Appeal by defendants from the Superior Court of Cook County;
the Hon. HAROLD G. WARD, Judge, presiding. Heard in the first
division of this court for the first district at the October
term, 1949. Affirmed. Opinion filed June 5, 1950. Released for
publication June 26, 1950.
MR. PRESIDING JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Plaintiff Kunigunda Reinmueller sued defendants Chicago Motor Coach Company and Herman Schrubbe, its driver, to recover for injuries sustained by her in an accident which occurred at Western avenue and Addison street, Chicago, on March 4, 1948. There was a verdict finding both defendants guilty and assessing plaintiff's damages in the sum of $45,000 and judgment on the verdict, from which defendants appeal. While the cause was pending here, a motion was made suggesting the death of the plaintiff, and Henry Reinmueller, as administrator of the estate of Kunigunda Reinmueller, was substituted as appellee.
Defendants contend that the verdict was against the manifest weight of the evidence; that the trial court erred in refusing to direct a verdict for the defendants at the close of all the evidence; that the defendants were denied a fair and impartial trial by the misconduct of plaintiff's counsel in his argument to the jury; that there was error in the admission of evidence and the giving of instructions; and that the damages were grossly excessive and were the result of passion and prejudice.
Plaintiff had been a passenger on defendant's bus, westbound. She alighted from the bus at about 7:15 p.m. east of the northeast corner of the intersection of Addison street with a north and south street known as Western avenue, and walked to the corner, intending to cross Western avenue from east to west on the north crosswalk. The light having changed to green for pedestrians and traffic westbound, she started to cross the street when she was struck by the bus from which she had just alighted, and which was in the act of making a right turn into Western avenue from Addison street. She was thrown to the ground and her left leg severed below the knee as a result of the right rear wheel of the bus passing over the leg. She also suffered a fracture of the right elbow, severe bruises, and other injuries.
Plaintiff in her own behalf testified that before starting across Western avenue she looked up and down the street and saw no traffic approaching; that she had reached the most easterly rail or had just entered the northbound streetcar track when she saw the bus from which she had just alighted swinging in a northwesterly direction directly toward her and about an automobile length away; that she attempted to step back to get out of the way. Her testimony on direct examination on this point is as follows:
"When I saw the bus coming towards me I was within a foot or two or so of the street car rail. As to what I did when I saw the bus coming, well, the bus was coming for me, I saw it and the bus was going, and I stepped back a little bit. Evidently I didn't step back enough and then the bus just hit me. The bus was just coming and hit me. It was on the right side of the bus behind the door, the bus hit me twice. I mean the side door on the right side, it struck me. When it struck me it knocked me down and my leg went under the wheels and the wheel got over my leg."
She testified that the driver did not sound a horn or give a signal of any kind before striking her; that the bus knocked her toward the north and east, and the bus, after passing over her leg, stopped a couple of feet beyond her, she lying about 10 feet in back of the rear wheels.
There was some dispute as to the speed of the bus, a witness for plaintiff fixing the speed at about 10 miles an hour as the bus was going around the corner, and defendant Schrubbe stating, "if I was going four miles an hour I was going fast."
Defendant Schrubbe testified that he did not at any time see the woman prior to the accident; that he became aware of the fact that he had struck the plaintiff when he heard a thump on the back end of the bus and heard and saw someone on the safety island north of the crosswalk hollering and waving; that he applied his brakes immediately; that when he had stopped at Western avenue to discharge passengers he was parked within a couple of feet of the north curb and that in order for him to make the right-hand turn into Western avenue and allow the bus sufficient clearance, it was necessary to pull out from the north curb toward the left or toward the southwest so that when he got out into Western avenue his bus was proceeding in a southwesterly direction; that he then turned to the north and to the right and that the bus had almost completed the turn when he heard the thump. Although on the trial he denied that there were people standing in the bus or that his view was obscured, testimony of certain police officers was introduced by way of impeachment, to the effect that in a statement shortly after the accident Schrubbe said that he did not feel the impact with the woman because "he had too many people on the bus and they were all crowded up around him and he couldn't see to the right."
Defendants' view of the case, that the plaintiff, regardless of her own safety, walked directly into the side of the moving bus, is based in large part upon the testimony of a witness, Klein, who testified that he was standing on the safety island on Western avenue, just north of the north crosswalk of Addison street. His direct testimony, in material part, is as follows:
"I saw her when she stepped off the curbstone down into the street. I saw her from the moment she started to run from the moment she started to walk. I should say not running. When she stepped off of the curbstone down into the street the motor coach was practically half way around the corner. When she stepped off the curb I observed the coach continued. I observed the lady started walking briskly, walking across, but all of a sudden she stopped and she was close to the coach, and she kind of swerved to the right and they met each other. . . . As she was moving out into the street her head was kind of down, it was sort of a windy day or a windy evening I should say. When she came in contact with the bus I held my hand like that and I hollered `Stop' to the driver. He stopped right away."
