Lauth v. Chicago Union Traction Co.

• Decision Date: 06 April 1910
• Citation: 244 Ill. 244,91 N.E. 431
• Parties: LAUTH v. CHICAGO UNION TRACTION CO.
• Court: Illinois Supreme Court

244 Ill. 244

91 N.E. 431

LAUTH

v.CHICAGO UNION TRACTION CO.

Supreme Court of Illinois.

Feb. 16, 1910.

Rehearing Denied April 6, 1910.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Albert C. Barnes, Judge.

Action by Adam Lauth against the Chicago Union Traction Company. A judgment for plaintiff was affirmed by the Appellate Court (146 Ill. App. 584), and defendant appeals. Reversed.John A. Rose and Frank L. Kriete (W. W. Gurley, of counsel), for appellant.

Harvey E. Wynekoop and Joel Baker, for appellee.

COOKE, J.

On the morning of August 28, 1900, a street car owned and operated by the Chicago Union Traction Company, the appellant, collided, on Lake street, in the city of Chicago, with a surrey in which Adam Lauth, the appellee, was riding, whereby he was thrown to the street and injured. He brought an action of trespass on the case in the superior court of Cook county to recover damages for the injuries thus sustained. A trial was had before a jury, which resulted in a verdict for the plaintiff for $15,000, and judgment was entered for that amount. The traction company prosecuted an appeal to the Appellate Court for the First District. The appeal was heard in the branch court, and, after requiring appellee to remit $5,000, that court affirmed the judgment of the superior court for $10,000. The traction company prosecuted a further appeal to this court, and upon a hearing here the judgments of the Appellate and superior courts were reversed and the cause was remanded to the superior court. Chicago Union Traction Co. v. Lauth, 216 Ill. 176, 74 N. E. 738. A second trial was had in the superior court before a jury, which resulted in a verdict finding defendant guilty and assessing plaintiff's damages at $20,000. The trial court required appellee to remit $7,500, and, after overruling appellant's motions for a new trial and in arrest of judgment, entered judgment on the verdict for $12,500. The traction company prosecuted an appeal from this second judgment of the superior court to the Appellate Court for the First District. The judgment of the superior court was there affirmed, and appellant has prosecuted a further appeal to this court.

Inasmuch as the alleged errors relied upon by appellant for reversal upon this appeal could not have contributed to the finding of the jury that appellant was guilty of the negligence charged against it, or that appellee was in the exercise of due care at the time he was injured, but could only have affected the amount of damages awarded to appellee by the verdict of the jury, the opinion of this court rendered upon the former appeal of this cause sufficiently shows the manner in which the injuries were occasioned for a proper consideration of the questions presented upon this appeal.

As bearing upon the question of damages, appellee introduced evidence which tended to show that he sustained a fracture of the fibula of the left leg and an injury to the knee which developed into a chronic synovitis of the left kneejoint and a stiffness and limitation of motion in that joint, and which has ever since, at frequent intervals, caused him great pain; that as a result of an injury to the right groin sustained at the same time, a complete inguinal hernia developed in that groin within three or four days after the accident, which has on several occasions become strangulated; and that other ailments, including constipation, indigestion, insomnia, neurasthenia, cerebrasthenia and incipient dementia, and a complete inguinal hernia in the left groin, have followed, all resulting from the injuries received on August 28, 1900. The hernia in the left groin developed four or five years after the accident.

Appellant introduced the testimony of medical experts tending to show that a complete inguinal hernia could not be produced in three or four days; that therefore the hernia in the right groin could not have resulted from or been occasioned by the accident in question; that it required months for a complete inguinal hernia to develop; that the discovery of a complete hernia within three or four days after the injury showed that it had existed prior to the accident; and that the hernia in the left groin did not result from the injuries received. The testimony of appellant's expert witnesses also tended to show that the synovitis and stiffness of the left kneejoint could be cured by proper treatment without resort to a surgical operation.

Appellee introduced evidence that prior to the time of the accident he was a strong, healthy, robust man; that he took an active part in athletics; that he was not nervous or excitable, had a good memory, talked intelligently and collectedly, could concentrate his mind upon a subject and converse for hours at a time upon a single topic, and applied himself industriously to his business affairs; that since receiving his injuries there has been a radical change in him; that he appears to be sick and lame, walks with a limp, using a cane for support, and frequently appears to suffer great pain; that his face appears at times flushed, at other times pale; that his eyes frequently twitch and his face appears drawn; that he is irritable and excitable; that at times he is in exuberant spirits and at other times he is despondent and melancholy; that he will not sit still in one place very long, and is fidgety and always moving around; that when he starts to read an article in a newspaper he throws the paper down before finishing the article; that he appears to be very nervous and his memory has become poor; that at times he is taciturn, at other times voluble in his talk; that he is at times very effusive in greeting his acquaintances, at other times the reverse; that his conversation is often disconnected; that he will often talk upon several subjects at once, and during the course of a conversation changes the topic very often; that he lacks the power of continuity, and does not appear to be able to concentrate his mind upon any subject or pursue any line of investigation requiring mental exertion. These observations were made by relatives and acquaintances of appellee who were called as witnesses in his behalf, and who frequently had social and business relations with him, both before and after the accident.

Appellee testified in his own behalf, and recounted with minute detail all that occurred on the day of the accident, from the time he left home in the morning until he was taken back in his injured condition. He testified fully and intelligently as to events occurring from that time until the time of the last trial, covering a period of almost seven years. He gave his business as that of an adjuster of personal injury claims. At the time of the trial he was maintaining an office and had maintained one continuously since the year 1899. In the prosecution of his business he interviewed persons who had sustained personal injuries and solicited them to contract with him to settle or prosecute their claims. He then employed attorneys, interviewed witnesses, watched the calendars of the various courts in which he had cases pending, attended the trials and actively assisted his attorneys, and, in general, had charge of all these cases, whether the same were settled or tried. He testified that at the time of the last trial he had 30 or 40, or probably more, such personal injury cases pending in the various courts of Cook county, and that he was giving the same his personal, active attention. His own testimony tends strongly to show that neither his mental nor physical activities have been seriously impaired.

Appellant first contends that the evidence in regard to the mainfestations of the appellee's nervous and mental ailments should not have been admitted, for the reason that such manifestations were purely subjective and wholly within the power of appellee to simulate, and urges that the business in which he was engaged was such as to discredit him. The theory of appellee is that his alleged nervous and mental condition was the direct result of the injury. After developing the facts by the testimony of nonexpert witnesses, medical witnesses were called, and in response to hypothetical questions based on these facts and the extent of the...