On November 20, 1964, plaintiff was injured when the truck which he was driving on the Indiana tollway collided with trucks owned by defendants Consolidated Freightways Corporation of Delaware and Spector Freight System, Inc., of Illinois. Subsequently, plaintiff brought an action against defendants in Minnesota. In answers to special interrogatories, the jury apportioned 10 percent of the negligence to plaintiff and 90 percent to defendants (60 percent to Consolidated and 30 percent to Spector), but the trial court ruled that plaintiff could not recover because the Indiana contributory negligence law applied.
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In Schwartz v. Consolidated Freightways Corp.
The question of whether a new trial should be granted because of an alleged improper argument of counsel rests almost wholly in the discretion of the trial court, and this court will reverse only for a clear abuse of discretion. Kramer v. Kramer,
First, there is no indication in the record which defendant has provided to this court
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that defendant sought corrective instructions before the jury retired. We have held in numerous cases that, in the absence of an argument which is so outrageously flagrant that the trial court should act on its own motion, a party who fails to request corrective instructions before the jury retires waives any later claim that the statements of opposing counsel were so improper as to justify a new trial. See, Pelzer v. Lange,
Second, we cannot determine from the record how strong or how weak each party’s evidence was, whether defense counsel overstepped the bounds of propriety, or to what extent the trial court gave corrective instructions. As to the importance of these matters in determining prejudice, see Kramer v. Kramer,
supra;
Colgan v. Raymond,
Third, it is of some relevance that a special verdict was used. In a case involving a claim of misconduct in closing argument, we stated, “By their nature special interrogatories remove from the jury the temptation to exercise or engage in passion, bias, or prejudice. That is one
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of the purposes for using special verdicts.” Kramer v. Kramer,
In summary, we have concluded that although parts of the closing argument of plaintiffs counsel may have been objectionable, defendant has not sufficiently shown the need for a new trial.
Affirmed.
Notes
The record on appeal consists of a transcript of the closing argument by plaintiff’s counsel and of a statement of the case prepared by the trial court under Rules 110.04 and 110.05, Rules of Civil Appellate Procedure, for the prior appeal.