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Wright v. Yellow Cab Co.





Appeal from the Circuit Court of Cook County; the Hon. James L. Griffin, Judge, presiding. PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff sued defendants for injuries she received when struck by a taxicab owned by defendant Yellow Cab Company and driven by defendant Harvey. After extensive testimony, the jury returned a verdict of $25,000 in favor of plaintiff. Subsequently, the trial court granted defendant's motion for judgment notwithstanding the verdict and also entered a conditional order for a new trial in the event the judgment notwithstanding the verdict was reversed on appeal.

On appeal, plaintiff contends that: (1) the trial court usurped the jury's function when it entered a judgment notwithstanding the verdict; and (2) the trial court erred in entering a conditional order for a new trial where no grounds for such an order existed. For reasons that follow, we reverse the circuit court.

The pertinent facts reveal that on July 30, 1973, approximately 6 p.m., plaintiff, age seven, was struck by a cab owned by Yellow Cab Company and driven by Tristano Harvey in the 2500 block of West Harrison Street in Chicago. Harrison Street is a four-lane, east-west street with the two center lanes used for traffic and the two outer lanes for parking. As a result of the accident, plaintiff suffered multiple fractures, an abrasion and contusion to the forehead and an injury to the lip.

Pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), plaintiff called defendant Tristano Harvey as her first witness. Harvey stated that on July 30, 1973, as he approached the 2500 block of West Harrison, he noticed children playing on the grass and on the porches. Harvey indicated that there were no speed limit signs posted on Harrison. However, he knew that when no speed limit signs are posted, the maximum speed limit is 30 miles per hour.

When questioned by defense counsel, Harvey stated that he was traveling about 25 miles per hour as he approached the 2500 block of Harrison, heading west. He saw cars parked on the north side of the street. As he approached the parked cars, a little girl darted out from between two of them in front of his cab, and ran across the street. Harvey reacted by patting his brakes, thereby reducing his speed to 15 miles per hour. When the cab was even with the first parked car, Harvey then saw plaintiff standing in front of the second parked car. When she darted out into the street, defendant pulled to the left and slammed on the brakes. As he pulled to the left, he heard a thump on the side of his cab. He hit the brakes harder and the cab went into a counterclockwise skid. When the cab finally stopped, it was headed in an easterly direction.

On recross by plaintiff's counsel, Harvey somewhat altered his description of where the parked cars were in relationship to the children. Harvey indicated that he was at "the tail end of the first parked car" when the first child darted out between the second and third parked cars, and plaintiff was standing two cars away from the first child. At the time of the collision, Harvey stated that he was traveling approximately 15 miles per hour.

Next, Thelma Wright, plaintiff's mother, testified that she was at home with her husband at 2533 West Harrison, Chicago, when Frank Williams, a neighbor, came to their window and told them that their daughter had just been hit by a car. When Mrs. Wright arrived at the scene of the accident, plaintiff was lying on her side on the north side of the street with her arm folded back and her leg twisted at the ankle. When queried as to plaintiff's safety training, Mrs. Wright stated that she had instructed plaintiff to look in both directions before crossing streets and that plaintiff appeared to follow her instructions.

On cross-examination, Mrs. Wright testified that she started giving safety instructions to plaintiff before she started kindergarten, including instructions not to cross the street if an oncoming car was too close. However, she never defined "too close." Mrs. Wright further admitted that she took plaintiff to see Dr. Sheinkop the weekend before trial for the sole purpose of helping him prepare his testimony.

Next, Salita McDowell, passenger in defendant's cab at the time of the accident, testified on behalf of plaintiff. McDowell stated that in the early evening of July 30, 1973, she entered defendant's cab in front of a medical clinic that she had just visited. When she entered the cab, defendant told her that he did not have time to take her anywhere. However, when she told him that she did not feel well, he agreed to take her home. Because she was not feeling well, McDowell laid down on the back seat of the cab. Suddenly, as the cab was heading west on Harrison, it started sliding around, causing McDowell to fall to the floor and hit her head. Prior to this sudden movement, she had not heard any thumps on the side of the cab or the cab's horn. Further, although she did not actually look at the speedometer, McDowell testified that, in her opinion, the cab was traveling between 40 and 45 miles per hour right before the accident. McDowell further stated that when the cab stopped spinning, defendant turned around in his seat and asked McDowell if she was all right. He then told her to stay in the cab, and he got out. McDowell also left the cab for a few minutes and started to walk around. She noticed several people looking at something further down the street. While she was walking, someone approached her and asked her if she was all right and advised her to sit in the cab.

