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12/01/87 Harry Levin, v. Welsh Brothers Motor

December 1, 1987

HARRY LEVIN, PLAINTIFF-APPELLEE

v.

WELSH BROTHERS MOTOR SERVICE, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

518 N.E.2d 205, 164 Ill. App. 3d 640, 115 Ill. Dec. 680 1987.IL.1764

Appeal from the Circuit Court of Cook County; the Hon. John M. Breen, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

In this action for personal injuries, defendant Welsh Brothers Motor Service, Inc. (Welsh), appeals from the judgment for $797,860 entered against it by the circuit court of Cook County on a jury verdict in favor of plaintiff Harry Levin (Levin), and from the order denying Welsh's post-trial motion. The case involves a collision between Welsh's tractor-trailer and Levin's passenger automobile that occurred on March 21, 1979, in Morton Grove, Illinois.

On liability, Welsh contends that (1) the jury's findings that negligence by Welsh was a proximate cause of Levin's injuries, and that 82% of the total proximately causal negligence was attributable to Welsh, were against the manifest weight of the evidence, and (2) the trial court committed reversible error by (a) prohibiting Welsh's accident reconstruction expert from testifying, (b) refusing to declare a mistrial when Levin's counsel advised the jury that a verdict for Levin would be precluded if a special interrogatory were answered affirmatively, and (c) giving duplicative verdict forms that allegedly encouraged a verdict for Levin.

On damages, Welsh contends that (1) the jury's assessment of damages was excessive and against the manifest weight of the evidence; (2) the trial court committed reversible error by (a) permitting Levin's former employer to testify as to what Levin might have earned if Levin had not been injured, (b) prohibiting Welsh from presenting surrebuttal testimony as to Levin's medical condition, and (c) refusing to strike testimony by Levin's neuropsychologist as to the alleged possibility of a causal relationship between the accident and Levin's diabetes; and (3) the trial court erred in giving instructions and verdict forms that permitted an award of damages for future orthopedic expenses in the alleged absence of evidence as to such expenses.

For the reasons set forth hereinafter, we affirm.

Facts

On the morning of March 21, 1979, Levin, a commissioned salesman, was driving his passenger automobile northward on Waukegan Road, in Morton Grove, Illinois, just north of Emerson Road and approaching the Avon Industries plant. As he began to draw abreast of the Avon driveway while traveling about 35 miles per hour in the middle lane of three lanes, a tractor-trailer rig being driven southward on Waukegan Road by a driver for Welsh began a slow left turn across the northbound lanes in front of Levin and into the Avon driveway. Though Levin quickly jammed on his brakes, his car did not stop in time, and his car slid into the rear side portion of the trailer. The tractor-trailer combination was 55 feet long. On the morning in question, it carried a 35,000-to 40,000-pound shipment.

The truck driver testified as follows: He stopped in a left-turn lane and signaled before beginning his turn. He turned while in first gear, which would permit a maximum speed of 10 miles per hour. He had a clear view southward along Waukegan Road before beginning his turn, and there were no vehicles between him and the stoplight at Emerson Road, about 450 feet away, as he began his turn. After his tractor had entered the Avon driveway, he heard a noise that later proved to be the sound of Levin's car crashing into the trailer's rear wheel area.

Levin testified that he was 70 to 80 feet from the truck when it began its turn; that he did not believe that the truck had made a full stop before turning; and that he noticed no turn signals on the truck.

Skid marks 56 feet long and attributable to Levin's car were found on the road after the collision. Levin was injured in the collision and hospitalized for 61 days. While hospitalized, he was given physical therapy so that he might relearn to walk and feed himself. After release, he continued to receive outpatient therapy. He also received therapy at the Rehabilitation Institute of Chicago, where he was fitted and refitted with orthotic devices that allowed him to ambulate. All the several medical professionals who treated Levin testified that they found signs of brain damage that manifested itself in right-side weakness, facial drooping, memory deficits, and other phenomena.

At trial, much medical evidence and evidence regarding Levin's past and projected earnings were offered, as well as extensive evidence about the details of the collision and other matters. Additional facts derived from such evidence will be referred to as pertinent during the following Discussion.

Opinion

*fn1. MANIFEST WEIGHT OF EVIDENCE: LIABILITY

On the question whether the jury's verdict was against the manifest weight of the evidence, Welsh's brief argues the facts at length, asserting that they show Levin to have been negligent but do not show Welsh to have breached its duty of due care and that, even if the facts do show Welsh to have been at all negligent, they do not show Welsh to have been 4 1/2 times as negligent as Levin. In turn, Levin's brief argues at length that Levin's testimony contradicted Welsh's and that Welsh's testimony was inherently incredible. Levin contends that the jury was not required to accept Welsh's version of the facts and that there was ample evidence to support the verdict.

Except for one citation not on point, Welsh refers to no authority in support of its argument on the weight of the evidence, despite contending that "[this] is not an appeal which can be resolved by simply deferring to the finder of fact" (emphasis in original) and that "[the] strangeness and irrationality of the jury's findings on liability is unmistakeable [ sic ]." In contrast, Levin cites ample authority on testing the manifest weight of evidence. (Monier v. Winkler (1987), 158 Ill. App. 3d 724, 729, 511 N.E.2d 246, 250; Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236.) In accordance with the tests enunciated in Monier and Ford, the jury's verdict in the case at bar as to negligence on Welsh's part was not "unreasonable, arbitrary and not based on the evidence" (Monier, 158 Ill. App. 3d at 729, 511 N.E.2d at 250), nor was it "palpably erroneous and wholly unwarranted . . . [or] clearly the result of passion or prejudice" (Ford, 132 Ill. App. 3d at 412, 476 N.E.2d at 1236).

As Levin argues, "the jury had both the physical facts, common sense, and Harry Levin's testimony from which to find that [Welsh's driver] violated the statute" on yielding the right of way during left turns. (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-902.) Levin testified that Welsh's truck turned left across his path without first stopping, at a time when Levin was 70 or 80 feet short of drawing abreast of the driveway into which the truck was turning. Levin testified that he then applied his brakes as quickly as he could but that his car skidded into the right rear portion of the turning truck. This testimony alone belies Welsh's assertion that "there was no evidence that defendant had breached its duty of due care." And, despite Welsh's assertion that an independent witness, Peter Divita, "testified with certainty" that Welsh's truck stopped before turning, the record discloses that on cross-examination Divita testified that he could not be sure whether the stationary truck that he had seen was Welsh's truck and that trucks often turned into the driveway, which led to a shipping and receiving area. In any event, Divita testified that he saw a stationary truck for only a few seconds, did not observe it continuously, and heard the sounds of the accident about a minute or so afterward.

Although Welsh contends that Levin's negligence "is indisputable" and that he was speeding, the most support lent by Levin's testimony to the latter assertion came on cross-examination when Levin acknowledged that his highest speed immediately prior to the accident was "between 35 and 40" miles per hour. As Levin argues, ...


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