{
  "id": 1585441,
  "name": "Mary Crown, Plaintiff-Appellee, v. Village of Elmwood Park, a Municipal Corporation, Defendant-Appellant",
  "name_abbreviation": "Crown v. Village of Elmwood Park",
  "decision_date": "1969-12-24",
  "docket_number": "Gen. No. 52,959",
  "first_page": "278",
  "last_page": "284",
  "citations": [
    {
      "type": "official",
      "cite": "118 Ill. App. 2d 278"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "188 NE2d 337",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "39 Ill App2d 315",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        2455004
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/39/0315-01"
      ]
    },
    {
      "cite": "229 NE2d 504",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "37 Ill2d 494",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2866138
      ],
      "pin_cites": [
        {
          "page": "510"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/37/0494-01"
      ]
    },
    {
      "cite": "136 NE2d 777",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "9 Ill2d 122",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        5321120
      ],
      "pin_cites": [
        {
          "page": "127"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/9/0122-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 593,
    "char_count": 9386,
    "ocr_confidence": 0.616,
    "pagerank": {
      "raw": 7.749067336139133e-08,
      "percentile": 0.45564432520969367
    },
    "sha256": "9c10c5d37484bee999df53e3526e907efdfaecb180ab76dfac9e7185524210eb",
    "simhash": "1:fd6f9941d85dce0a",
    "word_count": 1576
  },
  "last_updated": "2023-07-14T22:40:02.100969+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Mary Crown, Plaintiff-Appellee, v. Village of Elmwood Park, a Municipal Corporation, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nThis is an appeal from a $36,500 judgment in favor of plaintiff for personal injuries sustained when she fell while walking on a sidewalk in the defendant Village.\nDefendant raises three issues on appeal: (1) Plaintiff was guilty of contributory negligence as a matter of law; (2) the trial court erred when it denied defendant\u2019s motion asking that plaintiff be required to submit to a physical examination by a doctor of defendant\u2019s choice; and (3) the amount of the judgment was excessive.\nTestimony as to the occurrence itself is not in dispute. Plaintiff testified that, on the evening of August 23, 1964, on her way home from work, she alighted from a bus at Harlem and Diversey. She then walked west on the south side of Diversey. \u201cIt was dark. The street lights were lit. They are up quite a distance, but it was light.\u201d She was taking a step when she was startled by a dog barking, and, as she turned slightly, the heel of her shoe caught on a place in the sidewalk where one part was higher than the other. Beginning to fall, she tried to gain her balance, staggered \u201cbecause it was steep,\u201d and fell, landing in the street on her stomach.\nPlaintiff further testified that she had terrific pain down her whole left side as she was lying in the street. She suffered bruises on her stomach, face, arms, and knees. Her left leg was broken and she remained in the hospital for three weeks with her leg in a cast.\nPlaintiff was 54 years old at the time she suffered the injury, and had lived in the Village since 1941. She testified that she had taken this same route maybe ten or fifteen times before and had noticed the particular sidewalk recess in question.\nOne other occurrence witness testified. He was walking east on the south side of Diversey approaching plaintiff when he heard a scraping sound, like metal on cement. He saw plaintiff trip on the sidewalk and stumble. She tried to catch her balance, but fell in the street, landing about four or five feet from the curb. He ran up to her. She appeared to be in pain and he could see that her leg was broken. After getting help from a passing motorist, he examined the sidewalk and noticed that a large slab in the sidewalk \u201chad sunken\u201d about two inches from the normal level of the rest of the walk.\nDefendant contends that the facts show plaintiff guilty of contributory negligence as a matter of law because (1) she failed to keep a proper lookout for her own safety when approaching a known defect in the sidewalk, and (2) she continued to walk forward even though she turned her head toward a distraction.\nOne who knowingly uses a defective sidewalk is not guilty of contributory negligence per se; and if such person is in the exercise of ordinary care, there may be a recovery in case of injury. Swenson v. City of Rockford, 9 Ill2d 122, at 127, 136 NE2d 777. Ordinary care is \u201cthe care a reasonably careful person would use under circumstances similar to those shown by the evidence.\u201d See IPI, \u00a7 10.02, and cases there cited.\nThe issue of contributory negligence is ordinarily a question for the trier of fact\u2014the trial judge, in the instant case. It becomes a question of law only if \u201call of the evidence, when viewed in its aspect most favorable to [the plaintiff here] . . . , so overwhelmingly favors [the defendant here] . . . that no contrary [finding] . . . based on that evidence could ever stand.\u201d Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504. The Pedrick case is definitive on this subject, and other cases cited need not be considered.\nFrom a careful study of the record, we have concluded that the evidence in the instant case did present an issue of fact as to plaintiff\u2019s negligence or freedom therefrom, and that the trial judge\u2019s finding in this regard was adequately supported by the testimony of witnesses whose credibility he was in the best position to assess.