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Principato v. Rudd

OPINION FILED NOVEMBER 24, 1981.

JAMES PRINCIPATO, JR., PLAINTIFF-APPELLEE,

v.

HENRY RUDD ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendants Henry Rudd, Marion Rudd, Rudd Container Company, and Anthony Reda appeal the granting of a new trial to plaintiff James Principato, Jr. Plaintiff filed a one-count negligence complaint concerning a truck collision. After a jury verdict for defendants, the trial court granted plaintiff's motion for a new trial. We granted defendants leave to appeal under Supreme Court Rule 306. (73 Ill.2d R. 306.) Plaintiff also appeals the trial court's denial of his motion for judgment notwithstanding the verdict.

Plaintiff James Principato, Jr., was an electrician for Advance Neon Sign Company. He was injured on May 17, 1974, while repairing a sign on Western Avenue in Chicago. Plaintiff was driving a 30-foot truck with a snorkel unit that extended about 42 inches beyond the truck when in a fully closed position. Plaintiff pulled the truck into a driveway, blocking the parking lane on Western Ave. The snorkel unit extended into the near traffic lane when closed, at a height of about 9 to 13 feet above the ground. Thus, cars passed under the extended boom. It is disputed whether or not a red flag was attached to the rear of the truck, and whether or not plaintiff placed a rubber warning cone in the street.

Plaintiff worked on the sign while sitting in the snorkel unit, raising it into the air. After he completed the repairs, plaintiff lowered the snorkel unit and locked it into place. He then noticed a handprint on the sign and briefly climbed a ladder affixed to the side of the truck to wipe the print.

Anthony Reda, defendant, was employed as a truck driver for defendant Rudd Container Company. While plaintiff was on the ladder, a truck driven by Reda hit a portion of plaintiff's truck that extended from its body. Plaintiff was thrown into the air and landed on his back on the truck. He was taken to a nearby hospital.

The degree of plaintiff's injuries was a matter greatly disputed at trial. It is undisputed that soon after the accident, plaintiff left his job at Advance Neon Sign Company and opened a small restaurant. This resulted in a loss of reported income. Two medical witnesses for plaintiff testified to injuries which weakened his back, precluding heavy work and bending. These injuries might be permanent. The defense did not call any medical witnesses.

In closing argument, plaintiff's counsel asked for approximately $500,000 in damages. The jury returned a verdict for defendants. The trial court subsequently granted plaintiff's motion for a new trial.

I

• 1 Initially, we dispose of plaintiff's contention that the trial court erred in denying his motion for judgment notwithstanding the verdict. Employing the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504), we cannot say that the evidence, when viewed in the light most favorable to defendants, so overwhelmingly favors plaintiff that no contrary verdict based on the evidence could ever stand. Indeed, substantial issues of fact were presented to the jury, including whether or not plaintiff used a red warning flag and a rubber warning cone. The trial court properly denied plaintiff's motion for judgment notwithstanding the verdict.

II

Plaintiff's motion for a new trial was based on certain trial errors and on newly discovered evidence. The order granting plaintiff's motion stated that plaintiff was granted a new trial on the issues of liability and damage. We therefore review all the grounds for a new trial urged by plaintiff in this court and properly preserved by the post-trial motion.

A.

The trial errors urged by plaintiff fall into three groups: (i) statements by defense counsel in the opening statement that were not supported by the evidence; (ii) defense counsel's prejudicial references to workmen's compensation during cross-examination; and (iii) the prejudicial remarks of defense counsel in closing argument. Plaintiff's theory is that the cumulative effect of these errors, especially where the evidence was close, justifies the granting of a new trial.

Plaintiff's complaints about defense counsel's opening statement are, for the most part, unsubstantiated by the record. Counsel is given a certain latitude in the opening statement as to his expectation of what the evidence will prove. (Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App.3d 1110, 1124, 401 N.E.2d 1246.) Defense counsel's opening statement fell within this range. Of the six statements specifically claimed as error by plaintiff, four were substantially correct statements of the evidence adduced at trial. One other statement was clearly wrong, but plaintiff's counsel made the same misstatement in his opening statement, and it appears that both ...


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