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Walters v. Taylor

OPINION FILED MARCH 12, 1976.

ELEANOR WALTERS, PLAINTIFF-APPELLANT,

v.

ROBERT TAYLOR, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding. MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In this personal injury action, a jury found for the defendant in a general verdict and answered a special interrogatory that plaintiff was guilty of contributory negligence. On appeal, plaintiff contends that (1) the court erred (a) in not granting a mistrial because of remarks made by defendant's counsel during his opening statement; and (b) in admitting the opinion testimony of a defense witness; and (2) the verdicts were against the manifest weight of the evidence.

The record disclosed that plaintiff was a pedestrian, crossing Addison Street from north to south in the east crosswalk of Odell Avenue, when she was struck by defendant's westbound automobile. Plaintiff testified that when she was at the northeast corner of the intersection, she observed defendant's vehicle approaching in the inner lane, about a full city block away. She then started to cross Addison, and when she was about three or four feet into the street she again looked to her left and saw defendant's car "coming to the next corner." (The exhibits show that the next street was a half city block to the east.) She continued to walk south, and when she was near the center line of Addison she was struck by the front of defendant's car.

Defendant testified he was driving westbound in the inner lane of Addison at a speed of between 18-22 m.p.h. He first saw plaintiff standing at the northeast curb when he was one to one-half car lengths from the east crosswalk. He stated that plaintiff then darted into the street in a southeasterly direction and into the path of his vehicle. He applied his brakes, and at the time his car struck her he wasn't sure whether she was walking or running but stated that she may have been in the crosswalk. The impact threw her upon the hood of his car, which came to a stop in the intersection and still in the inner westbound lane.

Stanley Lichon, called as a witness by defendant, stated that he was driving north on Odell and had come to a stop for the stop sign at Addison. He observed plaintiff walking to the southeast curb of the intersection and then he saw defendant's car approaching the intersection at a speed of about 20-25 m.p.h. Defendant's car was then approximately three or four houses east of the east crosswalk — each house lot being 30 to 40 feet wide. Then, as the witness turned to look in the other direction, he heard a "thud" and, upon looking back, saw defendant's car come to a stop in front of him with plaintiff on the hood.

OPINION

Plaintiff first contends that certain remarks of defendant's counsel in his opening statement were improper and prejudicial. The jury was told that immediately after the occurrence Lichon had said to defendant, "What's she trying to do, commit suicide?" This remark was objected to, and a motion was made that the jury be instructed to disregard it. The trial judge, in denying a mistrial, stated he could not determine the admissibility of the comment at that time because all of the facts were not then available, but he did instruct the jurors to disregard the remark and also told them that statements of counsel were not to be considered as evidence but merely what the attorneys believed the evidence would be. Nonetheless, plaintiff contends that the prejudicial error of the remark was not cured by admonishing the jury to disregard it, and that a mistrial should have been granted. Defendant, on the other hand, argues that the statement should have been admitted under the excited utterance exception to the hearsay rule but, in any event, that the corrective action of the trial judge removed any possible prejudicial effect of the remark.

• 1 The determination of whether statements of counsel are prejudicial is within the sound discretion of the trial court, and its ruling will not be disturbed unless there is a clear abuse of that discretion. (Johnson v. Cunningham, 104 Ill. App.2d 406, 244 N.E.2d 205.) The reason for this rule is found in the superior opportunity of the trial judge to observe the impact of the comments on the jury. While remarks of trial counsel may be of such a prejudicial nature as to require a reversal despite corrective action of the trial judge (Gordon v. Checker Taxi Company, 334 Ill. App. 313, 79 N.E.2d 632), from our review of the record, we believe the circumstances here are more closely analogous to those in Martin v. Kralis Poultry Co., 12 Ill. App.3d 453, 297 N.E.2d 610, and in other cases wherein the corrective action of the trial court was held to be curative of objectionable remarks of trial counsel. See, e.g., Johnson v. Chicago Transit Authority, 11 Ill. App.3d 16, 295 N.E.2d 573; Daemicke v. Chicago Transit Authority, 5 Ill. App.3d 758, 284 N.E.2d 362; Debolt v. Wallace, 56 Ill. App.2d 380, 206 N.E.2d 469; Vasic v. Chicago Transit Authority, 33 Ill. App.2d 11, 180 N.E.2d 347; McCorkel v. Pennsylvania R.R. Co., 32 Ill. App.2d 193, 177 N.E.2d 369.

In the instant case, it appears that the court told the jurors, prior to opening statements, that the attorneys would tell them "what they think the evidence is going to be" and also that "what they say, of course, is not evidence." Furthermore, defendant's counsel, as he began his opening statement, said "I should caution you that what I say is not evidence." The record further reflects that an objection to the remarks was tentatively sustained pending a final determination of their admissibility; that the jury was instructed to disregard the statement and was again cautioned that statements of attorneys were not to be considered as evidence; and, finally, we note that the remarks were not repeated. In view thereof, we cannot say that the trial judge, who was in a better position to observe the effect of the statement on the jury, abused his discretion in refusing to grant plaintiff's motion for a mistrial.

Because of this finding, we need not consider defendant's contention that the statement was admissible as an excited utterance exception to the hearsay rule.

Plaintiff next contends that the court erred in the admission on redirect examination of an opinion by defendant's witness, Lichon, on an issue of ultimate fact. On direct examination, the witness estimated defendant's car to have been between three to four house lots east of the intersection when he observed plaintiff standing at the corner and that the house lots were 30 to 40 feet wide. On cross-examination, plaintiff developed from a prior statement given by the witness that he had said the car was "a couple or a few hundred feet away" at this time. On redirect examination, defendant's counsel — ostensibly to rehabilitate the witness, read from the same prior statement as follows:

`Q. Were you also asked this question and did you make these answers, on page 22.

`Q. Do you think he was east of Octavia?

A. No, I don't believe he would be that far away.

Q. How many house lengths would you say the westbound car had been east of that intersection when you last saw the woman on the ...


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