{ "id": 5183405, "name": "George Melford, Jr., a Minor, by George Melford, His Father and Next Friend, and George Melford, Appellee, v. Gaus and Brown Construction Co., Inc., Appellant", "name_abbreviation": "Melford v. Gaus & Brown Construction Co.", "decision_date": "1958-05-28", "docket_number": "Gen. No. 47,199", "first_page": "497", "last_page": "507", "citations": [ { "type": "official", "cite": "17 Ill. App. 2d 497" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "3 Ill.App.2d 311", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5128989 ], "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/3/0311-01" ] }, { "cite": "351 Ill. App. 11", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5112851 ], "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-app/351/0011-01" ] }, { "cite": "324 Ill. App. 123", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4957743 ], "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-app/324/0123-01" ] }, { "cite": "247 Ill. App. 378", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3304491 ], "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-app/247/0378-01" ] }, { "cite": "307 Ill. 219", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5090660 ], "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill/307/0219-01" ] }, { "cite": "216 Ill. App. 29", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2993240 ], "opinion_index": 0, "case_paths": [ "/ill-app/216/0029-01" ] }, { "cite": "300 Ill. App. 219", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3236328 ], "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-app/300/0219-01" ] }, { "cite": "221 Ill. App. 504", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 8499832 ], "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ill-app/221/0504-01" ] }, { "cite": "244 Ill. 244", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3411209 ], "opinion_index": 0, "case_paths": [ "/ill/244/0244-01" ] }, { "cite": "161 Ill. App. 630", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2726547 ], "pin_cites": [ { "page": "635, 636" } ], "opinion_index": 0, "case_paths": [ "/ill-app/161/0630-01" ] }, { "cite": "124 Ill. App. 648", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2505774 ], "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/ill-app/124/0648-01" ] }, { "cite": "6 Ill.App.2d 85", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5139277 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/6/0085-01" ] }, { "cite": "227 Ill. 571", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5627189 ], "pin_cites": [ { "page": "575-80" } ], "opinion_index": 0, "case_paths": [ "/ill/227/0571-01" ] }, { "cite": "9 Ill.App.2d 182", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5153410 ], "pin_cites": [ { "page": "220-21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/9/0182-01" ] }, { "cite": "147 Ill. App. 601", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2648006 ], "opinion_index": 0, "case_paths": [ "/ill-app/147/0601-01" ] }, { "cite": "210 Ill. App. 144", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5820753 ], "opinion_index": 0, "case_paths": [ "/ill-app/210/0144-01" ] }, { "cite": "331 Ill. App. 552", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5054203 ], "opinion_index": 0, "case_paths": [ "/ill-app/331/0552-01" ] }, { "cite": "224 S.W.2d 396", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1852303 ], "opinion_index": 0, "case_paths": [ "/mo-app/240/1134-01" ] }, { "cite": "306 Ill. 370", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5780692 ], "opinion_index": 0, "case_paths": [ "/ill/306/0370-01" ] }, { "cite": "111 N.E.2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.2d 100", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5173435 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0100-01" ] }, { "cite": "5 Ill.2d 614", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703925 ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0614-01" ] }, { "cite": "15 Ill.App.2d 533", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5177390 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0533-01" ] }, { "cite": "284 Ill. App. 493", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3159297 ], "opinion_index": 0, "case_paths": [ "/ill-app/284/0493-01" ] }, { "cite": "315 Ill. 293", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2437682 ], "opinion_index": 0, "case_paths": [ "/ill/315/0293-01" ] } ], "analysis": { "cardinality": 804, "char_count": 13773, "ocr_confidence": 0.521, "pagerank": { "raw": 1.8713333583265883e-07, "percentile": 0.7263031551260325 }, "sha256": "d26f27a64a5ba1ae3d8ca5e01ac5187c3d412adef748f033a71bdd2a1e515bd7", "simhash": "1:3464d7d0620c1e36", "word_count": 2318 }, "last_updated": "2023-07-14T15:08:03.648155+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LEWE and MUEPHY, JJ., concur." ], "parties": [ "George Melford, Jr., a Minor, by George Melford, His Father and Next Friend, and George Melford, Appellee, v. Gaus and Brown Construction Co., Inc., Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE KILEY\ndelivered the opinion of the court.