Turnbow v. Hayes Freight Lines, Inc.

• Decision Date: 08 October 1957
• Docket Number: No. 57,57
• Citation: 15 Ill.App.2d 57,145 N.E.2d 377
• Parties: , 66 A.L.R.2d 1075 Noble TURNBOW, Plaintiff-Appellee, v. HAYES FREIGHT LINES, Inc., a Corporation, Defendant-Appellant. M 2.
• Court: United States Appellate Court of Illinois

Page 377

145 N.E.2d 377

15 Ill.App.2d 57, 66 A.L.R.2d 1075

Noble TURNBOW, Plaintiff-Appellee, v. HAYES FREIGHT LINES, Inc., a Corporation, Defendant-Appellant.

No. 57 M 2.

Appellate Court of Illinois, Fourth District.

Oct. 8, 1957.

As Amended on Denial of Rehearing Nov. 5, 1957.

Baker, Kagy & Wagner, East St. Louis, Bernard H. Bertrand, East St. Louis, of counsel, for appellant.

Listeman & Bandy, East St. Louis, for appellee.

BARDENS, Justice.

Plaintiff recovered a $65,000 judgment in a jury trial in the Circuit Court of St. Clair County for personal injuries sustained in a collision between plaintiff's truck and a truck tractor leased by defendant and driven by one of its employees. The trial court denied defendant's motion for a directed verdict and for a new trial. The defendant's theory on appeal is that the verdict and judgment are erroneous and against the manifest weight of the evidence because (1) the accident did not arise out of the scope of the employee-driver's employment, and (2) there was a failure of proof on the relationship of the injuries to the accident. Defendant also urges that the trial court erred in denying its motion to require plaintiff to submit himself for physical examination.

Plaintiff, a 41 year old truck farmer, wholesales produce from the market in St. Louis to various cities in Central Illinois. On the night of June 24, 1954, he was driving his panel truck westerly along U. S. Highway 40, a four-lane highway, near the City of East St. Louis, when he collided violently with the right rear of defendant's tractor as defendant's employee attempted to turn left from the westbound inner lane to the eastbound lanes. The testimony of the parties as to how the impact arose is in sharp conflict, but need not be detailed or analyzed because of another feature of the case which we deem to be controlling. Plaintiff was taken by ambulance to the hospital where he remained until the following noon when he returned to his home. The injuries claimed by plaintiff are permanent and progressive damage to the cervical region of the spine and to the central nervous system.

Plaintiff's medical testimony was presented by four doctors. The first, a general practitioner, rendered emergency treatment at the hospital and testified as follows: initial examination revealed numerous abrasions and bruises on the back and head, and tenderness in the neck, spine and back; X-rays showed no fractures or dislocations; examination by manipulation indicated an injury to the spine or muscular strain; the patient was discharged from the hospital twelve hours after his admission on his insistence though he was advised to stay; he was instructed to obtain further medical treatment; the hospital record stated plaintiff might go home if X-rays were negative and that he was 'markedly improved.' The second doctor, likewise a general practitioner, testified that he had treated plaintiff for routine ailments prior to the accident; that upon examination after the accident he prescribed pain pills and suggested a Thomas collar to immobilize the neck, a rib belt because of pain in the chest, and referred him to a neurologist; that his treatment of plaintiff was primarily for his aches and pains and dizzy spells, and that he'd seen him about six times following the accident. The next medical witness was a specialist in nervous and mental diseases who first saw plaintiff eight months after the accident, and concluded there was injury to the nerve supply, the spinal cord and the part of the brain from which these nerve centers originate; that from sensory and reflex tests and X-rays, taken in the course of further examinations, he concluded that plaintiff had a disc injury in the lumbar spine region and epilepsy; that the accident was the direct cause of plaintiff's condition.

The final medical witness, an orthopedic specialist, examined plaintiff eight months after the accident and found no dislocation or fractures; tests of the reflexes indicated soft tissue and nerve injury and plaintiff was therefore referred to the neurologist for examination; subsequent examinations, four in number, indicated plaintiff was steadily worsening and had sustained injury to the central nervous system, the brain, the spinal cord and the nerves running from the nerve roots of the spinal cord; X-rays taken in a recent examination showed a narrowing of some of the apophyseal articulations which indicated less mobility of the bones in the neck; the doctor concluded that such condition 'could and did' result from the accident and that his general condition was permanent and he would be unable 'to do work and hold a job.' The doctor also testified that plaintiff's fits, spells or blackouts or epilepsy are due to an injury to the cortex of the brain. Plaintiff has worn the Thomas collar continuously since it was prescribed shortly after the accident.

Defendant contends that this medical testimony rests largely on speculation and conjecture and that the Court erred in permitting the doctors to state categorically that the accident in their opinion caused the subsequent medical condition; that the jury verdict is grossly excessive when viewed in the light of plaintiff's twelve-hour stay in the hospital and the nature of his subsequent medical care. Defendant also contended in its motion for a new trial that it had newly discovered evidence of plaintiff's condition prior to the accident which would bear on the issue of his present condition; finally, defendant urges that under the recent Supreme Court pronouncement, People ex rel. Noren v. Dempsey, 10 Ill.2d 288, 139 N.E.2d 780, the defendant should have been required to submit himself for a physical examination, as requested by defendant.

In our view, the key question raised is as to the sufficiency of the medical evidence linking plaintiff's condition to the accident. While normally, a matter best left for the jury's determination,...