There was considerable other testimony on both sides having to do with matters incidental to the main issue here involved, but the essential proof is to be derived from the testimony of the witnesses here reviewed. Even though the testimony of the police officers bearing upon the admission of defendant Schrubbe that he did not see the plaintiff because his view was obscured by persons standing on the front of the bus be disregarded, the fact that the bus made a wide sweeping turn from a southwesterly direction to a northerly direction and Schrubbe's vision being unobscured raises a question of fact as to whether or not in the exercise of due care Schrubbe should have seen the plaintiff before the accident. Our examination persuades us that the liability of the defendants was clearly and unmistakably established by a preponderance of the evidence. Our holding in this respect disposes also of the contention of the defendants to the effect that the trial court should have granted defendants' motion for a directed verdict.
It is argued with vigor by defendants that counsel for plaintiff was guilty of prejudicial and defamatory argument. We have carefully examined these arguments, as well as those of counsel for defendants. We find some statements in each which are subject to criticism. Much of the argumentative matter of which defendants complain was plaintiff's reply to matters discussed by the attorney for defendants. One of the statements of which defendants complain as constituting reversible error appears in plaintiff's closing argument to this effect: "Counsel made some statement, which I couldn't quite hear, that I was mistaken about the police statement of the witness Ohlson. Now, do I understand you are not objecting to this police statement of Mr. Ohlson going into evidence?" Objection was made to the statement and sustained, after which plaintiff's counsel made this additional comment: "I don't want the slightest misunderstanding, Ladies and Gentlemen, about the reason you are not getting this statement of Mr. Ohlson to the police. I couldn't hear counsel very well as I sat back there, but I thought he was saying that I misunderstood him and he didn't object to it now. The statement of Mr. Ohlson is here and I have no objection to it, but I haven't any right to put it into evidence unless it is used against the witness." Counsel for defendants state that the purpose of counsel for plaintiff in making this statement was to suggest to the jury by insinuation that if it was admitted its contents would be unfavorable to the defendants. A number of cases are cited with which we are in accord, to the effect that counsel should not undertake to create a prejudice against the opposing party by arguing that if evidence which the court has held inadmissible had been admitted it would have been adverse to the opposite party. However, an examination of the entire argument here indicates that in his opening counsel for plaintiff stated to the jury that it was not permissible for him to put in evidence, for the purposes of corroboration, the statement the witness Ohlson had given to the police. Ohlson had testified, without objection, that at the time the rear wheels of the bus went over some object its speed was 10 miles an hour "as I said in the police statement," and counsel's statement in his opening argument was to explain why the police statement had not been admitted. He further stated that if the witness had testified to acts different from those he related to police the defendants had the right to use the statement to impeach him, and defendants had not impeached him, but had objected to any reference to it. No objection was made to this argument. Later, defense counsel, in answering this argument, made the following statement to the jury: "So Mr. Ohlson gave him (the bus driver) his name that night. What was in Mr. Ohlson's mind at that time? He gave his name to the police that night, also. And counsel said we objected to the statement of the police. He is forgetting again, a very convenient lapse of memory. He interrogated Mr. Ohlson about what he said to the police. Did we object to it? No, because we had a statement from Mr. Ohlson that was given a day or so after this accident." It is not difficult to understand that this statement might be understood as meaning that counsel for defendant did not object to the police statement. We see no reversible error, under these circumstances, in the portion of the final argument quoted above of which defendants complain. It would unduly prolong this opinion to discuss each of the numerous objections made by defendants to plaintiff's argument, but on the whole we find nothing in the argument of plaintiff's attorney which would require a reversal of this case.
In Walsh v. Chicago Rys. Co., 303 Ill. 339, in commenting upon a closing argument, the court said at page 351:
"This court has said more than once, that in arguing cases to the jury attorneys must be allowed to make reasonable comments upon the evidence. The interest of public justice requires that counsel should not be subjected to unreasonable restrictions in this regard. (Illinois Central Railroad Co. v. Beebe, 174 Ill. 13; Chicago City Railway Co. v. Creech, 207 id. 400.) Whether or not an objection should be sustained to remarks made in argument by an attorney in the trial of a case and whether his objectionable remarks should be held to be error may depend upon the preceding argument of opposing counsel."