\nThis is a personal injury action in behalf of a minor child injured while playing on and about the excavation and foundation for a new building on Lincoln Avenue in Chicago. Verdict and judgment were in plaintiff\u2019s favor for $20,000 and defendant appeals.\nThe minor, Melford Jr., then nine years of age, was injured June 27, 1950, when, while playing tag with another boy, he fell backwards over the front edge of the wooden platform covering the foundation into the space between the platform and the Lincoln street sidewalk. He fell twelve or fourteen feet to the basement level and struck his head on a \u201cheavy plank\u201d on the ground.\nThe double sidewalk on Lincoln Avenue in front of the excavation was broken up but the part of the walk near the street was cleared so that it could be used by pedestrians. The only barricades in use were to prevent passersby from using tbe inner part of the sidewalk. There were no barricades to prevent entry upon the platform or excavation and the boys entered over a plank between the sidewalk and platform or by leaping over the space between them. They could also enter readily from the alley or, as Melford Jr. did the day he fell, from the side at the rear of the building-adjoining the excavation.\nDefendant contends there was no evidence of negligence. On this contention we apply the familiar rule and consider only the evidence favorable to plaintiff, together with legal inferences drawn most strongly in plaintiff\u2019s favor, disregard contrary or contradictory evidence and decide whether there is any evidence to prove imprudence on defendant\u2019s part. Hunter v. Troup, 315 Ill. 293; Mahan v. Richardson, 284 Ill. App. 493; Nagle v. City of Chicago, 15 Ill.App.2d 533.\nChildren played on and about the excavation daily and used ladders going from the foundation platform to the basement level or by swinging \u201cfrom our arms\u201d and dropping. It \u201cseemed a good place to play.\u201d Mel-ford Jr. had not played at the excavation before the day he was injured. On that day he played with other boys from nine thirty in the morning until lunch, and after lunch he played till injured. Men were working there and did not \u201cchase us off.\u201d Near the front of the excavation was a pile of \u201cconcrete frames\u201d about six feet high. His playmate \u201cgot on the pile,\u201d and Mel-ford Jr. \u201ctook a few steps back and fell off\u201d the platform.\nFrom that testimony the jury could infer that defendant knew, or should have known, that the unbarricaded, unguarded and easily accessible platform over the excavation and foundation would attract small boys; that the platform did not completely cover the foundation and adjoining spaces; and that small boys ran about the platform and about the basement level and \u201cswinging from\u201d their arms dropped from the platform to the ground 12 or 14 feet below. And the jury could infer that defendant should have foreseen that in playing about the platform a small boy might take a few steps backwards and fall into an uncovered space to the ground below and be injured. We think the testimony was sufficient to take the case to the jury. Kahn v. James Burton Co., 5 Ill.2d 614; Wilinski v. Belmont Builders, Inc., 14 Ill.App.2d 100. The \u201clatent danger\u201d element was referred to in the Wilinski case not because that element is essential but to show that even under the rule stated in Neal v. Home Builders, 111 N.E.2d 280 (Ind.) the Wilinski proof was enough.\nWe see no merit in defendant\u2019s contentions of error in the admission of medical testimony.\nThe principal medical testimony was based on three electroencephalographic tests made of Melford Jr.\u2019s brain in 1950, 1955 and 1956. The graphs of these tests were introduced in evidence. They consist of tracing's made on paper by an electrical device which measures brain impulses. The impulses are detected by electrodes placed on the head of the patient and are recorded in the tracings. The tracings are somewhat like those made in an electrocardiograph.\nThe office reports upon the tests (ex. 5) contain the name and address of Melford Jr. and of his doctor, Dr. Andelman, and one of them contains the name and address of the minor\u2019s attorney. The reports clearly refer to electroencephalographs of Melford Jr. Exhibit No. 5 was supplemented by an electroencephalograph about ten feet long, made at the October 1950 test. Also the expert at whose office the tests were made testified he had written an explanatory letter to Dr. Andelman, after the tests were made. Exhibit No. 6 is a graph of tracings more than 60 feet long. Pasted on the reverse side of this graph is an office record clearly referring to Melford Jr. We think there was sufficient identification of the exhibits as graphs of tests of Melford Jr.