Appeal from the Circuit Court of the Fifteenth Judicial
Circuit; the Hon. ROBERT L. BRACKEN, Judge, presiding. Judgment
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 19, 1965.
A complaint consisting of two counts charging negligence on the part of the defendant, Loren O. Wilson, was filed by the plaintiffs. One count alleged injuries to Carl F. Hoffman, the other count to his wife, Edna G. Hoffman, plaintiffs herein. The defendant's answer contained a general denial of all of the material matters. The jury's verdict found the defendant not guilty, the trial court denied plaintiffs' motion for a new trial, and this appeal follows.
Plaintiffs have raised ten points of error allegedly committed in the trial of the cause. They assert that defense counsel was guilty of improper argument in his closing statement to the jury; six more of the alleged errors relate to the cross-examination of one of the plaintiffs and the direct examination of a doctor for the defense; another assignment of error concerns an instruction; the ninth assignment is directed toward a conversation between the judge and jury after commencement of the jury's deliberations; the final point is that the verdict of the jury was manifestly against the weight of the evidence.
The negligence averred arose out of an automobile collision which took place in Dixon, Illinois, on Christmas Day, 1961. The plaintiffs, with Carl Hoffman driving and his wife seated beside him, were stopped on West Third Street in preparation for a right-hand turn into the driveway entrance of their daughter's home. The road was covered with packed snow and ice and it was dusk. It had snowed during the night and the plows had created a one-foot snow embankment along the curbs. Just twenty feet to the east was a viaduct. The defendant, upon entering this viaduct, noticed the plaintiffs' car for the first time and applied his brakes. The evidence is in conflict as to whether or not the plaintiffs' car had either its lights on or its turn signal operating. The defendant's car struck the rear of plaintiffs' car, and, according to plaintiffs' version, their car moved sixty to sixty-five feet. Defendant's version was that his car moved five feet after the collision and plaintiffs' car was about 10 feet beyond his when it came to a stop. Defendant testified that his speed was fifteen to twenty miles an hour and Carl Hoffman testified that defendant was traveling fifty miles an hour. As a result of the impact, Carl Hoffman complained that he received a cervical spondylosis and a lumbar spondylosis. Mrs. Hoffman was treated as a clinical patient following release from the hospital and had an uneventful recovery.
The first error urged by plaintiffs is that counsel for the defendant in his closing statement made improper remarks to the jury. Since a court reporter was not present, there is no transcript of the argument before us. However, plaintiffs' attorney attached to his post-trial motion an affidavit which purports to set forth the substance of the allegedly improper remarks. Without going into the propriety of such a procedure, suffice it is to say that "alleged improper remarks of counsel in argument to the jury, not preserved in the transcript of the proceedings on the trial, but sought to be presented on an ex parte affidavit of opposing counsel, or included in an affidavit on a motion for a new trial, will not be considered by the reviewing court." ILP, Appeal and Error, Sec 516. See also, Augustine v. Stotts, 40 Ill. App.2d 428, 189 N.E.2d 757.
During the trial, Carl Hoffman testified on direct examination that the symptoms of his injuries were headaches, soreness in the back of his neck and nausea. On cross-examination, he was asked if he had ever experienced any of these symptoms prior to this accident and he answered that he had not. He further stated that he had never had prior medical treatment, nor did he recall being injured previous to this accident. Counsel for the defense then brought to light the fact that in March, 1957, he had suffered a fractured L-1 vertebra; that he was treated by one Dr. Edward Murphy; that he had received two thousand dollars under the Workmen's Compensation Act for the injury; and that in 1948 and again in 1961, the year of the accident, he had been a patient at Hines Hospital, where he experienced headaches and nausea. Counsel for plaintiffs made one objection, or remark, during this cross-examination:
"Q. Look at this paper marked defendant's Exhibit 1, and tell me if that refreshes your recollection or memory as far as the fractured vertebra is concerned?
Mr. Nichols: I don't understand the materiality of this, is Mr. Gunner taking the position the injury in this case is an aggravation. That would make no difference.
The Court: I think he can show it.
A. I don't recall ever seeing this, I never did."
Later, during the defense portion of the case, Dr. Murphy, defendant's witness, was questioned on direct examination about the fractured vertebra of 1957. Another objection was made, in the following context:
"Q. How long was Mr. Hoffman under your care for this ...