Appeal from the Circuit Court of Cook county; the Hon. CHARLES
I. FLEMING, Judge, presiding. Reversed and remanded.
MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 8, 1955.
Defendant appeals from a verdict and judgment for $45,000 in favor of plaintiff in this action for personal injuries. Plaintiff was injured in a collision between two elevated trains operated by defendant, while she was riding in one of them as a passenger. Upon the trial of the case defendant withdrew its original answer and substituted by leave of court an answer which admitted its negligence but denied plaintiff sustained the injuries claimed. The only issue before the jury was the extent of the injury caused by the collision.
It appears from the evidence that plaintiff, as a result of the collision, was thrown to the floor of the car in which she was riding; that another passenger was thrown and fell upon her; and that she was struck on the head by an advertising sign.
The questions presented upon this appeal are: (a) whether the verdict is excessive and was induced by claimed prejudicial conduct of counsel for plaintiff; and (b) whether certain evidence admitted over the objection of defendant was incompetent and prejudicial.
Over the objection of defendant, six photographs were received in evidence as exhibits 1 to 6 inclusive. Exhibit 2 disclosed the splintered condition of the cars involved in the collision. Exhibit 4 disclosed the condition of the car in which plaintiff was riding after the collision. Exhibits 5 and 6 likewise showed other views of the condition of the cars after the collision. These were competent as evidence of the severity of the impact, which resulted in the splintered condition of the elevated cars portrayed in the exhibits, and had a material bearing upon plaintiff's claim that her injuries could result from such an accident.
Exhibit 1 showed a city fireman assisting a male passenger from the scene of the collision. Exhibit 3 showed three city firemen assisting a woman passenger through the window of one of the cars involved in the accident. Exhibit 1 displayed a pained and frightened condition on the face of the passenger. Exhibit 3 shows a similar appearance with respect to the woman passenger. The condition of the passengers in the two exhibits referred to was not an issue in the case and could not have any material bearing upon the extent of the injuries sustained by plaintiff. The natural tendency of such pictures would be to arouse the sympathies or prejudices of a jury rather than to throw any light on the single issue.
The statement of the rule in 32 Corpus Juris Secundum, p. 612, § 709, and cases cited supporting it, is:
". . . Photographs should be excluded where they are irrelevant or immaterial. They should be excluded where they would confuse or mislead rather than aid the jury, distract the jury's attention from the main issues, or unduly emphasize the claims or the evidence of one of the parties, or where the natural effects of their introduction in evidence would be to arouse the sympathies or prejudices of the jury, rather than to throw any real light on the issues. . . ."
Several witnesses for plaintiff, passengers in the cars involved, testified to their condition of ill-being following the collision. Plaintiff's contention upon this appeal, if followed to its ultimate conclusion, that she is entitled to show the condition of the other passengers involved in the accident as indicating the severity of the collision and tending to support plaintiff's claim that she sustained her alleged injuries, would open the door to proof of the physical condition of each of the other passengers. By the same token, if defendant was allowed to dispute the injuries claimed by the other passengers, it would result in trying collateral issues, involving other passengers, and virtually trying a number of cases in the instant case. Obviously, such collateral matters are incompetent and should not be permitted in evidence before the jury.
The prejudicial effect of such evidence was further emphasized in the testimony of the witness, Milgram, for plaintiff. She testified, over specific objections made by defendant as to its competency, that there were policemen and firemen and a number of ambulances and taxicabs on the street in readiness for the passengers involved in the collision, and that these passengers were carried and handed over from one fireman to another. This type of testimony can have no relationship to the severity of the impact or the extent of plaintiff's injuries. It was another form of appeal to the sympathies and prejudices of the jury.
It appears that in the direct examination of plaintiff's witness, Margaret Cullenan, she identified exhibits 2, 4, 5 and 6, to which we have already alluded. In the redirect examination of this witness, plaintiff's counsel, exhibiting two daily newspapers which were marked for identification exhibits 7 and 8, inquired of the witness if the pictures appearing in the two newspapers correctly showed the condition of the cars involved in the accident. Vigorous objection was made to the display of the newspapers in the presence of the jury and the questioning of the witness concerning the pictures appearing therein. While these newspapers were not received in evidence, and the pictures in the newspapers were not shown to the jury, the court did permit such display of the newspapers and such examination of the witness. She also testified that there were many firemen and policemen around the scene. It is clear to us that the mere exhibition of the newspapers and the examination of the witness in respect thereto permitted an impression for the jury that the accident was of such serious widespread public interest as to warrant the newspapers printing the story and pictures of the accident. The newspapers being incompetent as evidence, plaintiff should not have been permitted to get indirectly before the jury any reference to the fact that such pictures appeared in the newspapers, and the fact that such pictures were like those in evidence as exhibits 1 to 6 inclusive.
In Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21, 26, where certain exhibits were held to be incompetent, this court said:
"The conduct of counsel for plaintiffs in exhibiting them in the presence of the jury was prejudicial to a ...