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Duff v. Ewing

JUNE 18, 1965.

BENJAMIN D. DUFF, PLAINTIFF-RESPONDENT,

v.

CHARLES P. EWING, DEFENDANT-PETITIONER.



Petition for leave to appeal from the Circuit Court of Peoria County; the Hon. R. BURNELL PHILLIPS, Judge, presiding. Affirmed.

STOUDER, J.

This is a petition for leave to appeal from an order of the Circuit Court of Peoria County, granting Plaintiff's, Respondent's motion for a new trial.

Respondent commenced his action for personal injuries against Petitioner (Defendant in the trial court) arising from a year end collision between a motor vehicle operated by Petitioner and one operated by Respondent. A trial was had before a jury which returned a verdict for Petitioner. Respondent filed a post-trial motion alleging error in the giving of certain instructions and that certain cross-examination of Respondent by Petitioner was not germane and was designed to inflame and prejudice the jury. The trial court granted Respondent's motion for a new trial and it is from this order that Petitioner appeals.

The only questions raised by Petitioner on appeal are that the trial court erred as a matter of law in granting a new trial in that: a party cannot complain of instructions where he has not previously objected at the conference on instructions; or where any errors which may exist are harmless and non-prejudicial and where the instructions taken as a whole fairly apprise the jury of the applicable law; and that the cross-examination complained of was germane and not calculated to inflame or prejudice the jury. Respondent argues that an order granting a new trial should not be disturbed unless there was a clear abuse of discretion by the trial court.

As has been often stated in cases such as Thomas v. Weber, 14 Ill. App.2d 562, 145 N.E.2d 128 a court of review will not disturb the decision of a trial court on a motion for a new trial unless an abuse of discretion by the trial court is affirmatively shown. The trial court having had the opportunity of considering the conduct of the trial as a whole is in a position to consider the effect of errors which may have occurred and the fairness of the trial to both parties.

Much attention is given by both parties as to the matter of instructions given by the court. We do not feel it necessary to go into the matter of the propriety of the instructions or whether Respondent's objections thereto were timely inasmuch as it is not necessary to a determination of this appeal.

With respect to the cross-examination of Respondent complained of in the post-trial motion, the series of questions involved is as follows:

Q. (by attorney for Petitioner) Now, Mr. Duff, from the abrasions that you received in this accident around your face they have all healed up and left no scars, is that right?

A. Yes, sir.

Q. Mr. Duff, have you ever been involved in a previous accident where you received injuries?

A. Yes, sir.

Q. Were you involved in one in Moline in 1957?

A. Yes, sir.

Q. Did you receive any ...


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