Appeal from the Circuit Court of Cook County; the Hon. RAYMOND
P. DRYMALSKI, Judge, presiding. Reversed and remanded.
Rehearing denied January 15, 1968.
Plaintiff appeals from a judgment of the Circuit Court of Cook County, Illinois, in favor of the defendant in an action for personal injuries.
The plaintiff was driving in a westerly direction on Willow Road near the Toll Road in Cook County, Illinois, on March 5, 1959. It had been snowing for some time and there was snow or slush on the highway. As she reached the west end of the Willow Road overpass of the toll road, her automobile swerved to the left, turned around facing back in an easterly direction, traveled a distance of fifty feet, and went off the road, rolling over and down an embankment. She was thrown from the automobile and when help arrived, she was lying in a ditch with the automobile on top of her. She suffered a severe injury to her right leg.
Guardrails had been erected on the south side of the overpass, while on the north side only I-beams had been installed to which about half of the guardrails had been attached. The plaintiff testified that prior to the swerving of her automobile, she felt the right front wheel hit something and that after traveling about fifty feet and turning around, she saw opposite to her left front wheel a guardrail extending into the road about one or two feet. She testified that she did not know what the wheel hit, but that she assumed it was the guardrail.
The testimony concerning the presence of loose guardrails on the shoulder of or on the road itself is conflicting. Mr. Siars, who was driving in an easterly direction on Willow Road and who observed the plaintiff's automobile leave the road, testified that he had crossed the road to help the plaintiff and that he did not remember seeing anything on the road or on the shoulder, other than snow. Mrs. Siars testified that she walked over to the northern edge of the road and did not see any guardrails on the ground.
Mr. Juern, a member of the ambulance crew which came for the plaintiff, testified that he did not remember whether there were any loose guardrails on either shoulder. Mr. Simpkins, the other member of the ambulance crew, testified that he did not see any guardrails on the shoulder of the road.
Sergeant Milton Chasen, a policeman who came to the scene, testified that there were loose guardrails lying on the north side of the highway; that in covering the accident he parked his car in the middle of the road and had to step over guardrails to get to the shoulder of the road. Officer Hoard, another policeman, testified that he observed guardrails on the shoulder of the road west of the scene of the occurrence.
Mr. Keating, who observed the plaintiff's automobile leave the road, testified that there were guardrails lying on the shoulder, that they were thrown all over; that some may have been only two inches from the road, and that one would have to walk over them on the shoulder of the road. Finally, the plaintiff's husband testified that on a visit to the scene of the occurrence with Mr. Moehling, a neighbor and friend, on the day of the occurrence, he and Mr. Moehling saw guardrails lying around.
The plaintiff alleged that Universal Delta, who was engaged in erecting and installing posts and guardrails pursuant to an agreement entered into with the Illinois State Toll Highway Commission, negligently permitted guardrails to remain upon the traveled portion of the public highway, failed to inspect, failed to warn motorists, failed to fasten the guardrails, and failed to construct the highway properly, and that as a result of one or more of the acts charged the plaintiff suffered serious injuries.
The jury returned a verdict in favor of the defendant. The trial court denied the plaintiff's motion for a new trial and entered judgment for the defendant, from which the plaintiff prosecutes this appeal.
The plaintiff argues that the case was a close case and that the verdict of the jury resulted from prejudice engendered by the improper conduct of the defense counsel in that (1) he commented in closing argument upon the failure of plaintiff to call Mr. or Mrs. Moehling to testify, when he himself had called Mrs. Moehling to testify as a witness for the defense; (2) he argued and referred in his closing argument to facts not in evidence and to evidence which had been stricken by the court; (3) he commented on the exclusion of a certain witness; (4) he cross-examined certain witnesses by use of an inadmissible police report; and (5) he failed to offer evidence to prove assertions in his opening statement.
The plaintiff's husband testified that he and Mr. Moehling had gone to the scene of the occurrence on the day after the occurrence and that they had both seen guardrails on the shoulder. The defendant called Mrs. Moehling as a defense witness, and she testified that she and her son had accompanied plaintiff's husband and Mr. Moehling. She was not questioned about the presence of guardrails.
In his closing argument defense counsel argued that "you are entitled to believe, ladies and gentlemen, and you are entitled to understand that because counsel (for the plaintiff) did not produce these people they would not substantiate . . . that Mr. and Mrs. Moehling would testify that there were no guardrails on the ...