\nDefendant also contends that the trial court erred by denying defendant\u2019s motion that plaintiff be examined on the first day of trial by a doctor of defendant\u2019s choosing, relying on Supreme Court Rule 215(a) which states in part:\n[T]he court upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination .... [Emphasis added.]\nIll Rev Stats 1967, c 110A, \u00a7 215 (a). Paragraph (c) of the same rule requires that a rather complete report be prepared and distributed to both parties within 21 days after the examination, and \u201cin no event later than 14 days before trial.\u201d A brief chronological summary of the proceedings in this case will demonstrate that defendant\u2019s motion was not timely and that the trial court did not abuse its discretion in denying it.\nBoth the complaint and defendant\u2019s answer were filed in March, 1965. On May 31, 1967, the case was originally set for trial on June 26, 1967. Defendant requested and received a continuance at that time. Again, on September 27, 1967, defendant moved for a continuance, which was granted, and trial was reset for October 3, 1967. Plaintiff was inconvenienced by this continuance, since the treating physician was to be unavailable as a witness from October 3 until October 28, 1967. Plaintiff therefore moved for a continuance to \u201cany Monday after October 28, 1967,\u201d and this was granted to Monday, October 30,1967.\nPlaintiff\u2019s deposition was taken by defendant on October 24, 1967, and defendant claims that, as a result of information obtained at the deposition, it made its motian on Friday, October 27, for plaintiff\u2019s physical examination on October 30, the day trial was set to commence. Defendant did not move for another continuance of the trial. No attempt was made by defendant to show good cause for making the physical examination, as required by the discovery rule set forth above. Testimony was heard on October 30 and 31, and judgment was entered on November 1, 1967. On November 29, upon defendant\u2019s motion, the court entered an order, nunc pro tune as of October 27, denying defendant\u2019s motion for plaintiff\u2019s physical examination.\nDefendant\u2019s present attorney substituted his appearance in the case on January 16, 1967. The record discloses that defendant did not avail itself of pretrial discovery procedures in any manner prior to the taking of plaintiff\u2019s deposition on October 24, 1967. The trial having been continued three times to that point, only the weekend intervened until the agreed date for commencement of the trial. Under these circumstances, we believe that the governing rule was not complied with and that the court\u2019s denial of defendant\u2019s motion was well within its proper discretion. See Jackson v. Whittinghill, 39 Ill App2d 315, 188 NE2d 337. We note also that paragraph (d) (2) of the same Rule 215, makes provision for the court to order an impartial medical examination during the course of trial if there are compelling reasons for doing so. Defendant made no request for such an examination.\nDefendant lastly contends that the assessment of the judgment was excessive in that it was based upon speculative medical testimony concerning future surgery for which there was no foundation in the record. Specifically, defendant alleges that plaintiff\u2019s treating physician, Dr. Harold Sofield, an admittedly qualified orthopedic surgeon, testified, from two X rays taken the day following the accident, that plaintiff\u2019s rheumatoid arthritis of the knee (which condition was exposed during the taking of plaintiff\u2019s medical history) had \u201cturned or changed into an osteo-arthritis.\u201d He amplified this diagnosis by explaining that arthritis can be aggravated by trauma and become \u201csymptomatic,\u201d wherein the afflicted area becomes \u201cred, hot and painful.\u201d He further testified that the condition of plaintiff\u2019s knee and ankle was an \u201cadequate cause of pain\u201d and would be a permanent condition unless there were ankylosis of the knee, and perhaps of the ankle, by surgery. Plaintiff\u2019s testimony was adequate to support this medical opinion. She testified that as compared to the time before the accident in question, her knees are \u201cstiffer than they ever were, especially the left one.\u201d Further, she continued to experience pain which was not present before. Plaintiff also testified that she had \u201cterrific pain\u201d in her shank bone and across the left ankle; that her left ankle swells up after she is on it for two or three hours; and that prior to the accident, she had never experienced trouble with either the shank or ankle of that fractured leg.\nWe do not consider this medical testimony improperly speculative. Rather, we find that this testimony, in consonance with plaintiff\u2019s own testimony, very properly presented the issue of damages, as based upon the nature, extent and duration of plaintiff\u2019s injuries. The award of $36,500, although substantial, does not appear to us to be excessive on this record.\nThe judgment of the Circuit Court is affirmed.\nAffirmed.\nDRUCKER, P. J. and STAMOS, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE ENGLISH"
      }
    ],
    "attorneys": [
      "Adamowski, Newey & Riley, of Chicago, for appellant.",
      "John J. Sullivan and William J. Harte, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Mary Crown, Plaintiff-Appellee, v. Village of Elmwood Park, a Municipal Corporation, Defendant-Appellant.\nGen. No. 52,959.\nFirst District, Fourth Division.\nDecember 24, 1969.\nAdamowski, Newey & Riley, of Chicago, for appellant.\nJohn J. Sullivan and William J. Harte, of Chicago, for appellee."
  },
  "file_name": "0278-01",
  "first_page_order": 284,
  "last_page_order": 290
}