Several of the statements denounced are inferences which plaintiff's counsel was entitled to deduce from the evidence. Wide latitude should be allowed in this regard. If the rule with reference to improper inferences were applied as strictly as counsel for defendants urge, it would have a tendency to deprive litigants of the right of having their cases argued, for the prudent attorney would in such case forego argument rather than risk reversible error. In Commonwealth Elec. Co. v. Rose, 214 Ill. 545, the court said at page 561:
"Counsel may arraign the conduct of the parties, and impugn, excuse, justify, or condemn motives, so far as they are developed in evidence, or assail the credibility of witnesses when it is impeached by direct evidence, or by inconsistency, or incoherency of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. `He may argue such conclusions from the testimony as he pleases, provided he does not misquote witnesses.' . . . It has been said: `Just and fierce invective, when based upon the facts in evidence and all legitimate inferences therefrom, is not discountenanced by the courts.'. . . ."
The jury were fully and fairly instructed upon all issues in this lawsuit, including the matters which defendants claim were unfairly argued, and we are not to presume that they were dissuaded from the duty clearly and emphatically impressed upon them in the many instructions of the trial judge by the heated remarks of partisan counsel. Complaints about the argument were heard by the careful trial judge, not only during the course of the trial, but also on the motion for a new trial. He overruled this motion. Upon due consideration we are of the opinion that he was justified in so doing. In the case of County of Jackson v. Wayman, 369 Ill. 123, the court said:
"It is only where it appears that the trial judge has abused his discretion in this matter and that the jury has been misled by improper remarks of counsel that we will set aside a verdict on this ground."
In North Chicago St. R. Co. v. Cotton, 140 Ill. 486, the court said at page 503:
"Every reasonable presumption must be indulged in that the trial judge has performed his duty and has properly exercised the discretion vested in him, and that he has permitted no misconduct of counsel materially prejudicial to the opposite party to intervene, unless such misconduct and its prejudicial nature are clearly shown by the record."
Complaint is made of the giving and refusing of certain instructions. In this case 16 instructions were given on behalf of defendants, and two instructions were refused. Twenty-two instructions were given on behalf of plaintiff. In all, 40 instructions were tendered and 38 instructions given on behalf of both parties. While we take this occasion to repeat what has so often been said by this court, that the giving of this number of instructions in a suit involving simple issues places an undue burden upon the trial court, nevertheless, in the instant case we find no prejudicial error either in the giving or refusing of instructions. Every phase of the case was fully and completely covered, and we feel that the jury had a thorough understanding of all the issues involved. Neither do we find any prejudicial error in the admission or rejection of evidence.
Complaint is made that the damages awarded by the jury were grossly excessive and were the result of passion and prejudice. The injuries here were undisputed; they were of such nature as to leave no room for dispute. This 68 year old woman's leg was severed, the bone was crushed and there was nothing left of the soft part except the enveloping skin. Traction was applied to the skin about the stump in order to pull it down to cover it and this treatment continued for about eight weeks. Infection, complicated by diabetes, set in and had to be treated while the patient was in the hospital. Skin grafts were necessitated and the patient underwent major operative procedures at least three times and was taken to the operating room on 18 or 20 other occasions. She had a number of blood transfusions and was in the hospital from March 4th to May 29th. In addition, she suffered a fractured right elbow, the break extending into the joint, and an injury to her right leg and ankle, which was accompanied by pain and swelling. She testified as to long and continuous pain. Medical expenses up to the time of the trial were approximately $5,325, and there were continuing expenses, such as $30 a week for a practical nurse and attendant and medicines. The evidence showed that although the plaintiff suffered from diabetes it was well controlled and that she was vigorous and active prior to the injury, and that as a result of the injury she had become totally dependent upon the physical assistance and care of others. The jury were entitled to consider the pain and suffering undergone, the disfigurement and mutilation, as well as the decreased purchasing power of the American dollar, and the fact that the continuing disability of the plaintiff would require the care and services of a nurse or attendant for the remainder of her life. In view of all these circumstances we are unable to say that the amount awarded is excessive.
The judgment of the superior court of Cook county is therefore affirmed.
This dissent is limited to the unpleasant duty of considering the improper argument and conduct of experienced counsel for plaintiff and the failure of the trial judge to rule effectively, preserve the dignity of the court and procure for defendants a fair and orderly trial.
In his closing argument plaintiff's counsel summarizes his complaint as follows:
"But his (the driver's) harm wasn't in his speed. That was only a factor in this case. It was everything, the fact that the man started up without paying any attention, without obeying the law which says he has to warn a person if he is going to turn upon them, that he has to give a warning before turning, that he shall not make a turn until he can do it with safety. All of those things brought this accident about."
Defendants deny the negligence charged and in addition urge the contributory negligence of ...