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05/29/87 Lawrence Friedland, v. Allis Chalmers Company of

May 29, 1987

LAWRENCE FRIEDLAND, PLAINTIFF-APPELLEE

v.

ALLIS CHALMERS COMPANY OF CANADA ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

511 N.E.2d 1199, 159 Ill. App. 3d 1, 110 Ill. Dec. 879 1987.IL.708

Appeal from the Circuit Court of Cook County; the Hon. Jerome T. Burke, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Defendants appeal from a $400,000 judgment entered against them following a jury trial on plaintiff's personal injury complaint arising out of an automobile accident. Plaintiff sued defendant Rowecliffe, the driver of the car which struck him, and Allis Chalmers Company of Canada, Rowecliffe's employer. On appeal defendants contend: (1) plaintiff's counsel's repeated instances of misconduct were highly prejudicial and denied defendants a fair trial; (2) the trial court's refusal to instruct the jury on the plaintiff's failure to mitigate his damages was reversible error; (3) the trial court erred in denying defendants' motion for a new trial on all issues where multiple evidentiary errors denied defendants a fair trial; (4) the trial court erred in denying defendants' motion for judgment notwithstanding the verdict or, alternatively, for a new trial because the jury's verdict was against the manifest weight of the evidence.

We affirm.

At trial the following pertinent testimony was adduced. Plaintiff testified that on April 5, 1981, he was driving on the Dan Ryan Expressway northbound to the Kennedy Expressway. He had travelled in the left lane approximately a mile to a mile and a half. Through no fault of plaintiff, defendant Rowecliffe collided with the rear of plaintiff's car. At the time of the collision, plaintiff had slowed down almost to a stop due to traffic conditions. He further testified that Rowecliffe was travelling at approximately 45 miles per hour at the time of impact.

Rowecliffe's testimony presented a contradictory version of the events leading up to the accident. Approximately one mile before that accident, he was travelling 55 miles per hour in the extreme left lane. As he proceeded north, he noticed plaintiff's car "straddling the line" directly 1 1/2 car lengths in front of him. Plaintiff was partially in the extreme left lane and partially in the inside center lane. Plaintiff continued to move to the extreme left lane and Rowecliffe took his foot off the accelerator. He saw plaintiff "slam" on his brakes and he put on his own brakes. At that time, the impact occurred. Additionally, Rowecliffe testified that he was unfamiliar with the expressway. Further, he was lost and knowingly travelling in the wrong direction with the intention of turning around where the traffic was less congested.

David Watson was a passenger in Rowecliffe's car. Watson testified that Rowecliffe was indeed lost and knowingly travelled in the wrong direction. As Rowecliffe was proceeding in the left lane, Watson noticed plaintiff's car partially in their lane. Just prior to the collision, he felt the car decelerate and he saw defendant apply his brakes.

The Chicago police arrived at the scene. Both plaintiff and Rowecliffe entered the squad car. Rowecliffe testified that neither he nor plaintiff was asked his version of how the accident happened. Rowecliffe did not hear plaintiff relate his version to the officers of what happened. However, after Rowecliffe left the squad car, plaintiff remained in the car with the officers. Plaintiff testified that Rowecliffe was present in the squad car while he related his version of the accident and Rowecliffe remained silent.

Opinion

Defendants contend that numerous remarks made by plaintiff's counsel during trial prejudiced defendants' right to a fair trial. The comments at issue include: (1) suggestions that defendant suborned perjury; (2) portrayal of defense counsel as shrewd and calculating; (3) gratuitous criticism of defense counsel's trial skills; (4) improper references to insurance during voir dire ; (5) improper references to defense counsel as being part of a large law firm; (6) closing arguments which were replete with facts not in evidence; and (7) misstatements of law during closing arguments.

Plaintiff's counsel did attempt to cast doubt upon defendants' case in chief; however, to suggest that plaintiff's counsel alluded to defendants suborning perjury is a strained reading of the record. Furthermore, at the time the remarks were made, defense counsel raised no objection. As a consequence, any error arising from the remark was waived. (Lindroth v. Walgreen Co. (1950), 407 Ill. 121, 94 N.E.2d 847.) ...


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