APPEAL from the Circuit Court of Cook County; the Hon. ALLEN
A. FREEMAN, Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from a judgment in favor of defendant upon a jury verdict finding him not guilty for plaintiff's injuries. Plaintiff contends the judgment was against the manifest weight of the evidence; and defense counsel's closing argument denied him a fair trial. The pertinent facts follow.
On April 24, 1974, defendant was driving within the speed limit west on Logan Boulevard when he struck plaintiff, age 6, injuring him. The time of the occurrence was approximately 4:30 p.m. and the weather was clear and dry. In the vicinity of the occurrence, Logan Boulevard consists of two eastbound lanes and two westbound lanes. On either side of the boulevard are grassy, tree-lined parkways.
Defendant observed neighborhood children playing in the parkways on prior occasions. It was not, however, fixed in his mind that children played in the area where the accident occurred. He was traveling in the right-hand westbound lane, approximately two car lengths, or 30 feet behind another automobile (the Tensor car). He first noticed plaintiff when plaintiff was 20 to 30 feet in front of him and about three feet off the curb into the street. He immediately slammed on his brakes and swerved to the left to avoid plaintiff; however, his left front fender did come into contact with plaintiff near the dividing line between the eastbound and westbound lanes. At the point of impact, defendant's vehicle was barely moving. There was no evidence of skid marks indicating excessive speed.
Plaintiff stated that he joined some other children playing ball on the south parkway. The ball had gone across the boulevard to the north parkway, and he went to retrieve it. He then started to run back across the boulevard, when he was struck.
The passenger in the preceding automobile, Maria Pawlas, testified that she and the driver first noticed plaintiff on the curb of the north parkway, 20 to 30 feet in front of their car. She asked the driver to move over to the next lane as it appeared that the child would dart into the street. When she turned around, she noticed that the child had moved into the street in front of the driver behind them.
During final argument, defendant's counsel stated that:
"The plaintiff was injured six years ago. The defendant had been under jeopardy for six years.
PLAINTIFF'S COUNSEL: I'm going to object to that. There is nothing in the evidence that he has been under jeopardy.
THE COURT: Disregard both of those comments, and sit down, counsel.
DEFENDANT'S COUNSEL: The lawsuit has been pending here since the year 1975, so don't throw it away. Do it right, do it fair. We can live with it. Thank you, ladies and gentlemen."
In response, plaintiff's counsel argued as follows:
"Now, with respect to the fact that this case has pended for five odd years, that's neither Mr. Lukas's fault nor the fault of the plaintiff; and I'm not too sure it's anybody's fault. But this case is being tried in its regular term. You file your lawsuit, and you wait. And we've ...