APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 28, 1971.
Plaintiff sued for personal injuries alleged to have been sustained immediately after alighting from a bus on which he had been a passenger. The jury returned a general verdict for defendant and answered two interrogatories one finding the bus driver not guilty of negligence which proximately caused plaintiff's injuries, and the other finding that plaintiff was not in the exercise of due care. The court denied plaintiff's motion for a new trial and entered judgment on the verdict, from which plaintiff has appealed. Plaintiff contends (1) that he was denied a fair trial by reason of the improper conduct of defendant's attorney, (2) that the special interrogatories were improperly worded, (3) that hearsay evidence was improperly admitted, (4) that the verdict was against the manifest weight of the evidence, and (5) that the court erred in dismissing with prejudice plaintiff's suit against the bus driver who had been joined as a defendant. A brief summary of the evidence follows.
On Wednesday, January 24, 1962, plaintiff left his employment at 401 North Wabash Avenue in the city of Chicago at approximately 3:10 P.M. Since it was payday, he walked to a nearby bank to cash his check and then began his trip home via C.T.A. bus routes. He rode three buses to arrive at the intersection of 80th Street and Kedzie Avenue at approximately 6:30 P.M. He testified that several long bus delays were responsible for the lateness of his arrival. He alighted through the rear exit door and noticed there was only 18 to 30 inches between the side of the bus and the curb which was covered with 30 inches or more of snow. He had started walking alongside the bus toward the front of it when it began to pull out. The side of the bus brushed his left shoulder, knocking him against the snowbank. His right leg slipped under the wheel of the bus and he was severely injured as the bus proceeded into the intersection. The only other eyewitness to the occurrence was one Moe Liss, a passenger was was behind plaintiff when the latter was going through the rear door. Liss testified that the snowbank along the curb was approximately three feet deep and that the space between the side of the bus and the curb was about 18 inches. He walked behind plaintiff alongside the bus. As the bus pulled out of the stop, "it careened because there was ice on the ground," and brushed both the plaintiff and the witness. Plaintiff lost his balance and "wound up under the rear wheel of the bus."
The bus driver testified that plaintiff was intoxicated at the time of the accident and that he became aware of plaintiff's condition at the 63rd Street terminal when he saw him board the bus; that he saw plaintiff bump into a post at the terminal and that when he attempted to board the bus, he missed the front door and almost fell to the pavement in front of the bus; that once on the bus, plaintiff stumbled toward the witness, almost fell on the fare box and dropped his transfer into the witness's hand and that as he walked to the rear, he stumbled and fell on several people seated in the long seat on the right side. Two passengers testified that plaintiff appeared to be intoxicated when he got on the bus.
The driver testified that at the intersection of 80th Street and Kedzie Avenue he stopped the bus 30 or 40 feet into the intersection in order to position the rear exit door on dry pavement south of the north curb of 80th Street; that the bus was at least four to five feet from any snow and that he waited at the bus stop until he saw the legs of those who had exited disappear in his rear view mirror. The foregoing is in substance the pertinent testimony on the issues here involved.
• 1 We proceed to a consideration of plaintiff's first point, that the improper conduct of defense counsel denied him a fair trial. In closing argument the defendant's attorney, over plaintiff's objection, argued to the jury as follows:
"And perhaps maybe you think I'm a little bit too much concerned with the employees. I'll tell you this, folks; there have been times I've spoken with people like yourselves, where our bus operators or an employee was negligent and I told him to give money damages, but when I find one of my men * * *."
In Panelle v. C.T.A., 31 Ill.2d 560, 202 N.E.2d 484, a similar closing argument was considered by the court. There the defendant's attorney argued to the jury that if the defendant were required to pay every claim, then "there isn't enough money collected in a year that we would have to pay out in claims in a month." The Supreme Court upheld the action of the trial court in granting a new trial, stating that nothing in the evidence called for a discussion of other claims and that counsel's remarks gave risk to inferences beyond the merits of the plaintiff's claim. The same rationale is applicable to the instant case. It was error for defense counsel to tell the jury what he had done in other cases having no relation or pertinence to the instant case.
• 2-7 In emphasizing the importance of the evidence pertaining to plaintiff's intoxication at the time of the accident, defense counsel said to the jury in closing argument:
"And I think you will agree with me that if a person is under the influence of liquor, he does not have the capacity or capabilities of exercising ordinary care."
Voluntary intoxication is not, per se, the equivalent of contributory negligence. Even where the evidence is overwhelming that the plaintiff was drunk at the time of the accident, such evidence does not establish contributory negligence as a matter of law. Being "under the influence of liquor" is merely a factor to be considered by the jury on the ultimate question of causation and it was error for defense counsel to suggest otherwise.
On this same theme defense counsel then stated:
"Counsel asked you to give him $62,000 and in the same breath he is asking you to put a premium on a man who gets drunk and intoxicated ...