Appeal from the Superior Court of Cook County; the Hon.
EVERETT PROSSER, Trial Judge, presiding. Reversed and remanded.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 3, 1963.
Judgment was entered against defendant on a jury verdict for $25,000 in a suit for personal injuries. The primary point raised on defendant's appeal is that the closing argument to the jury by plaintiff's attorney was so improper and prejudicial as to require a new trial.
A contention of this character cannot be considered in the abstract, but only in relation to the situation as it existed in the trial when the argument was made. We shall, therefore, refer briefly to the evidence.
Plaintiff *fn1 was the sole occurrence witness on her own behalf. She testified that at about 1:00 a.m. she had boarded an eastbound CTA bus at Mayfield and 63rd Streets in Chicago, intending to go to work in a restaurant owned by her and her husband at 6325 S. Central. There were two other passengers on the bus.
Plaintiff testified further that about a half block from Central, she rose and said, "Central, please" to the driver, and stood in the front of the bus waiting for it to stop; that the bus stopped at a well-lighted corner by a bank, and the door opened; that she started to get off and as she got down to the last step she felt a big jerk, the driver moved the bus "real fast" and she was thrown off to the pavement, sustaining injuries.
The bus driver and a passenger were occurrence witnesses on behalf of defendant. The driver testified that after he had stopped the bus he opened the door and plaintiff got off; that he was stopped by a red light and waiting for it to turn green; that plaintiff had walked 15 to 20 feet east when she stopped at a manhole cover on the sidewalk and slumped to the ground "as if she squatted," and gave a yell; that he ran to help her up and was assisted by policemen who came in a few seconds; that her shoe heel was broken and stuck in the manhole cover; that he did not move the bus from the time she started to alight until she had fallen.
The bus passenger testified that he was sitting in the second or third seat from the front on the right-hand side next to the window; that when the bus stopped he saw a lady get off; that after she got off the door closed and the bus started to pull away when she hollered; that she was on the sidewalk.
It can thus be seen that the evidence was in sharp conflict as to the facts bearing on the central issue of negligence. In consequence, the jury might have determined this issue either way, and, in further consequence, it is important that the jury not be influenced by any improper conduct by counsel so prejudicial as to deprive either party of a fair trial. (Jacobson v. National Dairy Products Corp., 32 Ill. App.2d 37, 43-44, 176 N.E.2d 551; Mattice v. Klawans, 312 Ill. 299, 143 N.E. 866.)
Near the outset of his closing argument, plaintiff's attorney commented on the burden of proof instruction which would be given to the jury by the court. In this regard he told the jurors: "If at the conclusion of the evidence you have any doubt in your mind, you are entitled to resolve those doubts in favor of Alice Bulleri."
Upon objection by the attorney for defendant, the court said, "You may proceed." More specific objection then being made, the court again, in effect, overruled the objection by directing plaintiff's attorney to continue.
The latter then made this statement to the jury: "If you folks have any doubts in your minds regarding any facets of this case you are entitled to resolve them in the favor of Alice Bulleri if you think the greater weight of evidence is in her favor."
That a plaintiff's burden of proof does not involve the resolving of doubts in his favor is a proposition so fundamental as not to require citation. The first statement quoted above and the expanded one made after objection are both erroneous and highly prejudicial statements of this proposition of law. By lending its weight to these repeated misstatements, the court, in effect, adopted them as its instructions to the jury on this point of law, and thereby joined with plaintiff's attorney in impinging upon defendant's right to a fair trial.
Later in his argument to the jury, plaintiff's attorney read from what purported to be a transcript of testimony. *fn2 Timely ...