Olson v. Chicago Transit Authority

• Decision Date: 04 February 1952
• Docket Number: Gen. No. 45458
• Citation: 104 N.E.2d 542,346 Ill.App. 47
• Parties: OLSON v. CHICAGO TRANSIT AUTHORITY.
• Court: United States Appellate Court of Illinois

Page 542

104 N.E.2d 542

346 Ill.App. 47

OLSON v. CHICAGO TRANSIT AUTHORITY.

Gen. No. 45458.

Appellate Court of Illinois, First District, First Division.

Feb. 4, 1952.

Rehearing Denied March 25, 1952.

Thomas C. Strachan, Jr., James O. Dwight, Fred J. O'Connor, Arthur J. Donovan, Chicago, James E. Hastings, Chicago, of counsel, for appellant.

James A. Dooley, Chicago, for appellee.

BURKE, Presiding Justice.

Carol Ann Olson, a minor, by her next friend, filed an amended complaint in the Superior Court of Cook County against the trustees of the corporations operating as Chicago Surface Lines, charging that on May 12, 1943, at Chicago, she was seriously and permanently injured because of the negligence of the defendants, by their servants, in the operation of a streetcar. Issue was joined. A trial resulted in a verdict in favor of plaintiff for $75,000. Motions for a new trial and for judgment notwithstanding the verdict were denied and judgment was entered on the verdict. Chicago Transit Authority, which assumed the liability of Chicago Surface Lines, defended the case in the trial court and appeals. On the trial defendant contested its liability and the damages. In this court it concedes that the motorman's negligence was properly a question of fact for the jury and does not argue the question of liability. Plaintiff's theory is that defendant's negligence was the proximate cause of her condition of ill- being. Defendant's theory is that the damages awarded are grossly excessive, that the verdict included damages for an operation performed solely to correct a congenital condition, that this special damage claim was not alleged in the complaint, that there can be no recovery for aggravation of a congenital condition because such special damage was not alleged in the complaint, and that the court erred in excluding certain expert medical testimony.

Carol Ann Olson, the plaintiff, was born on December 11, 1938. Her father operated a blind and shade business at 4416 North Clark Street, a highway running in a northerly and southerly direction and on which defendant's predecessor operated streetcars. On May 12, 1943, at about 5:20 P.M., plaintiff, who attended a nursery school, was being returned to her parents at the store. She was in a station wagon facing in a southerly direction on Clark Street in front of the store. A southbound streetcar struck the station wagon from behind while she was in the act of alighting. She was thrown into the air and onto the pavement. Her father, who was looking out of the store window, ran out, picked her up and brought her into the store. She was unconscious, which condition lasted from 15 to 20 minutes. Plaintiff's mother who was in the store said that Carol Ann had a swelling the size of an egg on the right frontal area above the eye. It was turning color but there was no outside bleeding. There was a similar swelling on the back or occipital region of the head. The police came shortly after the occurrence and took plaintiff to the America Hospital. She remained there two or two and a half hours. While in the hospital she was lying down and technicians took X-rays. When plaintiff and her parents got home they called their family physician, Dr. Robert Johanson, who was affiliated with the Presbyterian Hospital. At his request the child was taken to that hospital for further X-rays of the cranium. The results of these X-rays were not disclosed. It can be assumed that they were negative.

The amount of the verdict indicates that the jury believed that the negligent operation of the streetcar caused the convulsive seizures which began about 10 1/2 months after the occurrence. Defendant, in arguing that the damages awarded are excessive, states that the evidence was insufficient to establish a causal connection between the occurrence and the convulsions. On oral argument cousel for defendant stated that should there be a retrial, plaintiff would be entitled to damages for the injuries naturally resulting from the impact. Plaintiff insists that the causal relationship between the injury and the subsequent ill-being was 'properly demonstrated.' There is therefore presented the question as to whether the amount of damages awarded by the verdict is against the manifest weight of the evidence. Plaintiff was born with a nevus, commonly called a birthmark, on her face. A similar condition was found on the covering and the surface of the brain. A nevus is congenital and is described as a vascular tumor. Dr. Joseph Giannola said: 'A vasular pertains to the blood vessels. Congenital means they are born with it. It is a tumor, not a blood clot. The blood vessels grow out of proportion. In other words, they grow like wild fire.' Evidence was introduced by plaintiff that prior to the occurrence she had not been injured in any way, had not lost consciousness, suffered from convulsions or complained of head pains. Dr. Natalie Ashmenchas, called by defendant, testified that she operated on plaintiff in 1942 at the Augustana Hospital, releasing the tongue tie and also performed a tonsillectomy and adenoidectomy. Defendant does not contend that these operations had any connection with the convulsions. Persons who knew plaintiff testified that except for the birthmark, they observed nothing abnormal about her before the occurrence.