\nThe expert Dr. Gibbs testified that when tests are made in his office he sets up prescribed conditions which give an objective finding when extraneous radiation disturbances and patient disturbances are held to a minimum; that the expert\u2019s technicians try to keep these disturbances at a minimum; that the tests made when the patient is asleep, as Melford Jr. was tested in part, are free of disturbances; and that the instant tests were made under Dr. Gibbs\u2019 supervision. His testimony justifies the inference that the instrument was properly \u201ccalibrated\u201d and in proper functional order and that the graphs were made under competent technical care. There was testimony, moreover, that experts can tell from examining the tracings whether the results of a given test are valid. There was no expert or other witness for defendant to refute plaintiff\u2019s medical testimony.\nThere is no Illinois case dealing with electroencephalographs and none from other jurisdictions have been cited. The parties argue the analogy between electroencephalographs and other medical testing devices. Defendant relies upon Stevens v. Illinois Cent. R. Co., 306 Ill. 370, an x-ray case. The facts there clearly showed no basis for an inference that the x-ray correctly and accurately portrayed the condition it purported to represent so as to come within the rule stated by the court (page 375) that x-rays \u201ccannot be received as evidence until proper proof of their correctness and accuracy is produced.\u201d Defendant also refers us to Quadlander v. Kansas City Public Service Co., 224 S.W.2d 396 (Mo. Court of Appeals), where the court upheld a ruling which excluded an audiogram. The court there thought (page 401) that the same \u201cprinciples and specific requirements\u201d governing x-ray should apply to audiograms. This court in Lazarus v. Friel, 331 Ill. App. 552, rejected the argument that x-rays should not be admitted for the sole reason that the technician who took the pictures was not produced as a witness. We conclude there was no error in admitting exhibits, Nos. 5, 6 and 7.\nWe are satisfied too that defendant was not prejudiced by markings, comments and \u201chistories\u201d on the exhibits. For the most part the matter was cumulative of other evidence and where not cumulative had little significance.\nAn important question is whether there was prejudicial error in admitting some testimony of Dr. Andelman and in admitting \u201cspeculative\u201d medical testimony.\nDr. Andelman testified that in 1956 after the trial began, Melford Jr. told him that he had suffered periodic dizzy spells since the fall in 1950. The testimony was properly received since the doctor was not called merely as an expert at the time of the trial as in Horstman v. Chicago Rys. Co., 210 Ill. App. 144, and Barnes v. Chicago City Ry. Co., 147 Ill. App. 601. In Bowman v. Illinois Cent. R. Co., 9 Ill.App.2d 182, 220-21, the court found error in permitting a non-attending physician to testify to subjective symptoms. None of these cases are applicable. Dr. Andelman was the family pediatrician and moreover Melford Jr. himself testified that he had the spells. The question of the weight of the testimony of the spells was for the jury-\nThere is no merit to the point that there was error in permitting Dr. Andelman\u2019s testimony to precede the introduction of the graphs. His diagnosis, to which he testified, was based partially upon them, and his testimony was necessary as a basis for the hypothetical put to the experts. He did not interpret the graphs.\nThe electroencephalographs showed changes in the condition of Melford Jr.\u2019s brain from \u201ca mild abnormality\u201d in 1950, through \u201cpositive spike seizures\u201d in one hemisphere of the brain in the tracings in 1955, to \u201cspike seizures\u201d in both hemispheres of the brain in 1956. Dr. Andelman testified that he clinically observed a personality change in the boy in 1952. This testimony of change was corroborated by the boy\u2019s mother. The doctor recommended a psychological study which was not made. After the last electroencephalograph test \u201ca regimen of epileptic treatments\u201d Avas begun. The doctor\u2019s opinion was that \u201call conditions of progression\u201d Avere present and that because of the changes shown in the test there Avas a \u201cgood chance\u201d of eventual epileptic seizures. Defendant disputed neither the fact of the fall nor the visible physical injuries suffered by Melford Jr. This being so, there was no error in testimony of Dr. Andelman that, \u201cI think this is related to the event that occurred.\u201d City of Chicago v. Didier, 227 Ill. 571, 575-80; Babbitt v. May, 6 Ill.App.2d 85.