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04/20/88 Donaciano Corrales, v. American Cab Company

April 20, 1988





524 N.E.2d 923, 170 Ill. App. 3d 907, 120 Ill. Dec. 741 1988.IL.564

Appeal from the Circuit Court of Cook County; the Hon. Richard J. Jorzak, Judge, presiding.


JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.


At noon on July 23, 1982, plaintiff was walking across the intersection of Broadway and Montrose in Chicago, when defendant's agent, driving a taxicab, struck plaintiff. Plaintiff testified that he waited at the corner for about 10 seconds and when the traffic light turned green, he entered the crosswalk. He saw the taxicab while he stood at the curb, but was unsure of the cab's speed. He looked at the cab, but then turned and looked straight ahead as he walked across the street. He looked straight ahead because he had the "green light so that I could cross and he had the red light." He denied telling the police that he crossed against the light.

Plaintiff testified further that at the hospital he could not see well because everything looked foggy and his eyes were moving around. He testified that upon discharge he still could not see well. He never noticed this problem prior to the accident. He denied not complaining about the vision problems at the hospital. He also denied that his eye problem was the same as it was before the accident.

Dr. Fournier, an ophthalmologist, testified for plaintiff regarding his eye injury. He diagnosed a cerebral concussion, laceration to the right eyebrow, nystagmus mobility disorder of the eyes, traumatic posterior vitreous detachment and vitreous hemorrhage related to the trauma, and multisystem injuries. Dr. Fornier believed the nystagmus was congenital, but aggravated by a cerebral concussion as a result of the accident. He concluded that the nystagmus was mild prior to the accident because it had not been noticeable to lay people. Dr. Fournier was questioned about plaintiff's denials, made at the hospital emergency room, of any visual complaints. The hospital record read, "Denies loss of consciousness, nausea vomiting, visual/hearing disturbances." Dr. Fournier stated "That's what it says, but I don't know if that's what it means." He explained: "I don't think that you can make that Conclusion by looking at this. You can say that he denies loss of consciousness. However, without knowing what was in the mind of Dr. Garcia, the way the sentence is punctuated, we don't know whether that ["denies"] carries over to the nausea and vomiting, visual and hearing disturbances. I think we're making an assumption in interpreting that sentence."

Roger Dickens, plaintiff's employer, testified that he never noticed plaintiff's eyes shaking and wandering prior to the accident.

Mohammed Sadeghian, a cab driver for defendant, testified that he was driving 25 miles per hour and had the green light when he entered the intersection. The light was never yellow or red. Plaintiff ran into the street, crossing at an angle and eight feet away from the crosswalk. Sadeghian immediately applied his brakes, but was unable to avoid striking plaintiff.

Barbara Ham, a passenger in the cab, testified for defendant that Sadeghian was driving about 25 miles per hour, and the traffic light was green as he approached the intersection. Plaintiff was looking straight ahead and ran into the street.

Julius Bronstein, the investigating police officer, testified for defendant that he interviewed plaintiff at the hospital, where plaintiff said he had the green light. His report, however, states that the pedestrian said "he went against the red light." At trial, the officer stated: "He said he didn't have the green light -- excuse me, I'll retract that statement, he didn't have the red light." The court would not allow the testimony to be corrected, and an offer of proof was made. "At the Weiss Hospital, in the emergency room, he was on the table. I asked him. 'Did you go against the light?' He said, 'Yes, I did go against the light.'"

Defendant attempted to call Dr. Jose Velasco, the attending physician on call in the emergency room when plaintiff was treated. The trial court ruled that his testimony would be barred because of defendant's failure to respond to a Supreme Court Rule 237 (107 Ill. 2d R. 237) request from plaintiff and because of a pretrial order excluding all undisclosed experts pursuant to Supreme Court Rule 220.

In an offer of proof, Dr. Velasco testified that on the night plaintiff was treated, he was the attending physician on call, and his team treated plaintiff. Dr. Velasco reviewed the emergency room records and stated that "[in] the history taken by one of my residents, he specifically writes down, 'denies any visual or hearing ...

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