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Bessette v. Loevy

OCTOBER 17, 1956.

MADELINE BESSETTE, A MINOR, BY A.F. BESSETTE, HER FATHER AND NEXT FRIEND, YVONNE MCAVOY AND CLARENCE D. MCAVOY, APPELLEES,

v.

ELEANOR LOEVY, APPELLANT.



Appeal from the Circuit Court of Cook county; the Hon. FRANK H. BICEK, Judge, presiding. Affirmed.

PRESIDING JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.

In this action the two plaintiffs, Madeline Bessette, a minor, and Yvonne McAvoy, respectively recovered verdicts for personal injury in the amount of $35 and $10,000. Plaintiff Clarence McAvoy recovered a verdict for $300 for property damage. Defendant's motion for new trial was denied and judgments entered on the verdicts. Defendant appeals.

The action arises out of a collision between the automobile in which plaintiffs were riding and defendant's car in the intersection of Wellington and Sawyer Avenues in Chicago. Plaintiff Yvonne McAvoy was operating the automobile east on Wellington Avenue, and defendant was operating her automobile north on Sawyer Avenue. Defendant's approach to the intersection would be from the right of plaintiff's car. Both streets in question were paved streets of approximately the same width. There was a "Slow" sign for eastbound traffic located on the south side of Wellington, west of the west curb of Sawyer. The cars collided in the intersection, the front of defendant's car coming in contact with the right side of the McAvoy car. Madeline Bessette, then four years old, was riding in the McAvoy car.

There were varying versions in the testimony of the witnesses as to which car first entered the intersection, defendant claiming that she had the right of way under the Motor Vehicle Act, because of her approach to the intersection from the right of the plaintiff's car.

Yvonne McAvoy testified that she was approaching Sawyer Avenue at about 20 miles per hour, and that she saw a sign saying "School" and applied her brakes, slowing down to about 10 or 15 miles per hour to cross the intersection. There was an apartment building at the southwest corner of the intersection. As she reached the intersection, she looked south on Sawyer Avenue and saw defendant's car coming north. At that time defendant's car was about 100 feet away. After starting to cross the intersection, she did not see the defendant's car again, because she was looking toward the school, which she was approaching.

Defendant testified that she stopped her car about 50 or 100 feet south of Wellington Avenue; that she started up again and had reached a speed of about 10 to 12 miles per hour at the time of the impact; and that her car and the McAvoy car entered the intersection at the same time. Defendant's version upon the trial differed from that given by her in a discovery deposition before trial, from which it appears that when she first saw the McAvoy car, it was already in the intersection, and she was at the intersection, and that she was not sure whether or not her front wheels had passed the intersection line.

After the collision, the McAvoy car came to a stop about 15 feet east of the east curb line of Sawyer Avenue, and defendant's car came to a stop at the northeast corner of the intersection.

No point is raised as to the size of the verdicts. Defendant seeks a reversal because of the ruling of the court on an objection to the final argument of counsel for defendant; the refusal to give an instruction tendered by defendant as to the right of way; and the ruling with respect to the proffer of evidence tending to impeach Yvonne McAvoy.

The record discloses that defendant's counsel in his final argument to the jury, referring to defendant, stated:

"When she reaches a point just about even with the south curb of Wellington Avenue, I don't know, and she doesn't know, she is not trying to tell you she was over the line or something; she was about at that line. When she reaches that point she sees for the first time the McAvoy car coming and she said it is in the same relative position; it is in the same relative position going east —

"Mr. Sullivan: I object to that. That is his testimony. Counsel wants everybody to believe it was the same as the other car and she said and admitted four or five occasions that the McAvoy car was at or in the intersection.

"The Court: The Court will sustain the objection and the Jury will disregard it."

This ruling is assigned as error. Plaintiff's objection to the argument was based upon the holding in Wellner v. New York Life Ins. Co., 331 Ill. App. 360, 365, and cases there cited, wherein this court said:

"The defendant is entitled to a fair trial, free from prejudicial conduct of counsel, who in an argument undertakes to supply facts, or an inference favorable to the ...


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