Duncan v. Peoria Yellow Checker Cab Corp.

• Decision Date: 10 February 1977
• Docket Number: No. 76--168,76--168
• Citation: 359 N.E.2d 1242,45 Ill.App.3d 653,4 Ill.Dec. 290
• Parties: , 4 Ill.Dec. 290 Louise DUNCAN, Plaintiff-Appellant, v. PEORIA YELLOW CHECKER CAB CORP. et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1242

359 N.E.2d 1242

45 Ill.App.3d 653, 4 Ill.Dec. 290

Louise DUNCAN, Plaintiff-Appellant, v. PEORIA YELLOW CHECKER CAB CORP. et al., Defendants-Appellees.

No. 76--168.

Appellate Court of Illinois, Third District.

Feb. 10, 1977.

Robert L. Silberstein, Peoria, for plaintiff-appellant; Emmett W. Lally, Peoria, of counsel.

Klockaw, McCarthy, Lousberg, Ellison & Rinden, Rock Island, for defendants-appellees; Garry M. Rinden, Rock Island, of counsel.

STENGEL, Justice.

Plaintiff Louise Duncan was injured when her car collided with a taxicab owned by Peoria Yellow Checker Cab Corporation and driven by Donald R. Matson. Plaintiff brought a personal injury action against defendants, and at the conclusion of the trial, the jury returned a verdict awarding her $750 damages. The trial court denied plaintiff's motion for a new trial, and she appeals that ruling. The sole issue is whether the damages awarded by the jury were inadequate.

According to the evidence, plaintiff's car and the defendants' taxicab collided in an intersection which was regulated by a 'yield' sign for northbound traffic in the direction that the cab was traveling. Following the collision, plaintiff admitted to the investigating officer that she had not observed defendants' cab until the moment of impact. The defendants contend that the verdict was obviously a compromise on the issue of liability.

Plaintiff was hospitalized for 14 days after the accident and was treated for a softtissue back injury. Dr. R. J. Bickerman, the treating physician, testified that her complaints were primarily subjective except for indications of muscle spasm. After treatment including traction and physical therapy, plaintiff's condition improved and she was released. No medication was prescribed, and no restrictions were imposed upon her activities.

One week later plaintiff was again hospitalized, this time by her family physician, Dr. Maude Sanders, who, based upon plaintiff's report of pain and discomfort, diagnosed her condition as cervical lumbosacral muscle strain. Dr. Sanders testified that in her opinion plaintiff has a permanent disability. Dr. Sanders referred plaintiff to the Institute of Physical Medicine and Rehabilitation for physical therapy. On cross-examination, Dr. Sanders admitted that she had received a report from Dr. Stephen Jarrett of the Institute indicating that plaintiff was uncooperative and very emotional during his examination. Dr. Jarrett found that plaintiff had a normal range of movement of the head, neck, upper and lower extremities, and that she had no trouble ambulating. Dr. Jarrett concluded that plaintiff had 'possible cervical and lumbar strains with severe emotional overlay' but he could find no objective indications of anything severely wrong. After eight days plaintiff was discharged from the hospital by Dr. Sanders and returned to work in the outpatient surgery department at St. Francis Hospital. Both plaintiff and her husband testified at length as to her inability to perform certain physical tasks since the accident.

At trial plaintiff introduced evidence of her medical expenses totaling $2,462, of which $1,443 were attributable to her first hospitalization and $1,019 of which were related to her second hospital stay. In addition, she claimed $446 lost wages as a result of her inability to work while hospitalized. Plaintiff also sought additional damages for permanent disability. Defendants did not question the reasonableness of the medical expenses or the amount of lost wages.

It is the law in Illinois that a verdict should be set aside and a new trial granted for inadequacy of damages where it is clear that injustice has been done, or where it is obvious that a jury failed to take into consideration proper elements of damage which are clearly proven, or where it is apparent that the jury made a compromise between the guilt of the defendant and the damages sustained by a plaintiff. Montgomery v. Simon (1st Dist. 1941), 309 Ill.App. 516, 33 N.E.2d 642; 28 Ill.L. & Prac. New Trial § 29 (1957).

Generally the question of damages is peculiarly one of fact for the jury, and courts are reluctant to interfere with the jury's exercise of its discretion. (Flynn v. Vancil (1968), 41 Ill.2d 236, 242 N.E.2d 237.) In First National Bank of Elgin v. Szwankowski (2d Dist. 1969), 109 Ill.App.2d 268, 248 N.E.2d 517, the reviewing court held an award of $20,000 to be inadequate where the award was less than plaintiff's out-of-pocket medical expenses and lost wages. The court said:

'Ordinarily, a court will not interfere with the discretion of the jury in its assessment of damages except where the award is palpably inadequate or it is clear that a proven element of damages has been ignored (citation),...