Fitzgerald v. City of Chicago

Mr. Presiding Justice Smith delivered the opinion of the court. Appellant contends that the court erred in not excluding the testimony of Dr. Cox introduced by appellee, on the grounds of a variance and incompetency. The record shows that shortly before testifying, Dr. Cox made an examination of appellee for the purpose of qualifying himself to testify in the case as an expert. He was asked to describe to the court and jury what he found from his examination, confining himself to the objective symptoms. He testified that on the sixth and seventh ribs, just back of the posterior axillary line, he found two lumps; that he examined her ankles and knees and shoulders and he found on the right knee a creaking noise on motion, and it was not as limber as the other knee; and that he found the same condition on the left shoulder. Counsel for appellant thereupon moved to strike out the above testimony, on the ground that there was no allegation in the declaration that the knee or ribs were injured. The court denied the motion. We are of opinion that the averments of the declaration are broad enough to make the testimony admissible and that the court did not err in refusing to strike out the testimony. The same witness further testified that he examined appellee’s nerves—the nerves of the eyes, of the skin, of the knees and wrists and elbows; that the nerves of the skin were not active, and did not respond to irritation readily; that the nerves of the eyes were slow in action and the knee jerked and the wrist jerked and the reflex actions were exaggerated, and that the circulation was poor.- He examined the eyes in refence to the action of the pupils, which he found slow and sluggish in their reaction, and that this indicated a sick nerve. This testimony was objected to by appellant on the same ground, and the court overruled the objection. In this ruling we think the court did not err. The declaration after averring certain specific injuries proceeds: “and she thereby then and there suffered divers internal and external injuries, and she thereby also then and there received a serious and permanent shock to her spine and nervous system, and as a direct result and in consequence of said injuries she became and was sick, sore, lame and disordered,” etc. These averments, we think, were sufficient to justify the admission of the evidence objected to, and that there was no variance. The witness stated that the conditions which he found might be produced by an injury, and if they re-suited from an injury suffered November 12, 1904, and if she had been treated by a physician since that date, the conditions which he found were permanent. It is urged that this testimony was improperly admitted because the questions put to the witness did not ask for his opinion as to whether the accident of November 12, 1904, caused the conditions described. We do not think it would have been proper to ask the witness whether in his opinion the accident' of November 12, 1904, caused the conditions. That was a question of fact for the jury. In Chicago Union Traction Co. v. May, 221 Ill. 530, the court say at page 536 of the opinion: “We think it was a correct practice for the court to permit appellee to prove the condition of her health at and prior to the time she was injured, and then to follow up that proof by showing her physical condition from the time of her injury down to the time of the trial, and submit the question of the cause of her then physical condition, as a question of fact to the jury under proper instructions”, etc. We think there is evidence in the record to support the hypothetical questions put to Dr. Cox. We find no objection made, or exception saved on that ground, to the hypothetical questions put to Dr. Cox, and hence there is no such question on his testimony for this, court to review. We find no reversible error in refusing to permit Koehler, Jr., to testify as to whether there was any beaten path leading onto or off the sidewalk in question at either end of it, or in refusing to permit the witness Fox to testify whether or not Sixty-eighth street or the sidewalk in question was the usual way of travel out to Stony Island avenue from the pipe yard and waterworks. This evidence would in nowise aid the jury to decide whether appellee was in the exercise of due care under the circumstances immediately before and at the time of the accident. The court gave what is known as the eighth instruction requested by appellee upon the measure of damages. This instruction, after enumerating several elements of damages which the jury should take into consideration, proceeds as follows: “all monies necessarily expended or become liable for doctor’s bills, if any, while being treated for such injuries which the jury may believe from the evidence she has expended or become liable for, if any”, etc. It is contended that there is no evidence upon which to base the instruction. Dr. Small testified that he made eight or ten visits to appellee, and she was in his office four or five times, and it may have been more than that; and that he charged her two dollars a visit; that he rendered her a bill for these services and she paid him for his services. We think this evidence afforded a sufficient basis for that part of the instruction. It is further urged that there is no evidence of any “loss of time and inability to work and transact business”, which the instruction directed the jury to consider. Appellee testified that since the accident she has been unable to do any baking, cooking, washing or scrubbing. Dr. Small testified that appellee was confined to her room with pleurisy for several weeks. The evidence tends to show that some of the injuries complained of are permanent. We think the evidence was sufficient in this particular for the jury to consider, and afforded a sufficient basis for the instruction. The record discloses no substantial defense to the action. But, upon a consideration of the injuries shown and their extent, we are of the opinion that the verdict and judgment of $2,500 is excessive. In our opinion the evidence justifies a recovery for $1,500, but not more than that amount. If, therefore, appellee shall remit from said judgment one thousand dollars and file such remittitur in writing in this court within ten days, the judgment may be affirmed, but otherwise it will be reversed and the cause remanded. Affirmed on remittitur, otherwise reversed. Remittitur filed and judgment affirmed.