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08/17/88 Keith Schmudde Et Al., v. Keith Schmudde Et Al.

August 17, 1988

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION VERNON SINGER, PLAINTIFF-APPELLANT

v.

KEITH SCHMUDDE ET AL., DEFENDANTS-APPELLEES



528 N.E.2d 234, 174 Ill. App. 3d 253, 123 Ill. Dec. 689 1988.IL.1263

Appeal from the Circuit Court of Cook County; the Hon. Daniel J. White, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Vernon Singer brought this action against defendants, Keith Schmudde and Julie Moisant, for personal injuries arising out of an automobile collision. A jury returned a verdict in favor of defendants, and the trial court entered judgment on the verdict. On appeal, plaintiff argues that the trial court should have directed a verdict for him based on a finding that defendants were negligent as a matter of law. Plaintiff further argues that the verdict of the jury is against the manifest weight of the evidence and that the court improperly allowed certain prejudicial testimony to be introduced.

The jury heard the following evidence. On October 2, 1980, at about 11:20 p.m., plaintiff was driving south on Roberts Road, a fourlane road with two traffic lanes in each direction separated by a center median, when he came upon an automobile, without lights, stalled in the left passing lane. Plaintiff applied the brakes to avoid an accident, but collided with the rear of the disabled car. The stalled automobile was owned by Moisant and was being driving by Schmudde. Schmudde had been working on the car since approximately 7:30 that evening and had replaced the alternator. It was later discovered that there was a short in the wire leading to the alternator, which caused the car to stall and extinguished all the lights. At the time the car stalled, Schmudde was attempting to drive it to a gas station for further service. The car had stalled on the road once before on the way to the gas station.

A friend of Schmudde's was following him to the gas station in a separate vehicle. When defendants' car stalled, Schmudde's friend drove around the car and pulled up with the front of his car facing the stalled car and was attempting to jump start the car. The lights of this other car silhouetted defendants' car. Schmudde testified that prior to the accident, he walked north on Roberts Road from the rear of the car to warn oncoming traffic of the danger. He waived several cars around the stalled car. Schmudde walked back to his car when he did not see any more cars coming.

The police arrived after the accident, and Officer Michael Tardi interviewed both drivers. Schmudde stated he was stalled in the left lane without lights due to an electrical failure. Officer Tardi said that the lighting in the area was minimal. There was a street light approximately 150 feet north of the accident scene. Defendants' car was stopped just beyond the light cast from the street light. The posted speed limit was 35 miles per hour. Plaintiff testified that he was traveling about 30 to 35 miles per hour. There was a crest in the road about a half block north of the accident site and a driver north of the crest would not see a vehicle stopped at the site of the accident.

The police officer testified that the property damage was over $200 for each vehicle. After his investigation, the officer followed plaintiff home, because although his car was drivable, his headlights were out. Plaintiff told the officer he was not injured.

Plaintiff testified that his head, neck, shoulders and back hurt immediately after the accident. He did not report this to the officer because he was dazed and shook up. Plaintiff saw a doctor the day following the accident. The doctor found that plaintiff's head was swollen, he had a hematoma to both eyelids, tenderness, muscle spasm and limitation of movement to both the cervical and the lumbar spine. Following a week in the hospital, plaintiff was diagnosed as having a strain of the spine, narrowing of the disc spaces, and a brain concussion.

Plaintiff was off work as a garbage truck driver from the time of the accident until his doctor released him on December 17, 1980. Upon returning to work, plaintiff was able to drive the truck, although his back hurt by the end of the day. He wore a cervical collar and a back corset. His wife often had to help him with his shoes and he was not able to work around the house.

In September 1981, plaintiff was reassigned to residential pickup, which involved constant lifting of garbage cans. After one week, plaintiff became totally incapacitated for work. He spent 14 days in the hospital and was diagnosed as having damage to the articulating joints between the spinal column vertebra. This condition is difficult to treat, permanent, and may be disabling.

Plaintiff has not worked since September 28, 1981. Two doctors testified that his present condition was related to the auto accident. Plaintiff was unable to retrain himself for other work due to his inability to sit for extended periods.

The jury found against plaintiff and for defendants in plaintiff's negligence action. The jury also found for Moisant on her counterclaim for property damage against plaintiff. On plaintiff's post-trial motion, the trial court entered judgment on the verdict on ...


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