{
  "id": 5349510,
  "name": "Ida Finkelstein, Appellee, v. City of Chicago, Appellant",
  "name_abbreviation": "Finkelstein v. City of Chicago",
  "decision_date": "1912-03-14",
  "docket_number": "Gen. No. 16,138",
  "first_page": "475",
  "last_page": "479",
  "citations": [
    {
      "type": "official",
      "cite": "168 Ill. App. 475"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T18:34:38.590196+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Ida Finkelstein, Appellee, v. City of Chicago, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Freeman\ndelivered the opinion of the court.\nThe plaintiff \u2014 appellee herein \u2014 recovered a judgment against the city of Chicago for $7,000, from which judgment this appeal is prosecuted.\nPlaintiff\u2019s testimony is to the effect that April 2, 1902, she was walking west on the south side of Maxwell street, Chicago, carrying her child in her arms. She says she was walking \u201cslowly and carefully;\u201d that in front of 264 Maxwell street \u201cthe hoard gave way and my foot went in and I fell right down and the child flew out of my hands. I fell on the right side.\u201d She says she was \u201chollering and screaming from pain;\u201d that she was picked up by two gentlemen who sat her down in front of 264 Maxwell street; that she \u201cdidn\u2019t know very much for me. I was half fainting\u2019.\u201d She was pnt in a patrol wag\u2019on by two policemen and carried np stairs to her flat, pnt to bed and a doctor sent for. She was, she says, \u201cvery heavy and stout\u201d and weighed then it is said over 180 pounds, but just before the trial her weight apparently was 118 pounds. One of the doctors who attended her at that time testifies that he found \u201cquite a bit of swelling and contusion and bruising upon the right side, and it was a question in pur minds at that time I recollect, whether there was a fracture of the outer portion of the bone or not.\u201d He states that he and another doctor, who was present with him at this first examination, thought the malleolus \u2014 a bone on the external side of the tibia \u2014was fractured. The two doctors put plaintiff\u2019s leg in splints. There is testimony in plaintiff\u2019s behalf, given by a doctor who examined her leg in March, 1906, that he \u201cfound the woman had a displacement and dislocation of the right ankle;\u201d that the joint is opened up so that there is a \u201ctriangular abnormal triangle space in the angle joint;\u201d that \u201cthe external malleolus and parts around the external malleolus are enlarged and the external malleolus overrides the outside of the foot so that the body bearing weight instead of being near the center of the foot, where it belongs, is at the outer margin of the foot.\u201d There is further testimony of plaintiff to the effect that she wore a plaster cast about eight weeks on the injured leg, that she suffered much pain, that the ankle \u201chas been swollen from that time to this, only sometimes less and sometimes more,\u201d that \u201cit swells most in the evening,\u201d that \u201cI cannot stand much on it. When I stand' on it, it swells. It swells more when I walk;\u201d that her hand and arm hurt her at the time of the injury \u201cvery bad;\u201d that the \u201chand has been getting worse every day; that sometimes it is less and sometimes more;\u201d that \u201csometimes I tremble a bit;\u201d that \u2018 \u2018 I can hardly do anything with my hand; \u2019 \u2019 that she was \u201ctwo months in the family way at the time of th\u00e9 injury;\u201d that the child \u201cwas born in eight months and four days;\u201d that about two years after the birth of that child she gave birth to another; that she had a miscarriage about a year and a half after that; that she had two children before the injury, two since the injury, one miscarriage and one still born.