop in time and consequently collided with the left front wheel of the cab. Upon impact, he fell from his bicycle, landing on his left hip. He testified that the cab, after briefly stopping, continued driving out of the driveway and down the street.

Sawa Kaufbusch, who owns a shop next to the cab garage, testified that he heard a crunching noise and turned to see plaintiff lying on the ground. He saw a cab in the driveway. Kaufbusch then went back to his shop to call the police. Upon his return the cab was no longer in the driveway. Kaufbusch testified that he assumed the cab had returned to the garage.

When the police arrived, plaintiff asked for an ambulance. Officer Chiavole testified at trial that when he arrived he saw plaintiff seated near the garage and a cab in the driveway. He talked to an employee but failed to ascertain who had been driving the cab or the license plate number. He further testified that the employee's version of the incident was incorporated into his police report. *fn1 Officer Chiavole testified that plaintiff had told him the cab was parked in the driveway and he had to swerve to avoid hitting it, at which time his wheel "buckled" and he fell off the bicycle. On cross-examination, however, Officer Chiavole stated that plaintiff was "incoherent" during their interview. Plaintiff denied telling the officer this version of the incident and further denied that it happened that way.

Plaintiff was taken to a hospital for treatment. A cab company investigator, accompanied by Officer Chiavole, came to the hospital and took a statement from plaintiff. The investigator did not identify himself. Plaintiff stated that he was in pain when the investigator talked to him and that although he recognized his signature on the purported statement, he did not recall reading the document or signing it. The statement was not offered into evidence and the investigator did not testify at trial.

The same cab company investigator also interviewed Kaufbusch about the incident and asked him to sign a written report of their conversation. After glancing briefly at the paper, Kaufbusch refused to sign it. Kaufbusch testified at trial that the report contained untrue statements. Further, he testified that the investigator had promised to "take care of any problems" if Kaufbusch signed it. This report was not received into evidence, either.

Plaintiff's third and final witness was Dr. Sydney Morgenstern, who operated on plaintiff's hip after the incident. He testified that plaintiff was in pain when he arrived at the hospital for treatment. The X rays disclosed a fracture at the neck of the femur, which Dr. Morgenstern testified is the "worst type of fracture you can get in the hip" because the blood supply to that area is very poor and it does not heal well. According to Dr. Morgenstern, it is uncommon to sustain this type of fracture absent a significant force or trauma. The doctor also testified as to the surgical procedures he used to install a rigid compression screw and plate in plaintiff's hip.

After a three-week hospital stay, plaintiff was discharged. He used crutches for six months and walked with a limp after he stopped using crutches. During a follow-up visit to Dr. Morgenstern, X rays taken of plaintiff's injury revealed that the fracture had successfully mended. In July of 1979, however, X rays of the fracture indicated arthritis and necrosis of the head of the femur, resulting from a lack of blood to the area. In Dr. Morgenstern's opinion, these conditions were causally connected to plaintiff's fall. He testified that the appropriate treatment would be a total hip replacement, which he believed other orthopaedic surgeons would have performed by the time of the trial. His more conservative view, however, was to wait until plaintiff, then 59, was older, to increase the chance that the artificial hip would last for the rest of his life.

Plaintiff testified regarding the continuing pain in his hip. He stated that he was forced to lie in a certain position to sleep at night and that during the day his left leg felt like it was "going to give." He further testified that he was taking medication for the pain.

At the close of the evidence, defendant moved for a mistrial on the basis that plaintiff's counsel had repeatedly alluded to plaintiff's poverty and the fact that he was on public aid. He also moved for a directed verdict on the ground that plaintiff was contributorily negligent, as a matter of law, because he had ridden his bicycle on the sidewalk in violation of a city ordinance, was not looking straight ahead, and did not see the cab until it was half-way out of the garage. The court denied both motions. Following a conference on the jury instructions and the scope of permissible arguments, counsel presented their closing arguments.

The jury returned a verdict in favor of plaintiff, assessing damages of $150,000. They also answered, in the negative, a special interrogatory as to plaintiff's contributory negligence. The subsequent post-trial motion was denied, following a lengthy hearing.

OPINION

I

• 1 Yellow Cab's first and major argument is that it was deprived of a fair trial because of the repeated misconduct of plaintiff's attorney. After examining the trial transcript, however, we disagree. In analyzing the specific instances of alleged misconduct we must bear in mind that the trial court, in observing the attitude and demeanor of counsel, was in the superior position to determine the effect of counsel's remarks on the jury. We are limited to determining whether the trial court's denial of the defendant's motion for a new trial was an abuse of discretion. Enloe v. Kirkwood (1970), 120 Ill. App.2d 117, 256 N.E.2d 459.

• 2 Although Yellow Cab does not argue that the jury's verdict is against the manifest weight of the evidence, it characterizes the liability issue as presenting a close question of fact. Accordingly, defendant argues that the errors require reversal because of the strong likelihood that they incited the jury's passion or prejudice. While it is true that in a close case, "any substantial error which might have tipped the scales in favor of the successful party calls for reversal" (Both v. Nelson (1964), 31 Ill.2d 511, 514, 202 N.E.2d 494, 496), we do not believe that "substantial errors" are present in this case. We need not determine, therefore, whether this is a "close" case. However, before analyzing the alleged errors, we will briefly discuss the evidence that defendant specifically challenges.

To demonstrate that the jury could reasonably have concluded that defendant was not negligent or that plaintiff was contributorily negligent, Yellow Cab enumerates several inconsistencies in plaintiff's testimony regarding the speed he was travelling on his bicycle, the direction he was looking, and how far the cab had proceeded down the driveway when he first saw it. In plaintiff's deposition he stated he was travelling about ten miles per hour. At trial, however, he estimated his speed at five miles per hour. (He ...


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