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12/30/88 William Noel, v. Charlie Jones Et Al.

December 30, 1988

WILLIAM NOEL, PLAINTIFF-APPELLANT

v.

CHARLIE JONES ET AL., DEFENDANTS-APPELLEES (CHARLIE JONES, COUNTERPLAINTIFF-APPELLEE; SAMUEL JOHNSON, JR., ET



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

al., Counterdefendants-Appellees)

532 N.E.2d 1050, 177 Ill. App. 3d 773, 127 Ill. Dec. 221 1988.IL.1952

Appeal from the Circuit Court of Peoria County; the Hon. Richard Eagleton, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Plaintiff brought this action in the circuit court of Peoria County to recover damages for personal injuries he received when the automobile in which he was a passenger collided with a garbage truck. Plaintiff sued the drivers of both vehicles and the owner of the garbage truck. A special interrogatory tendered by plaintiff was refused and the jury rendered a verdict in favor of defendants and against plaintiff. Judgment was entered thereon, and the trial court denied plaintiff's post-trial motion for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, a new trial. Plaintiff appeals and we affirm.

Plaintiff William Noel (Noel) allegedly sustained injuries on August 26, 1983, the cause of which was a collision between a garbage truck and an automobile driven by defendant Charles Jones (Jones) in which Noel was a passenger. The garbage truck is owned by defendant Browning-Ferris Industries of Illinois, Inc. , and was operated by its employee, defendant Samuel Johnson, Jr. (Johnson).

Johnson testified that on August 26, 1983, he backed into the intersection of Barker and Institute Streets in Peoria, Illinois, at the direction of his helper Burt Kancke (Kancke), who was standing on the back step of the truck. Johnson said he backed up about three or four feet into the intersection and stopped when Kancke hollered. The Jones car then sideswiped the stationary truck. Johnson did not see the Jones vehicle until the accident occurred. Johnson indicated the garbage truck can go between two and four miles per hour in reverse gear.

There was no damage to the truck and the damage to the Jones vehicle was a scratch about three feet long. Johnson said Noel asked him for a cigarette after the accident. Noel did not complain or appear injured.

Jones testified he stopped his vehicle at a stop sign at the intersection of Barker and Institute Streets. Noel was sitting in the passenger seat. Jones said he saw a garbage truck turn right at the intersection and stop. The man on the back of the garbage truck (Kancke) motioned for Jones to proceed through the intersection. As the Jones vehicle moved slowly forward, the garbage truck proceeded to back up. Kancke signaled the garbage truck to stop, but the truck continued to back up. Jones testified he proceeded through the intersection slowly at first, but when he saw the truck was not stopping he accelerated and swerved his vehicle in an attempt to avoid a collision. Both vehicles were moving slowly at the time of the impact. Kancke was unavailable to testify, but Jones was allowed to tell the jury that after the accident Kancke said, "I tried to stop the guy, but he wouldn't stop." At the scene of the accident, Noel told Jones he had a "funny feeling" in his neck. Jones sought medical attention for pain in his shoulders and lower back after the accident, but did not report his injuries or Noel's complaint to the police officer on the scene.

Noel testified he was a passenger in the car driven by Jones. He remembered seeing the garbage truck make a right turn onto Barker just before the Jones vehicle stopped at the stop sign. After the car stopped, Noel testified he dropped his cigarette and bent over to pick it up. When he looked up he saw the garbage truck was about to hit Jones' car. The latter vehicle sped up and swerved to the right, and the garbage truck made contact with the car on the driver's side. Noel said he was thrown against the passenger door; however, his treating physician testified he took a history from Noel four days later and Noel indicated the accident caused him to go forward and backward in his seat. Noel said he told Jones his neck and shoulder "felt funny" after the accident, yet Noel did not complain of injury to the investigating police officer or to Johnson.

After the accident, Noel returned to work at a car repair shop where he hand-sanded a car. That night, Noel noticed some pain in his neck and shoulder and sought treatment at a hospital emergency room. X rays were taken and Noel was given a cervical collar and pain medication. The X rays were interpreted as normal.

When his pain did not subside, Noel went to see his lawyer, who referred him to Dr. Daniel Hoffman. Hoffman hospitalized Noel for seven days where he received therapy twice a day for the pain in his neck, shoulder, and lower back. After Noel was released from the hospital, he received further therapeutic treatment from Dr. Sureka at the Institute of Physical Medicine and Rehabilitation . Dr. Hoffman referred Noel to Dr. Sureka for therapy.

Both Drs. Hoffman and Sureka testified they diagnosed Noel as suffering from cervical and right shoulder strain which they believed was caused by the August 26, 1983, automobile accident. The doctors testified Noel was a well-developed, well-nourished young man without any peculiar susceptibility to soft tissue injury.

The medical bills Noel incurred totaled $4,268.38. The doctors indicated the amount charged for their respective services was reasonable and necessary.

Dr. Hoffman testified that between 1984 and 1986 he received 653 referrals from the law firm representing Noel in this case. Hoffman in turn referred 542 of those patients to the IPMR where Dr. Sureka practices.

Dr. Sureka testified his firm received about 300 referrals from Dr. Hoffman in 1983 and 95% of those patients complained of personal injury. A large percentage of those patients were represented by the law firm representing Noel in this case. Dr. Sureka had been receiving a similar volume of referrals from Dr. Hoffman for about four or five years. In every one of the cases referred by Noel's lawyers, Dr. Sureka found the patients needed some kind of treatment related to their traumatic injury. Dr. Sureka testified it has been the practice of IPMR to address the bills of referred clients to the plaintiffs' law firm and to wait for payment until the lawsuit is tried or settled.

Larry Stuart, the operations manager for BFI, testified he was at the scene of the accident shortly after it occurred. Stuart's investigation revealed there was no damage to the truck and the Jones vehicle sustained a "crease . . . the length of the quarter panel, right behind the door, on the left side." Stuart testified as to the BFI procedure for backing up a garbage truck. If two men are on the truck, the man on the ground directs the driver as to when and how to back up. The only view the driver has in his rearview mirror is of the man on the ground.

At the close of the defendants' case, counsel for Noel made a motion for directed verdict on the issue of the liability of all the defendants and requested that the jury decide the issue of damages only. The motion was denied. A special interrogatory tendered by Noel was refused and the jury returned a verdict in favor of the defendants.

In his post-trial motion, Noel asked the court to enter judgment, notwithstanding the verdict of the jury, in favor of him and against one or all of the defendants. In the alternative, Noel requested a new trial on the issue of damages only. The motion was rejected. On appeal, Noel argues (1) the trial court should have granted his request for a directed verdict or judgment n.o.v. and ordered a new trial on the issue of damages only, (2) he is entitled to a new trial because the jury verdict is against the manifest ...


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