\nDr. Gibbs, the expert electroencephalographer testified that the \u201cspike seizure\u201d patterns shown in the graphs, correlated with the testimony of \u201cdizziness,\u201d indicated \u201ca lack of control of the rhythmic activity of the brain\u201d which is \u201cepilepsy as defined in the more technical, modern way,\u201d and the testimony of Melford Jr. as to his fogginess, dizziness, head pains and strange head sensations were common \u201cin certain types of epileptic or epileptiform disorders\u201d; that the boy\u2019s condition in older terms was a petit mal which \u201ccan eventually become a full bloAvn epilepsy with convulsions\u201d; that no medicines will eradicate this disorder; and that no treatment can eliminate it and surgery is out of the question.\nDr. Kesert, plaintiff\u2019s expert in neurology, gave his opinion that on the \u201cduration of the symptoms, six year period . . . and . . . the findings are getting worse\u201d the injury was permanent. Defendant contends error was committed in permitting Dr. Kesert to answer a hypothetical question \u201cbased on the opinion of another expert.\u201d There is no merit to this contention. The doctor expressly stated the basis of his opinion: (a) the evidence of Melford Jr.\u2019s physical condition after his fall, and (b) the testimony of the electroencephalographs showing progressive abnormality. These were facts in evidence and were properly included in the hypothetical question and a proper basis of the opinion. The court said it would strike other testimony of this expert based on subjective symptoms and on hearsay. Taken as a whole we think the incident removed the criticism made of the testimony in City of Chicago v. France, 124 Ill. App. 648, 651, and Elward v. Illinois Cent. R. Co., 161 Ill. App. 630, 635, 636.\nWe think the medical evidence is not \u201cspeculative\u201d and that the jury could infer that there was reasonable medical certainty that the thalamic epilepsy would grow progressively worse. That is enough. Lauth v. Chicago Union Traction Co., 244 Ill. 244; Boss v. Illinois Cent. R. Co., 221 Ill. App. 504, 512. The facts in Gaydos v. Peterson, 300 Ill. App. 219, 227, and in Told v. Madison Bldg. Co., 216 Ill. App. 29, distinguish them from the instant case. There was no expert medical testimony presented by defendant. We think there was sufficient showing made of the causal connection between the fall of Melford Jr. and his injury, in the testimony of Melford Jr.; of his mother; and of his pediatrician and of three expert witnesses whose testimony was not rebutted.\nIn view of our decision on the questions of the extent of the injury to Melford Jr., we are of the opinion that there is no merit to the contention that the verdict is excessive.\nThe cases cited by defendant do not support a claim of prejudicial error in the argument to the jury. We agree with the comment in Patterson v. Peabody Coal Co., 3 Ill.App.2d 311, 318, that tbe name of tbe law firm representing defendant had \u201cno part\u201d in tbe law suit and tbe several references to that firm sbonld not bave been made, and that tbe argument should not bave been persisted in when objections were sustained. Gregory v. Richey, 307 Ill. 219, 231. Neither of these, however, prevented a fair trial for defendant. The argument did not attempt \u201cto bave tbe jury put itself in the position\u201d of tbe injured, as in Thomas v. Illinois Power & Light Corp., 247 Ill. App. 378, 388, so far as tbe report of tbe case shows; nor does it urge counsel\u2019s \u201cpersonal opinions or feelings on tbe jury\u201d as in Goad v. Grissom, 324 Ill. App. 123, 129.\nFinally, we think that there was no error in tbe giving of plaintiff\u2019s instruction No. 9. It does not come within the rule in Signa v. Alluri, 351 Ill. App. 11, 20; it is only about one half tbe length of tbe complaint and is not directory. Tbe term \u201cproximate cause\u201dused in tbe instruction is defined in another.\nFor tbe reasons given tbe judgment is affirmed.\nAffirmed.\nLEWE and MUEPHY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE KILEY" } ], "attorneys": [ "Kirkland, Fleming, Green, Martin & Ellis, of Chicago (David Jacker, William H. Symmes, and Robert Kingman, of counsel) for appellant.", "Owens, Owens & Rinn, of Chicago (John E. Owens, and Walter B. Bieschke, of counsel) for appellee." ], "corrections": "", "head_matter": "George Melford, Jr., a Minor, by George Melford, His Father and Next Friend, and George Melford, Appellee, v. Gaus and Brown Construction Co., Inc., Appellant.\nGen. No. 47,199.\nFirst District, Second Division.\nMay 28, 1958.\nReleased for publication July 1, 1958.\nKirkland, Fleming, Green, Martin & Ellis, of Chicago (David Jacker, William H. Symmes, and Robert Kingman, of counsel) for appellant.\nOwens, Owens & Rinn, of Chicago (John E. Owens, and Walter B. Bieschke, of counsel) for appellee." }, "file_name": "0497-01", "first_page_order": 507, "last_page_order": 517 }