House v. Stocker, No. 74--86

• Court: United States Appellate Court of Illinois
• Writing for the Court: BARRY
• Citation: 34 Ill.App.3d 740,340 N.E.2d 563
• Docket Number: No. 74--86
• Decision Date: 31 December 1975
• Parties: Rufus HOUSE, Plaintiff-Appellee, v. Sylvia STOCKER, Defendant-Appellant, Harold Brown et al., Defendants.

Page 563

340 N.E.2d 563 34 Ill.App.3d 740 Rufus HOUSE, Plaintiff-Appellee,
v.
Sylvia STOCKER, Defendant-Appellant,
Harold Brown et al., Defendants. No. 74--86. Appellate Court of Illinois, Third District. Dec. 31, 1975.

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[34 Ill.App.3d 741] Harry D. Leinenweber, counsel, Dunn, Stefanich, McGarry & Kennedy, Ltd., Joliet, for defendant-appellant.

E. Kent Ayers, counsel, Murphy, Timm, Lennon & Spesia, Joliet, for plaintiff-appellee.

BARRY, Justice:

On January 28, 1968, plaintiff was doing his family laundry as a customer at the laundromat at Cass Street in Joliet. The

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westerly wall of the laundromat room was made largely of glass and overlooked an adjacent [34 Ill.App.3d 742] outside parking lot. While waiting for his laundry to finish, plaintiff sat in a chair inside the laundromat along the westerly glass wall facing eastward into the room. As defendant, Sylvia Stocker, was driving her automobile into the parking lot, her foot slipped from the brake to the accelerator causing the vehicle to drive over a parking bumper and through the glass window, striking and injuring plaintiff. At the close of all the evidence, the court directed a verdict in favor of all the defendants except Sylvia Stocker; the court then directed a verdict for plaintiff against defendant Sylvia Stocker and thereafter entered judgment on the jury's assessment of damages at $157,500. Defendant Stocker's post trial motion was denied. On appeal, defendant Stocker claims that the court erred in directing a verdict and that the damages allowed are, in any event, excessive.

There is no dispute about how the accident happened. Defendant argues, however, that her foot 'slipping off the brake' and onto the accelerator should not be characterized as negligence per se, and that the court erred in withdrawing from the jury the issue of whether such conduct was negligence. When plaintiff proved that defendant drove her automobile through the window of the laundromat and struck him, the duty shifted to defendant to show that it was there for some reason other than her own negligence. Sughero v. Jewel Tea Co., 37 Ill.2d 240, 226 N.E.2d 28 (1967); Murphy v. Kumler, 344 Ill.App. 287, 100 N.E.2d 660 (3d Dist., 1951). Where an injury is shown to have been produced by an instrumentality which in the ordinary course of events would cause no such harm if those who have management of it used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. The presumption is not proof and will yield to contrary proof, but we agree that defendant's explanation here that it occurred because she did not have control and because her foot slipped, does not overcome the presumption, and that the circuit court, under the Pedrick rule (Pedrick v. Peoria & Eastern R. Co.,37 Ill.2d 494, 229 N.E.2d 504 (1967)), correctly directed a verdict for plaintiff.

At the time of the accident, plaintiff was 37 years of age, married and the father of several children. He had completed about two-thirds of his college work by May, 1953 when he was called for military service. He had been prominent in college as an athlete. After completing military service, he attended vocational high school to learn bricklaying, and thereafter became and has been a professional bricklayer in the Joliet area since 1963. Before the accident he was in good health, and allowing for weather conditions, worked for union wages an average of nine months of every year getting two to four hours per week overtime. At the time of trial his life expectancy was 25.9 years.

[34 Ill.App.3d 743] Plaintiff testified that while he was sitting in the chair at the laundromat on the morning of the accident, everything suddenly 'went out.' When he came to his senses, he found himself stretched out on the floor under a clutter of shattered glass. He had no memory of seeing defendant's automobile but did remember that he tried to get up from the floor but couldn't, there being no strength in his legs. He felt sharp pains in his lower back, in both elbows and in his left knee. He was taken to Silver Cross Hospital immediately and after about an hour there was taken to his home where he was confined to bed for two weeks, being virtually unable, said he, to move any part of his body. The next day, however, he did see Dr. Wilson, the family physician and was referred by him to Dr. Rentschler, an orthopedist who has treated him ever since. The elbow pain left shortly, but about six to eight weeks after the accident, plaintiff's right knee began to cause discomfort.