\nThere is conflict in the evidence as to the nature, extent and existence of some of the ills from which plaintiff claims to be suffering as the result of the injury. This conflict extends to the testimony of medical witnesses. One of the doctors who had known the plaintiff a number of years and was apparently her family physician and was called in and treated the plaintiff in connection with another doctor immediately after the accident, says that while he diagnosed the case to be a swelling of the ankle, and that the two doctors then present \u201cthought\u201d there might be a \u201ctipping of the malleolus,\u201d a \u201ctipping of, a crack of the top of the malleolus,\u201d that subsequently \u201cwe concluded there was no fracture, no complete fracture, simply a sprained ankle. \u2019 \u2019 The same doctor who treated her at least eight weeks and until, as he says, he \u201cconsidered her recovered\u201d and the injury cured, testifies that he never noticed any shaking of the plaintiff\u2019s hand then and never discovered any lack of power to use her hand and no symptoms of the \u201cparalysis agitans\u201d or shaking palsy which plaintiff claims to be suffering from as a result of the injury in question. Her own medical witness testifies that \u201cTic\u201d or St. Vitus Dance can produce the same symptoms, and that plaintiff may have \u201cTic,\u201d which may be produced by traumatic rheumatism. There is' testimony tending to show that a physician who attended plaintiff when she was confined subsequent to the accident, and on other occasions since then, heard nothing about the alleged trouble with the plaintiff\u2019s right hand and that nothing was then \u201csaid about her arm or her ankle,\u201d although he treated her afterward for diabetes, which disease may-account for plaintiff\u2019s loss of weight and the miscarriage. It does not appear that the diabetes was in any way the result of the accident. There is evidence also tending to show that since the accident she went about her affairs, showing no evidence of trouble with her hand nor lameness in her walk.\nIt is contended by counsel for appellant that the verdict is against the evidence, that the court erred in not granting a new trial upon affidavits of newly discovered evidence, that the conduct of counsel for appellee was prejudicial to appellant and that the damages awarded by the judgment are excessive.\nIt is not disputed but that the appellee received some injury from the fall on the alleged defective sidewalk. For .this she may be entitled to recover such an amount as would afford adequate compensation. But we believe the judgment is so excessive under the evidence that we should not be justified in affirming it for any such amount. We agree with appellee\u2019s counsel in part of the statement that \u201cthe sole question before this court is whether the judgment for $7,000 is so grossly excessive\u201d, not \u201cas to strike all mankind at first blush as outrageous,\u201d as appellant\u2019s counsel states it, but so excessive as to require either a reversal or a reduction of the judgment. We have considered the evidence with care. The case has been tried before. There is, as we have said, no question that plaintiff is entitled to recover some damages. It is not the province of this court to assess the amount of plaintiff\u2019s damages, but it is within our province to determine where, as here, it appears clearly from the evidence that the amount of the judgment is excessive, what if any part thereof it would be proper for us under the evidence to affirm in case the plaintiff chooses to remit the excess.\nIf therefore the plaintiff chooses to remit the difference within ten days, the judgment will he affirmed for twenty-five hundred dollars. Otherwise the judgment will he reversed and the cause remanded.\nAffirmed on remittitur.\nRemittitur filed and judgment affirmed March 21, 1912.",
        "type": "majority",
        "author": "Mr. Presiding Justice Freeman"
      }
    ],
    "attorneys": [
      "Edward J. Brundage and John R. Cayerly, for appellant; George L. Reker, of counsel.",
      "Brandt & Hoffmann, for appellee; Leo Y. Boeder, of counsel."
    ],
    "corrections": "",
    "head_matter": "Ida Finkelstein, Appellee, v. City of Chicago, Appellant.\nGen. No. 16,138.\nVerdicts \u2014 province of court in reviewing sise. It is not the province of the Appellate Court to assess the amount of the plaintiff\u2019s' damages, hut it is within the province of that court to determine where it appears clearly from the evidence that the amount of the judgment is excessive, what, if any part thereof, it would he proper for such court under the evidence to affirm in case the plaintiff chooses to remit the excess.\nAction in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1909.\nAffirmed on remittitur.\nOpinion filed March 14, 1912.\nRemittitur filed and judgment affirmed March 21, 1912.\nEdward J. Brundage and John R. Cayerly, for appellant; George L. Reker, of counsel.\nBrandt & Hoffmann, for appellee; Leo Y. Boeder, of counsel."
  },
  "file_name": "0475-01",
  "first_page_order": 493,
  "last_page_order": 497
}