On cross-examination, McDowell stated that she never saw the cab strike anything, but she felt it. Moreover, at one point during the cab ride, McDowell had complained to defendant Harvey that he was driving too fast, but he never slowed down. When she got out of the cab after the accident, she saw a little girl lying in the street next to some parked cars. McDowell admitted that on the day after the accident, she signed a statement which stated that other than driving a little fast, defendant Harvey was driving "safe and okay."

Next, Frank Williams, eyewitness to the accident, testified on behalf of plaintiff. On July 30, 1973, Williams was sitting on a log on the south side of Harrison Street, facing the street. From this vantage point, he saw the entire accident in which plaintiff was injured. According to Williams, defendant Harvey was driving west on Harrison at approximately 35 to 45 miles per hour. When plaintiff was struck by the cab, she was standing in the parking lane approximately eight to 10 feet in front of a parked car. There were no parked cars to the west of plaintiff. Williams stated that he never heard a horn, screech of tires or any other type of warning. After the cab struck plaintiff, it continued westward until it hit a viaduct, spun around and faced east. Williams further testified that plaintiff was "laying to the left, up from the left fender of the parked car." Her arm was folded up her back and her leg was bent underneath her. After the accident, Williams knocked on the Wrights' window and told Mrs. Wright that plaintiff had been hit by a car.

On cross-examination, Williams stated that the cab was in the traffic lane, going west, until it reached the spot where plaintiff was standing. It then veered right toward the parking lane and struck plaintiff. The cab did not hit the parked car, nor did it go up on the curb. Further, after striking plaintiff, the cab swerved to the left and continued west until it hit the viaduct about a block west of where plaintiff was hit. At this point in his cross-examination, defense counsel asked Williams to look at an unsigned statement allegedly given by him several years earlier to an insurance investigator. When asked if it was a true and correct statement, Williams answered, "No, Sir," although he admitted to making certain parts of the statement. Williams further testified that the front end and side of the cab were damaged when it scraped the curb, and he thought one of the tires blew out and a hubcap fell off.

On redirect, Williams stated that the man who took the statement from him in the presence of Williams' wife and a small child, offered to pay him if he signed the statement. Williams refused.

Thereafter, outside the presence of the jury, defense counsel argued that Dr. Sheinkop was not plaintiff's treating physician and, thus, should not be permitted to testify as to any diagnosis. In response, plaintiff's counsel stated that the records indicate that Dr. Sheinkop was the attending physician and that all treatments of plaintiff at the hospital were performed by interns or residents directly under Dr. Sheinkop's control and supervision. Defendants' motion was denied.

Dr. Mitchell B. Sheinkop, orthopedic surgeon, then took the stand on behalf of plaintiff. Dr. Sheinkop testified that as assistant professor of orthopedics at Rush-Presbyterian Medical Center, he oversees the work of certain interns and residents, verifies their filed reports, and discusses cases with them. In plaintiff's case, Dr. Richard Sidell, orthopedic resident in training, and Dr. Ellen Divine, senior orthopedic resident on the service, saw plaintiff in the emergency room on July 30, 1973. Their findings were discussed with Dr. Sheinkop and a treatment plan was approved. Further, all written reports filed by the residents were personally reviewed by Dr. Sheinkop.

On cross-examination, Dr. Sheinkop admitted that he did not personally examine plaintiff before treatment. However, he did supervise and approve the treatment given by the attending residents. Moreover, Dr. Sheinkop stated that, on occasion, he personally treated plaintiff. When queried as to why his treatment was not recorded on the hospital chart, Dr. Sheinkop replied that he rarely makes entries on any chart because that is "a responsibility for which house staff is compensated." Regarding his examination of plaintiff on March 14, 1981, Dr. ...

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