Appeal from the Circuit Court of Cook County; the Hon. ALFRED
J. CILELLA, Judge, presiding. Reversed and remanded.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Rehearing denied August 16, 1965.
An action to recover damages for wrongful death was brought by Mary Alice Owen, administratrix for the estate of her husband, Decius Owen, occasioned by the alleged negligence of defendant, Willett Truck Leasing Corporation, in leasing a defective truck. From a judgment entered on a jury verdict for plaintiff, defendant has taken this appeal. No questions are raised on the pleadings or the damages.
Defendant's theory is that the trial court erred in failing to grant either a mistrial or new trial in view of the numerous prejudicial errors committed during the course of trial by plaintiff's counsel, the cumulative effect of which was to deprive defendant of a fair and impartial trial. Defendant further contends that the trial court should have directed a verdict for it, or in the alternative, ordered a new trial, on the basis that plaintiff failed to adduce any evidence sustaining her cause of action.
Plaintiff maintains that the verdict is consistent with the manifest weight of the evidence, that no prejudicial error was committed and, accordingly, that the judgment should be affirmed.
Decius Owen died on September 26, 1955 when he was found pinned against a loading dock behind his unattended truck, about 11 a.m., at the Ken Warehouse and Cartage Company, located at Roosevelt Road and Sioux Line R.R. tracks. On the morning of September 26 Webb-Lynn leased for the day from defendant a 1955 Chevrolet truck weighing about 7,800 pounds. Webb-Lynn dispatched the decedent in this truck to the Ken Warehouse to pick up a load of paper skids weighing about 5,000 to 6,000 pounds. Decedent had completed loading the truck. There were no eye witnesses to the occurrence.
Plaintiff called as her witness one James Fotopoulis who, on the day in question, was a dispatcher in the office of Ken Warehouse. He testified that he heard a scream, ran out to the dock and saw decedent pinned between the rear of the truck and the dock. The truck was on a slight grade adjoining the loading dock with the engine running. He entered the cab, depressed the clutch with his left foot, put the truck in gear and drove it forward several feet. He then parked the truck on level ground, turned off the engine, engaged the hand brake and put the truck in gear. He saw the decedent lying on the ground and called for help. When asked on direct examination what the condition of the hand brake was as he moved the truck forward, he answered that he did not recall. Plaintiff's counsel then was allowed by the court to show to the witness a signed statement he had given to the police in October. After reading the statement he said that he did recall events of the occurrence. Asked then whether he recalled what he did with the emergency brake, he answered: "Must have removed it."
Officer James Forrestal of the Chicago Police Department Accident Prevention Bureau, called by plaintiff, testified that he arrived at the scene with officer McMahon and proceeded to take photographs, to conduct tests of the truck's hand brake and to complete his official accident report. He noticed nothing unusual about the hand brake and determined from his operation of the truck and the tests he performed that the hand brake functioned perfectly. A fire department ambulance and emergency crew then arrived and decedent was removed to St. Luke's Hospital.
Louis Bilinski, the safety director of defendant, and his assistant, Alvin H. Haase, after notification of the accident, came to the scene to investigate. In the presence of fire department captain Andrew J. Schubert, they examined the truck and tested the hand brake on a steep grade. Haase drove the truck to a nearby ramp and parked it facing upward. The engine was turned off and left in neutral gear, and the hand brake was engaged. Schubert entered the truck to observe the hand brake while the others shook the vehicle. The truck remained on the ramp for 10 to 15 minutes and then was parked facing the opposite direction for the same test. Nothing unusual was noticed as to the functioning of the hand brake by Schubert or Haase.
The truck and hand brake were also examined and tested by Richard Tucker, service manager of Chevrolet Division, who found nothing defective or unusual. He determined that the hand brake was in good working order. Following these tests the truck was driven to the Webb-Lynn plant by an unknown person and later that afternoon returned empty to the scene of the occurrence.
James B. Swift, auditor and safety director for Webb-Lynn, came to the scene later with a Mr. Carvin from the Illinois Institute of Technology on behalf of Lumberman's Mutual, the insurance carrier of Webb-Lynn. Lumberman's is now claiming a lien for their workmen's compensation payments. The police, fire department and other witnesses had all departed prior to Swift's arrival. Swift observed Carvin inspecting the truck. It was again parked on a ramp and the hand brake set. He was in the cab and noted that Carvin set the emergency brake and "it slipped off."
There being no eye witnesses to the occurrence, plaintiff's case was dependent upon circumstantial evidence that sought to prove decedent had engaged the hand brake, and that such hand brake was defective and released itself. To sustain her cause of action, therefore, plaintiff was required to show by such circumstantial evidence that the deceased properly engaged the hand brake, that the hand brake was defective at the time here involved, and actually released itself, and that such defect was the proximate cause of the injuries from which plaintiff's decedent lost his life.
Defendant contends that prejudicial errors were committed which deprived it of a fair trial. We have repeatedly held that where the liability is sufficiently close, so that the jury might reasonably have returned a verdict for either party, the trial must be conducted in an orderly manner so that the jury will not be improperly influenced. Jacobson v. National Dairy Products Corp., 32 Ill. App.2d 37, 176 N.E.2d 551 (1961); Mattice v. Klawans, 312 Ill. 299, 143 N.E. 866 (1924); Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21, 57 N.E.2d 216 (1944). The question posed, therefore, is whether the possibility of prejudice caused by conduct of plaintiff's counsel was so great as to entitle defendant to a new trial.
The errors alleged by defendant are that plaintiff's counsel (1) argued facts to the jury which were not in evidence; (2) offered exhibits known to be incompetent; (3) elicited testimony based on unproved exhibits; and (4) impeached and cross-examined ...