*1 merit, dis noted, clearly is without context contention Weinstein, 35 v. People the circumstances tinguishable present In relies. that case Ill.2d upon which “ * * find her before can prosecutor you stated to ” doubt.’ a reasonable had created guilty, you must say fails obviously here The statement (Emphasis added.) noted Weinstein, the supreme that condemned where approach some of improper 17 instances argument. have find no improprieties
We examined the closing arguments, could been for the verdict. responsible which jury’s detail, evidentiary We see no need to burden this with further opinion error law and further discussion no value. No precedential would have record, affirm the appears compliance we Court Rule 23. Supreme affirmed.
Judgment CRAVEN,
TRAPP JJ., concur. A. Estate Hope and as Adm’r of the Individually Sheley, Richard Deceased, Defendant- Sheley, Plaintiff-Appellee, Guy, Geraldine Appellant.
(No. Fourth 19, 1975. Distric t June 22, 1975. July denied Rehearing *2 SIMKINS, J., dissenting. P. (Ron- Lincoln Mills, of C. and Edwin Free,
Free and of Springfield, for appellant. Free, counsel), G. ald Olson and Edward W. Ltd., Associates, Mirza Harris, Lincoln, Harris & Jerome for appellee. Mirza, counsel), Bloomington (Jerome of the court: the opinion CRAVEN delivered Mr. JUSTICE verdict jury on the entered from a The defendant appeals of plain- death the wrongful against plaintiff her and favor struck being after shortly died intestate, tiff’s child who a 4-year-old trial us Whether are: (1) The issues before defendant’s car. directed verdict for a motions to defendant’s court erred in failing grant defendant was the verdict because and judgment court law; the trial whether (2) as matter negligence to alleged instruction pertaining defendant’s refusing give erred in mother; whether and (3) child’s of the deceased contributory a mis- failed improperly grant al- argument in his closing remarks counsel made plaintiff’s trial when available to relieve insurance was legedly implying *3 on defendant. be obligation might placed whatever a should directed verdict contends that her The defendant entered the verdict or judgment been granted have Defendant’s a matter of law. negligence as she was because she the speed no that was violating there was evidence that reasoning nor the child impact, she never saw law, prior traffic limit or any so, her, until passenger of the accident told even aware was occurred, there no act on her was unfortunate accident very a while find so as to make her hable could a from part which the child. for the death 4 in the town of New Holland a little after occurred
The accident the defen- clear. The P.M., good pavement dry visibility Tackman, driving one Mrs. was a car north on dant, feet (18 is a road moderate wide) carrying which narrow Route The the town New Holland. limit is through speed traffic to heavy defendant’s speed between 15 and MPH, place and various witnesses 30 northbound vehicle the inter- approached As the 30 MPH. Street, the a passenger Tackman) Pekin observed small (Mrs. section direction on side in a sidewalk east southerly running child not establish whether or evidence does not this the highway. that at no time did defendant testified she see the decedent. child. At a point approximatly 38 feet north of the intersection Route Street, and Pekin impact occurred between child and defen- dant’s automobile. one actually No wit- impact, saw but several nesses testified that heard a testified that im- they “thump” several mediately prior to the the child impact, alongside the road standing about 1 foot east the pavement, A to cross. State apparently waiting trooper who happened be cars several behind the driving testified that after the 5 feet impact, child’s body was approximately from the of the edge testified that highway. investigating trooper the defendant’s car film, was covered with road only place film was disturbed awas on the rear spot fender, approximately inches in front of the right rear 25 inches above bumper and ground Hedrick, level. Mr. one of the he who heard a which thump witnesses said like a blowout, was driving so.unded truck and was passing defendant’s car time going opposite direction at the he heard noise. He glanced in his rear view mirror and car veer saw defendant’s to the right immediately after The witness Sue hearing thump. Aldag testified that she also heard a at the time of the thump impact, and that she also saw the car swerve but could not whether this say occurred before or after the impact. The defendant that she did testified not swerve her car prior to or at the time of impact, pulled par- off the tially road thereafter. There evidence immediately was no defendant’s car left the Route paved surface of to or at prior time of the impact. In be inasmuch no summary said that may witness actually observed the between child and defendant’s impact car no one is certain how the accident Defendant occurred. argues must run into the rear fender of while automobile, contends defendant struck the child plaintiff while to avoid swerving testimony Hedrick’s truck. The was that truck was 8 to 8% feet in width, Route 10 was 9 feet in and each lane of There is no width. of the truck any portion evidence was over center line highway. decedent,
Richard father testified that he Sheley, was on home when the accident way Champaign his occurred and that He his wife was in of the child. stated that there charge frequent on Route 10 in and day and constant traffic out. He testified that *4 10, their to cross Route but frequently daughter allowed never they by unattended, after only herself and escorted her to the edge they testified that the follows, also Sheley was as pavement. “practice” the child returned from the side of the opposite road: when home she daughter