On April 10, 1968, plaintiff returned to work as a bricklayer on Dr. Rentschler's

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orders and continued until October 4, 1971. During that time he was not able to do more than half his usual work, according to his testimony. He terminated further efforts at this work on October 4 because it was too strenuous and aggravated his pain in the back and right knee. These pains became sharp and intense and caused vomiting. The work involved considerable lifting and bending in the handling of bricks weighing 3 1/2 to 8 pounds and concrete blocks of 90 pounds. After terminating further efforts at bricklaying, he drove a cab for about a month but found continuous driving 8 or 9 hours a day a cause of discomfort to his knee, and on the advice of Dr. Drentschler, that he should develop another skill, he returned to Lewis College in 1972 as a full time student for a degree in sociology. He was, therefore, not employed during 1972 and 1973 and at the time of trial in March, 1973, contemplated receiving a bachelor's degree the following May, and to pursue employment as a social worker. On an occasion in January, 1973 when he was trying to change a tire, and had been bending over for a while, he found it difficult to straighten up, and continuously from then until trial time, had found the use of a cane helpful for his knee and back. His earnings in 1967 were $9100; in 1968, $9595; in 1969, $11002.02; in 1970, $11,150.15; in 1971, $8651. Plaintiff's total medical expense was $995.80.

Frederick Schwartz, president and business agent for the bricklayer's union, Local No. 14, testified for plaintiff as to prevailing gross union wage rates in eight north-western Illinois' counties for the years 1967 through 1972, and that they averaged about $9.87 per hour for 1972. In Will and Grundy Counties the rate for hours in excess of 40 per week is doubled; in the other counties the overtime rate is time and one-half.

Eugene Duff, professor of Economics at St. Francis College, testified [34 Ill.App.3d 744] that the entry wage rate for persons entering social work with a bachelor's degree is approximately $8000 annually. He also testified that the Illinois Department of Public Aid has five grades of social workers, and that those who qualify can move to the top rate of $1550 per month although promotions would be slow without a master's degree. He indicated, however, that by executive order, preference in hiring is given to members of the negro race like plaintiff, and that today's economy does have a demand for negro men with college education, and that it is possible to earn a graduate degree entirely by night schooling.

Dr. Rentschler testified that he first saw plaintiff on January 30, 1968 when plaintiff was complaining of severe pain in any position and that it was aggravated by any walking, sitting, laying or bending but felt some better with heat. Plaintiff indicated to the doctor that the pain began in the area of his back and radiated into both lower extremities, greater in the left than in the right. The doctor diagnosed severe back contusion in the lumbar region with sprain and spasms, and contusion to both knees. The sprain refers to a ligamentous injury.

Examination of the nerves of the lower extremities by reflection sensation and muscle power showed them intact. Dr. Rentschler prescribed a back brace to be worn whenever symptoms are present and recommended use of a bedboard. Within time, said the doctor, stability of the lumbar area can be regained by formation of scar tissue. In his last examination of plaintiff in 1973, there was some improvement noticed but the patient still complained of spasms in the lower lumbar area and tenderness in the knee. 'The direct blow into the lumbar region has scarred down well,' said the doctor, and 'I don't believe it will give him difficulty.' With respect to the right knee, the diagnosis was chondromalacosis patella which the doctor said means that the cartilage on the underside of the patella is no longer of normal quantity and is highly suggestive of a cartilage tear. An arthrogram was negative, however, but the doctor

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was of the opinion that that test is not conclusive. He also stated that he felt the knee has not given plaintiff sufficient trouble to justify surgery at this point although that might become necessary in the future. He considered plaintiff's condition as of the time of the last examination in 1973 to be permanent, and foresaw no possibility that plaintiff would be able to resume any occupation involving climbing, bending, lifting, crawling or...