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Allen v. Yancy

MARCH 29, 1965.

DONALD ALLEN, A MINOR, BY HIS FATHER AND NEXT FRIEND, WILLIE R. ALLEN, PLAINTIFF-APPELLANT,

v.

WILLIE YANCY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. WILLIAM J. WIMBISCUS, Judge, presiding. Reversed and remanded.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

In this action for personal injuries which was brought by Willie R. Allen on behalf of his minor son, Donald, the plaintiff appeals from a judgment entered upon a jury verdict in favor of the defendant. The plaintiff contends that the verdict is against the manifest weight of the evidence and that it was induced by a prejudicial, attempted impeachment of one of the plaintiff's witnesses.

Since no question concerning damages is raised here, the following summary of the facts is limited to evidence on the issue of liability. The incident in question occurred on Calumet Avenue, between 43rd and 44th Streets in Chicago, opposite a small playground on the east side of Calumet where children were playing. Children were also playing ball on Calumet Avenue near 43rd Street and adults and children were sitting on the curbs and porches along Calumet. The incident took place at about six o'clock on the evening of April 20, 1956, at which time it was still daylight. The defendant, who was familiar with the neighborhood and had observed the children playing ball in the street near 43rd Street, was driving south on Calumet at a speed which he testified to be between 10 and 15 miles per hour. It is uncontroverted that cars were parked along both sides of the street, except immediately in front of the playground, where, according to one of the plaintiff's eyewitnesses, there were no parked cars and according to another there were some parked cars. At one point north of the scene of the accident there were two double parked cars. The defendant testified that he slowed his speed when he passed these cars, but the plaintiff's eyewitness, Reverend James L. Tukes, testified that the defendant was traveling about 15 to 20 miles per hour without slowing up before striking the plaintiff.

As the defendant approached the playground, the plaintiff ran or trotted out into the street from the east side; at the same time another child started to cross the street at the same point, but from the west side of the street. The defendant testified that he saw neither boy and that all he knew "was the impact from my right, to the right of my car and I stopped and I put on my brakes." One eyewitness said the left front of the car struck the plaintiff; another testified that the plaintiff got completely across the street and was struck by the front of the defendant's car; Reverend Tukes testified that the right front fender or bumper struck the plaintiff.

[1-5] We do not believe that the jury's verdict was against the manifest weight of the evidence. Courts of review ordinarily will not disturb the verdict of a jury who are in a superior position to determine the credibility of the witnesses and the proper weight to be given to their testimony. Manifest weight has been defined as that weight which is clearly evident, clear, plain and indisputable. Hocker v. O'Klock, 24 Ill. App.2d 259, 164 N.E.2d 225. In order for the verdict of the jury to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the jury must be clearly evident from the evidence, or that the jury's verdict is palpably erroneous and wholly unwarranted by the manifest weight of the evidence. Vasic v. Chicago Transit Authority, 33 Ill. App.2d 11, 180 N.E.2d 347. Whether the defendant was negligent under the facts summarized above was a matter for the jury. We cannot say that a conclusion opposite to that reached by the jury was clearly evident from the evidence or that the verdict was palpably erroneous. Hence we conclude that the verdict was not against the manifest weight of the evidence.

However, after a careful search of the record, we think that the jury was influenced in its conclusion by an improper examination and certain remarks made by the defendant's counsel which deprived the plaintiff of a fair trial. This improper examination arose in connection with the defendant's unsuccessful attempt to impeach Reverend Tukes, one of the plaintiff's eyewitnesses, by the use of a statement which he was alleged to have made to the police after the occurrence. At the outset of his cross-examination of Reverend Tukes, the defendant's counsel asked to see a paper which he said the plaintiff's counsel had been using. It appears that this was a request for what the defendant's counsel believed to be a copy of the police report. Nowhere in the record is the exact character of this document made clear, however. After a brief discussion among counsel and the court concerning the nature of the document in question, the defendant's counsel asked Reverend Tukes if he had seen the alleged police report in the office of the plaintiff's attorney. The witness admitted that he had seen the report, but he denied making the various statements which the defendant's counsel quoted or paraphrased from what appears to be in his copy of the alleged report. Finally the defendant's attorney improperly remarked, "I am going to have this police officer in here. I know at times a man cannot remember, but the memory does strange things." Shortly thereafter, the defendant's counsel asked the witness, apparently quoting from the alleged police report, "Could this accident have been avoided. Did the police ask you that?" The plaintiff objected and there followed a second discussion concerning the plaintiff's document which was alleged to be the police report. Finally the court said, "Let this be between you two. You will have to clear that up." The defendant's counsel then improperly stated, "I will expect the original police report and bring in the police officer who took this statement, and we will have the Reverend and those that were there and will bring them tomorrow, and the police officer who made it. He signed this statement which he gave the police. This is your copy and the original will be there."

Again quoting from his copy of the alleged police report, the defendant's attorney continued the cross-examination of Reverend Tukes, as follows:

Q. Did the police ask you, Reverend, could this accident have been avoided, and you answered "yes?"

A. I said I didn't know.

Q. All right. Did they ask you anything else that you would like to tell Counsel that is there, and you answered, "the only thing I can truthfully say is that the driver was not responsible." Did you?

A. They didn't ask.

Having laid this as a foundation for impeachment, the defendant subsequently called three police officers as impeaching witnesses. The first officer, Charles Wilson, was asked if he brought the police report in response to a subpoena served on him. He testified that he had not done so because his search revealed that the report was not in the file where such reports are kept.

The second officer called by the defendant was Lieutenant John Coyle, one of the officers assigned to investigate the occurrence in question. Officer Coyle testified that he talked to the defendant after the occurrence and ...


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