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Long v. Yellow Cab Co.

OPINION FILED SEPTEMBER 30, 1985.

MARJORIE LONG, PLAINTIFF-APPELLEE,

v.

YELLOW CAB COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Allen A. Freeman, Judge, presiding.

JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Marjorie Long, brought an action against the defendant, Yellow Cab Company and Michael Asante, alleging injuries suffered while she was a passenger in a taxicab owned by defendant and driven by Asante. After trial, the jury returned a verdict against defendant for $108,700. On appeal, defendant argues: (1) plaintiff improperly presented evidence regarding the occurrence of the collision which was irrelevant and prejudicial; and (2) misconduct by plaintiff's counsel prejudiced defendant and resulted in an excessive verdict.

We affirm.

Plaintiff called Michael Asante as an adverse witness. He testified that on November 1, 1977, he drove a Yellow taxicab. While traveling on Kennedy expressway, with plaintiff as a passenger, the taxicab struck a concrete wall. After the collision plaintiff appeared to be in pain. The witness tried to help plaintiff, but she asked not to be touched. Defendant objected to counsel's question regarding the degree of pain plaintiff seemed to have experienced. The objection was sustained, and the jury was admonished to disregard the question. An ambulance arrived at the scene within a few minutes. The plaintiff was taken out of the taxicab in a stretcher and was taken to a hospital. Immediately after the witness completed his testimony, and while in the presence of the jury, plaintiff's counsel moved to have Asante dismissed as a defendant. Defense counsel moved for a mistrial. Defendant's motion was denied.

Dr. Jonathan Bock-Seng Po testified by evidence deposition that he is a radiologist practicing in California. In October of 1977 plaintiff was referred to him by Dr. Norman Marback. X rays of plaintiff's back taken in October showed "no fractures and no other abnormalities * * *." However, X rays of plaintiff's back taken on November 1, 1977, after the instant collision, showed a fracture of a vertebra which appeared to be of recent origin.

Dr. Norman Marback testified by evidence deposition that he is a chiropractic orthopedist practicing in California. He treated plaintiff after the accident on November 1. Plaintiff complained of stiffness in her lower back, throbbing, spurts of pain, spasms, shooting pain in her right leg and weakness in her hands. He treated plaintiff with ultrasound, massage, and manipulation of her neck.

Dr. Marback also testified he had initially treated plaintiff on October 11, 1977. On October 6, her car had been hit in the rear by another car. Plaintiff particularly complained of pain of her neck. However, in her medical history, plaintiff also indicated she was experiencing pain in her back. Dr. Marback ordered X rays be taken of plaintiff's cervical spine, thoracic spine, lumbosacral spine, and pelvis. The X rays were normal. Dr. Marback diagnosed that plaintiff received a cervical sprain in the October 6 accident. He treated plaintiff with manipulation of her neck.

Dr. Marback examined plaintiff again on January 18, 1978. After the examination, and after reviewing the X rays taken of the plaintiff immediately after the November 1 accident, Dr. Marback confirmed the diagnosis of Dr. Po that plaintiff suffered a fractured vertebra in the November accident. Furthermore, Dr. Marback concluded: that plaintiff will continue to have problems in her back; that she was probably in pain at the time of the trial; that there will be exacerbations of her injury; and that her condition will probably be permanent.

Dr. Samuel Gerber, a radiologist at Northwest Hospital, also testified. He identified the X rays taken of plaintiff at Northwest Hospital on November 1, 1977. Dr. Gerber stated that because of the location of plaintiff's vertebral fracture, and her general physical condition, it would be "almost impossible" for a chiropractor to have caused plaintiff's fracture through manipulation.

Dr. Gerber also testified he examined X rays taken of plaintiff on January 28, 1983. His diagnosis was that plaintiff was developing "post traumatic arthritis" in the fractured vertebra. Dr. Gerber's prognosis was that the arthritis would cause plaintiff pain, that the arthritis was permanent, and that the arthritis was progressive. He indicated that the pain would be exacerbated if plaintiff were to lift weights. Plaintiff's attorney asked the witness whether the pain would interfere with picking a child out of a crib. Defendant's objection to the question was sustained and the jury was admonished to disregard the question. Later, defense counsel moved for a mistrial based on that question. The motion was denied.

Plaintiff testified she was 28 years old at the time of the accident. Before the accident she was active in sports. She played tennis regularly and played in tournaments. She also ran and rode her bicycle regularly. During her testimony, defense counsel moved for a mistrial because plaintiff was crying in front of the jury. The trial judge denied defendant's motion but asked the plaintiff to restrain herself.

Plaintiff was wearing a rain coat during her testimony which she stated she was wearing because the cold hurt her back.

Plaintiff further testified that on November 1, 1977, she entered a yellow taxicab in front of her hotel to go to an address on Higgins Road. The driver asked her the fastest route to her destination. After plaintiff told the driver she did not know, he asked her to look up the address in a book. She moved to the center of the back seat of the taxi to converse with the driver.

While traveling on the Kennedy Expressway, the driver changed lanes. The taxi began to spin counterclockwise and struck an abutment. Plaintiff testified she was thrown to the left side of the taxi and then to the right side of the taxi. She felt "incredible pain" when she struck the right side of ...


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