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Goldstein v. Hertz Corp.

NOVEMBER 29, 1973.

PERCY P. GOLDSTEIN ET AL., PLAINTIFF-APPELLEES,

v.

THE HERTZ CORPORATION ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ELMER N. HOLMGREN, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Percy P. Goldstein, both as administrator of the estate of his daughter, Esther B. Goldstein, and individually, brought this action against defendants in the circuit court of Cook County under the Wrongful Death Act for fatal injuries suffered by plaintiff's decedent, and individually for expenses incurred by him, arising out of a motor vehicle collision. Plaintiff, Ellen Sue Paul, also brought an action for personal injuries sustained in the same collision. A jury returned a verdict in favor of the father as administrator for $80,000; in favor of the father individually for $2,700; and in favor of Ellen Paul for $3,000. The trial court entered judgments on the verdicts in favor of the father individually and for Ellen Paul. However, the court entered a remittitur of $50,000 on the verdict returned in favor of the administrator pursuant to the statutory limitation on wrongful death actions then in effect, and entered judgment in favor of the administrator for $30,000.

The collision occurred when a vehicle operated by Bene A. Tanenbaum and in which plaintiff's decedent and Ellen Paul were passengers, was struck by a vehicle owned by defendant, The Hertz Corporation, and operated by its agent and co-defendant, C.B. Loveless. In a separate proceeding, Tanenbaum brought suit against both defendants for personal injuries sustained by her in the collision. In that case, a jury returned a verdict in favor of Tanenbaum for $14,000. The trial court, however, finding that Tanenbaum was guilty of contributory negligence as a matter of law, entered judgment notwithstanding the verdict in favor of defendants. Tanenbaum brought an appeal to this court. On this same date, we have filed our opinion in that case, ruling that the trial judge erred in finding that Tanenbaum was contributorily negligent as a matter of law. Tanenbaum v. Loveless and The Hertz Corporation (No. 57313, Nov. 1973), 16 Ill. App.3d 104.

In the instant case, defendants contend on appeal that the evidence of negligence on the part of Loveless and of due care on the part of Ellen Paul and plaintiff's decedent was insufficient to support the verdicts; that the closing argument of administrator's counsel was so prejudicial as to require a new trial; that the trial court erred in ordering the jury to disregard certain testimony; and that the damages awarded to the administrator and to Ellen Paul were excessive.

The plaintiff administrator has filed a cross-appeal contending that the trial court erred in entering a remittitur of $50,000 on the jury verdict in the wrongful death action. He maintains that the statutory limitation of $30,000 on such actions then in effect was unconstitutional.

The collision occurred on October 17, 1965, at about 9:00 P.M. at the intersection of State Street and Walton Place in the City of Chicago. Since the facts concerning the accident were given in some detail in the companion Tanenbaum opinion, in this opinion as regards the circumstances of the accident, we shall set forth only the testimony of two witnesses who did not testify in the Tanenbaum case.

Willie T. Scott, driver of a Checker Cab involved in the accident, testified that he was proceeding west on Walton, a one-way street, when he stopped at the stop sign at State Street. The Tanenbaum vehicle was to his right and was also stopped at the stop sign. At that intersection, State is a preferential throughway permitting two-way, north-south traffic. Scott noticed that the State Street traffic was stopped for a red light at Oak Street, a short block north of Walton. At this time Scott began to cross the intersection simultaneously with the Tanenbaum vehicle. When his cab was halfway across the intersection, Scott first observed defendants' vehicle coming toward them. It was travelling at a "terrific speed." Defendants' vehicle struck the Tanenbaum vehicle, which in turn was thrown against Scott's cab.

Ellen Paul testified that she was a passenger in a convertible automobile driven by Bene Tanenbaum. She was riding in the center front seat. As they approached State she noticed a cab to their left. After their vehicle stopped at State, and as it crossed the intersection, Ellen Paul did not look to the right but looked straight ahead. Her next recollection was the impact; it occurred when they were nearly at the west curb of Walton. She did not see defendants' vehicle prior to the collision.

Defendants' first contention is that there was insufficient evidence to support the jury verdicts. They maintain that there was no evidence of defendant Loveless' negligence, nor of due care on the part of Tanenbaum's passengers, Ellen Paul and plaintiff's decedent.

As has been noted, we held in Tanenbaum that the trial court erred in allowing defendants' motion for judgment notwithstanding the verdict. In so holding, we found that the evidence was sufficient to pose a question for the jury as to the negligence of Loveless and the due care of Bene Tanenbaum, the operator of the vehicle. In that light, we shall consider defendants' argument that the evidence was insufficient to show due care on the part of Tanenbaum's passengers.

• 1 When the due care of the driver of the passenger's vehicle is a question of fact for the jury, there is a fair inference that the passenger who does nothing is in the exercise of due care. (Eggimann v. Wise (1964), 56 Ill. App.2d 385, 206 N.E.2d 472; Gillan v. Chicago, N.S. & M. Ry. Co. (1954), 1 Ill. App.2d 466, 117 N.E.2d 833.) Generally, the passenger, having no control over the management of the vehicle, is only required to exercise such care as the exigencies of the situation require; unless the passenger sees an obvious danger which the driver might not see, there is no duty to warn. (Smith v. Bishop (1965), 32 Ill.2d 380, 205 N.E.2d 461.) There is no rule of law prescribing any particular act to be done or omitted by a passenger, and the question of his due care is usually one for the jury. Leonard v. Murphy (1957), 13 Ill. App.2d 39, 140 N.E.2d 537. Also see Siebens v. Konicek (1969), 108 Ill. App.2d 300, 247 N.E.2d 453.

• 2, 3 In Tanenbaum we held that Bene Tanenbaum's actions, in stopping and looking in both directions several times while crossing the intersection, presented an issue of fact for the jury as to her due care. We therefore conclude that the question of the due care of her passengers, Ellen Paul and plaintiff's decedent, was properly presented to the triers of fact. We also believe that the jury's findings that Loveless was negligent and that the passengers were in the exercise of due care were not contrary to the manifest weight of the evidence.

Defendants' second contention is that the closing argument of counsel for the administrator was so improper and prejudicial as to require reversal. In support of this argument, defendants cite nine remarks made by counsel during argument.

• 4 Before considering the specific comments, we believe that several general observations are in order. In closing argument counsel is not limited to a repetition of witness' direct examination, but may present the evidence in a light most favorable to his case. (Bruske v. Arnold (1969), 44 Ill.2d 132, 254 N.E.2d 453.) Attorneys must be allowed in closing argument to make reasonable comments upon the evidence. (Walls v. Jul (1969), 118 Ill. App.2d 242, 254 N.E.2d 173.) The latitude of permissible remarks may be wider when these remarks are made in response to direct remarks of opposing counsel (Perfect v. Kaley (1970), 130 Ill. App.2d 61, 264 N.E.2d 430), and in urging conclusions counsel should be accorded broad latitude. Tuskey v. Callos (1969), 112 Ill. App.2d 213, 250 N.E.2d 524.

• 5 In the instant case the closing arguments on behalf of the plaintiffs and defendants were quite lengthy, comprising more than 79 pages of the record. Moreover, the general tone of the argument by all parties was highly combative and often far from detached reason. While we do not find all the cited remarks of counsel to be completely proper, neither can we say that they were so prejudicial as to require a new trial. Furthermore, the trial court cautioned the jury that remarks of counsel were not evidence, and the attorneys during argument stated that their comments were ...


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