Following the occurrence plaintiff continued under Dr. Johanson's care. She complained of severe pains over the right eye. She was irritable and nervous. She was given sedatives and ice packs were placed on her head. The summer following the occurrence she spent about one-half of each day in bed. Hermine Steavenhangen, called by plaintiff, testified on cross-examination that she saw plaintiff during the summer of 1943 (following the accident in May, 1943) at a summer home occupied by plaintiff's family at Twin Lakes, Wisconsin, and that plaintiff was playing normally with other children on numerous occasions. In September, following the occurrence, plaintiff attended a kindergarten school. Mrs. Olson testified that her daughter would be brought home from school by the principal because of head pains. She would be taken to Dr. Johanson when the pain became too severe. On March 27, 1944, about 10 1/2 months after the occurrence and while under the care of Dr. Johanson, she had a pain in the ear and head and began to convulse, with twitching starting on the left side. She finally went into unconsciousness and was taken to the Presbyterian Hospital in an ambulance. During this trip she had six or seven convulsions, and she remained at the hospital about 10 days. Dr. Mary E. Kostalek, a physician, admitted plaintiff to the hospital and testified that plaintiff was in a convulsive state, with chronic twitchings of the arms and legs; that she was shaking all over; that witness gave her 'a thousand cc's of intravenous glucose' and other medicine including a sedative; that she again saw plaintiff at nine o'clock the following morning; that plaintiff was no longer twitching or shaking; that plaintiff was awake and very irritable; and that she saw her again at noon, when the child was screaming and restless. At that time witness was on the service of Dr. A. H. Parmalee, and explained that the phrase 'on someone's service' means that at that time she is taking care of the patients of a given doctor when he is not there. She said that at the time of the trial Dr. Parmalee was in California and Dr. Johanson was practicing medicine in Pasadena, California.

Plaintiff used to scream at night after the first convulsion. Beginning with the convulsions in March, 1944, until the following January, she had six or eight seizures. When she would go into a convulsion her eyes would focus and she would froth at the mouth. After a minute or two she would relax and go to sleep for about a half hour. On July 13, 1944, she had a severe seizure which lasted 2 1/2 to 3 hours. At that time she was frothing at the mouth, biting her tongue and unconscious. She was taken to the Presbyterian Hospital in an ambulance, where she was confined 3 days. In September, 1944, she returned to school. The principal testified that it was necessary that she be sent home because of her physical condition. His attention was first called to the child by her frequent absences from school. She did not play with the other children nor did she play as the other children did, but sought the companionship of older children. She complained to her teacher about headaches. Once or twice a week a teacher called plaintiff's mother to come and take her home. This teacher testified that plaintiff's grades were low and that she spent more than one year in second grade. When plaintiff came home her mother would give her phenobarbital and sometimes the child would go into a convulsion and doze off afterwards. Between July, 1944, and January 20, 1945, the child had 6 or 8 attacks, when she lost consciousness from 1 to 2 minutes, following which she would sleep about a half hour in an apparently exhausted state. On January 20, 1945, she had a series of convulsions and was rushed to the Presbyterian Hospital in an ambulance. The convulsions were described as 6 or 7 series before she arrived at the hospital. Upon arrival at the hospital she was again seen by Dr. Mary Kostalek, who found her apparently unconscious and having constant right side twitching. While she was in the hospital a ventriculogram was made by Dr. Adrian Verbrugghen. He is a well known neurological surgeon and admittedly one of the leaders in that field. A ventriculogram is an X-ray taken to visualize the ventricles in the brain to find out if they are distorted by tumors or other lesions. The ventricles are cavities in the brain and contain a cerebrospinal fluid which is also found in the canal of the spinal cord. There are lateral and vertical ventricles. Dr. Verbrugghen said that in making a ventriculogram the child 'was put to sleep'; that he made two very...