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Gasiorowski v. Homer

OPINION FILED MARCH 28, 1977.

VERONICA GASIOROWSKI, PLAINTIFF-APPELLANT,

v.

FRED HOMER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MR. JUSTICE BUA DELIVERED THE OPINION OF THE COURT:

Veronica Gasiorowski brought suit for personal injuries allegedly suffered as a result of the negligent operation of a motor vehicle by the defendant, Fred Homer. The plaintiff, a pedestrian, was crossing Belmont Avenue between Lockwood and Long Avenues in Chicago when she was struck by the defendant's automobile. A jury returned a verdict in favor of the defendant, and in response to a special interrogatory indicated its finding that the plaintiff was guilty of contributory negligence. Judgment was entered on the verdict. On appeal from that judgment and the denial of her post-trial motion, the plaintiff-appellant contends that the trial court committed reversible error in three respects: (1) by its limitation of the scope of plaintiff's voir dire examination of prospective jurors regarding possible bias against pedestrians crossing streets in midblock, (2) by its refusal to permit the plaintiff to recall the defendant for further examination as an adverse party, and (3) by its refusal to admit certain proffered evidence as to the plaintiff's "habits of due care, industriousness, and sobriety." We find these contentions to be without merit.

As regards the first of these alleged errors, it is not argued that the plaintiff was completely denied any opportunity to question prospective jurors about their attitudes toward pedestrians crossing streets in midblock. It is clear that plaintiff's counsel, with the express permission of the court, drew the jurors' attention to the fact that this case involved a pedestrian struck by an auto as she was attempting to cross a street in midblock rather than at a pedestrian crosswalk, and then asked each juror whether there was anything about this situation which might prevent him from viewing the evidence in an open-minded and impartial manner. The trial court refused, however, to permit the plaintiff in this same vein to ask certain questions concerning the jurors' own related experiences. Specifically, the court did not permit the plaintiff to ask prospective jurors, (1) whether they had ever seen pedestrians crossing streets in midblock, (2) whether they, as pedestrians, had themselves ever crossed streets in midblock, and (3) whether, if they had as pedestrians crossed streets in midblock, they felt that their behavior on those occasions had been "reasonable." The plaintiff now urges that the court's refusal to permit questions (1) and (2) constituted reversible error.

• 1, 2 It is well established that limitation of voir dire questioning may constitute reversible error where its effect is to deny a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors. (People v. Lobb (1959), 17 Ill.2d 287, 161 N.E.2d 325; People v. Moore (1972), 6 Ill. App.3d 568, 286 N.E.2d 6; Turner v. Wallace (1966), 71 Ill. App.2d 160, 217 N.E.2d 11.) However, once such a fair opportunity is afforded, it lies within the trial court's discretion to deny further questioning on the matter. (Jines v. Greyhound Corp. (1964), 46 Ill. App.2d 364; United States v. Staszcuk (7th Cir. 1974), 502 F.2d 875.) And indeed, it may be serious error for the court to fail to cut off voir dire which becomes an attempt to indoctrinate or pre-educate jurors (Scully v. Otis Elevator Co. (1971), 2 Ill. App.3d 185, 275 N.E.2d 905; Osborne v. Leonard (1968), 99 Ill. App.2d 391, 240 N.E.2d 769; Christian v. New York Central R.R. Co. (1960), 28 Ill. App.2d 57, 170 N.E.2d 183) or to obtain a pledge as to how they would decide under a given state of facts, or determine which party they would favor in the litigation. Murphy v. Lindahl (1960), 24 Ill. App.2d 461, 165 N.E.2d 340.

• 3 In view of this statement of the law, we find that the trial court's action was not only within the bounds of sound discretion, but was eminently fair as well. While we agree that it was incumbent upon the trial court in this case to permit the plaintiff to adequately ascertain the attitudes of prospective jurors regarding pedestrians crossing in midblock, we are not convinced that the court failed to do so. Quite the contrary, the adequacy of the inquiry permitted by the court appears clearly from the record.

First, the examination of those jurors who indicated that they would not be biased in their decisions illustrates beyond a doubt that they understood the general nature of the factual situation involved and the thrust of counsel's inquiry into bias. The cases of veniremen O'Brien and Novak are typical:

"EXAMINATION BY PLAINTIFF'S COUNSEL OF VENIREMAN O'BRIEN

Q: Mr. O'Brien, you have heard when you were sitting in the back of the room the very brief statement of what this case was about, it that correct?

A: Yes.

Q: You understood it was a pedestrian crossing in midblock, an automobile involved and the lady was injured? * * * I had asked the other jurors whether the fact that this involves a pedestrian crossing in mid-block would affect their judgment in this particular case. In other words, do you have a preconceived idea before the case even starts or any evidence is introduced, as to who is right and who is wrong?

A: Nothing one way or the other.

* * *

EXAMINATION BY PLAINTIFF'S COUNSEL OF VENIREMAN NOVAK

Q: Mr. Novak, how about yourself, anything about this business of the pedestrian in the ...


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