APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. SIGMUND S. STEFANOWICZ, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 2, 1973.
In a wrongful death action brought by plaintiff, Rosemary Mulvey, individually and as administratrix of the estate of Thomas M. Mulvey, deceased, a jury in the circuit court of Cook County returned a verdict for the defendant, Illinois Bell Telephone Company. The Appellate Court, First District, affirmed (Mulvey v. Illinois Bell Telephone Co. (1972), 5 Ill. App.3d 1057), and the case is now before us pursuant to certificate of importance granted by the appellate court under Supreme Court Rule 316.50 Ill.2d R. 316.
The cause of action arises out of a head-on collision between two automobiles on Army Trail Road near its intersection with Swift Road in Du Page County at about 10:00 P.M. on July 8, 1963. The plaintiff's decedent, Thomas Mulvey, was driving eastbound on Army Trail Road (a 2-lane highway), and the other driver, Robert Owen, was driving westbound on the same road. As the two cars approached the intersection from opposite directions, Owen's car swerved into the eastbound lane and hit Mulvey's car after striking an unlighted sawhorse barricade bearing the legend "Illinois Bell Telephone Co." which had been placed on the highway as a prank by a 15-year-old boy. Mulvey later died from injuries sustained in the collision.
In their evidentiary depositions, Charles Hauhe III and Gregory Doyle, who were 15 years of age on the night in question, testified that they had left a friend's house at about 9:00 P.M. that night and were walking home in a westerly direction along the north side of Army Trail Road. As they approached the intersection of Swift Road, Hauhe noticed a yellow barricade in some weeds in the bottom of a ditch on the north side of the road. "Just for kicks" Hauhe removed the barricade from the ditch and placed it in the center of the westbound lane of Army Trail Road near the intersection. The boys waited beside the road for a short time and observed some traffic go around the barricade without incident. They then left and walked north on Swift Road toward their respective homes.
Robert Owen testified that as he approached the intersection he saw the lights of Mulvey's car approaching from the opposite direction at an estimated speed of 50 to 55 miles per hour. Owen first spotted an object in the road when he was about 150 to 200 feet east of it, at which time his speed was about 40 to 45 miles per hour. He did not take any immediate action to avoid the object because he "wanted to know what it was." Later, when he was about 60 feet from it, he applied his brakes and started to skid before hitting the barricade. The evidence established that the skid marks left by his car were 104 feet in length, starting about 60 or 70 feet east of Swift Road in the westbound lane and proceeding into the eastbound lane of Army Trail Road where the point of impact was estimated to be about 15 feet west of the intersection.
A patrolman who investigated the accident testified that there were no traffic signals at the intersection, although there were stop signs for Swift Road traffic to stop for Army Trail traffic. The speed limit for Army Trail traffic going through the intersection was 55 miles per hour. Another motorist, Jack Verdone, testified that at about 10:00 P.M. that night he was driving westbound on Army Trail Road and stopped at the traffic light at Route 53, which was about one mile east of Swift Road. While waiting for the light to change, he observed Owen's car turn west onto Army Trail Road from Route 53 and accelerate fast with "squealing tires." It was his opinion that as the car disappeared over the crest of the hill about a quarter of a mile down the road, Owen was driving about 70 or 75 miles per hour.
The question of ownership of the barricade and how it got in the ditch on the north side of Army Trail Road was not definitely established. Two witnesses who lived in the area testified that about four or six weeks prior to the accident, Illinois Bell personnel had used barricades of the same type as that in evidence while doing work on a telephone pole situated on the southeast corner of Army Trail and Swift Roads; e.g., at a point across the road to the south from the place where Hauhe and Doyle found the barricade. Several witnesses also testified that they had observed a barricade lying in the ditch on the north side of Army Trail Road for a number of weeks prior to July 8, 1963. However, another witness who lived in the area and drove by the intersection regularly testified that he had seen men doing work on the pole but had never seen the barricade before the night of the incident, when he observed it on the highway and drove around it. There was testimony on behalf of the telephone company that although work had been done on the telephone pole on the southeast corner of the intersection in March of 1963, no barricades were ever used on that particular job; that "men working" signs and other types of warning devices had been used instead; that barricades of the type introduced in evidence were used for buried-cable excavations or to divert traffic when men were working underground, but not when men were working above ground on poles such as the work done on the pole in question in March of 1963; that the telephone company sometimes rented barricades from another company for reasons of upkeep and loss from theft on the job; that rental barricades also bore the legend "Illinois Bell Telephone Co." on them; and that in the spring of 1963 a job involving open excavations where barricades of the type in evidence were in use had been done in Addison, Illinois, at a location several miles from the scene of the accident.
Plaintiff's wrongful death action was brought on behalf of herself and her daughter against Robert Owen and Illinois Bell Telephone Company, alleging as to Owen that he had negligently operated his motor vehicle, and as to Illinois Bell that it had negligently permitted its equipment to remain unattended in a place where it should have foreseen that it would be found and moved by children onto the highway resulting in injuries and death to persons traveling thereon. Charles Hauhe III who had placed the barricade on the highway, was not made a party to the suit. Near the conclusion of the eight-day trial, plaintiff's claim against Owen was settled, and the jury was instructed at the close of the evidence that Owen was no longer a party to the suit. The case was submitted to the jury on the claim against defendant Illinois Bell Telephone Company, and the jury returned its verdict in favor of the defendant and against the plaintiff.
On this appeal, as in the appellate court, plaintiff contends that the arguments of defendant's counsel in closing argument were so prejudicial and unwarranted as to require reversal for a new trial. We will consider each of these in some detail.
Prior to oral argument, the court determined that the evidence presented no issue as to contributory negligence on Mulvey's part, and accordingly, all tendered instructions on that matter were refused. However, plaintiff contends that this issue was nevertheless improperly brought to the attention of the jury by the following argument of defendant's counsel:
"Now, that was Owen's testimony, and you heard nothing else. Granted as Owen testified, everything happened so fast and it might have been hard for him to judge speed and so forth. But, ladies and gentlemen, when you consider those two cars coming up there, both of them approaching an intersection, each seeing another car approaching, particularly Owen and the driver of the other car, would not common sense tell you that if you were driving right up to the speed limit, you would have to slow down a little bit? Isn't that the way a reasonable person would drive coming up to an intersection?
If you stop to think about it, if either one of them Owen or Mulvey had used some care and slowed down as they were approaching that intersection even a little bit
MR. JENKINS: If your Honor please, the Court has ruled that there is no issue in this case of Mr. Mulvey's negligence. Counsel is going far beyond propriety and is being very, very unfair. ...