“When our would start would stand on the road, side of the east side hardroad, other of the and would always That was across hardroad. yell help for someone to her ‘Come to say around unless someone her there was practice home, Hope’.” go asked child in question that on
Nancy Sheley testified hand, by Hope She took across the friend. street with a play across she that walked to the comer and thought engaged was and home returned to their the street. then Sheley Mrs. the accident. notified preparing evening meal when be merely that defendant’s contention We do not agree and laws, traffic violating any been cause she not shown to have fact no question time, did there was not see the child at that any between was placed automobile for the of defendant’s jury. speed said Three witnesses MPH 30 MPH witnesses. and the various passenger the highway, the child 1 foot from standing sidewalk, and south on said was running that earlier shortly swerved car tire defendant’s there some point was evidence that at clear view in evidence show a side Photographs towards the of the road. knew defendant admits of the intersection and roadside and area, kept testified she and children resided that many young intersection; yet, children near lookout for special” young “extra the impact. after Whether saw the decedent until the defendant never fact, is a has been individual Kahn In jury. evidence matter is addressed on that James stated Co., questions the court Burton 5 Ill.2d care, alleged negligence, proximate another party’s one’s concerning are preeminently injuries of such injured party’s cause determine, finding and that a for the questions jury fact jury’s the evi weight the manifest against unless should not be set aside as to whether the defendant case, a real dispute In this there was dence. the time of the accident lookout at proper maintaining struck the child or tire child the defendant whether or not swerved denied the defendant’s quite properly ran into the car. the ver judgment notwithstanding directed verdict and for the verdict in view the evi dict and for & Peoria Eastern Co., Pedrick v. of this case. R.R. posture dentiary 494, 229 Ill.2d N.E.2d 504. instruction predicated upon offered an proposition
The the mother’s failure to properly super- the evidence demonstrated 31.08, instruction, IPI—Civil No. advised the vise child. the mother contributed to the negligently if found that cause of they decedent, preclude such mother would from par- death made. award any ticipating
366 it was upon
The trial court
this
and
appeal
refused
instruction
upon
is predicated
such was error.
tendered instruction
urged
Stat.
Rev.
the
of
2 of the
Death Act.
provisions
(Ill.
section
Wrongful
to
1971, ch.
of
entitled
70,
any person
2.) Contributory negligence
§
the
share in an
precludes
award does not relate to liability,
simply
the
and
recovery,
relative from
contributorily negligent
sharing
for such person.
amount of
not include
damages
compensation
shall
the
be im
on the
mother cannot
negligence,
any,
part
if
of
241;
511,
.2d
Cortesi,
to the
2
119 N.E.2d
Duffy
decedent.
v.
Ill
puted
423,
301.
Beurskens,
Rahn v.
66
213 N.E.2d
Ill.App.2d
to
instruction
By
language
applies
its
the tendered and refused
the
in
right
the
and the
to
damages
participate
amount
mother’s
damages
There is
made
appeal
award.
no contention
this
that the
upon
why
the
in
We see
by
any way
awarded
excessive.
no reason
jury were
this offered instruction does not
within the often stated rule
fall
the
evidence or
to the measure of
going
instructions
where
is not
must be
harm
amount awarded
excessive
viewed as
questioned
909;
406,
Aledo
246
Ry.
Butler,
less error.
Terminal
Co. v.
Ill.
92 N.E.
Sears,
Co.,
656,
108;
&
299
Roebuck
12
N.E.2d
Fugate
Ill.App.3d
Lemke,
Slovinski v.
IIl.App.2d 377,
Strasma v.
250
Beasley,
Furthermore, the defendant made no objection to submission 31.01, modified) instruction number plaintiff’s No. (IPI — Civil fix their rea which advised the award in amount “which will sonably father, mother, fairly compensate brother and sister the decedent for the pecuniary proved by loss evidence to resulted them this death of the decedent.” Having accepted instruction, it be may right said that defendant waived mother’s in object sharing proceeds judgment.
Upon appeal, defendant also complains that mistrial should have been declared when counsel made plaintiff’s remarks the closing arguments which referred to the purportedly presence The trial court wrote a on insurance. memorandum rul this issue in his ing post-trial motion his indicating made statement belief closing argument improper, but that was given response argument to defendant’s improperly for defen seeking sympathy court found that the dant. thus statements were provoked further that was cured any court’s error admonition to the jury reference to the arguments with Upon counsel. our review of record, agree ruling we the reasons assigned of the trial court. ruling
Defendant’s brief mentioned several other issues concerning nor not briefed issues were These propriety evidentiary rulings. Rev. (Ill. argued 341(e)(7) and are Rule waived. Court (Supreme the circuit Stat. 110A, The judgment ch. 341(e) (7)).) § Logan should be same affirmed. County affirmed. Judgment
SMITH, J., concurs. Mr. PRESIDING SIMKINS, dissenting: JUSTICE The mother This question. of the child on the charge is not near the case into or yard of a child unfenced from an wandering *6 a busy course of street. Rather the issue is the mother’s established conduct and supervision, recrossing and the involved “practice” street Or road. It is ac- knowing lack of alleged supervision, quiescence in the fact procedure question. which raises child to question the comer on the day either directed her and had or escorted her the street crossing across done so on previous occasions demonstrates her awareness dangers child, involved. She age, was also aware that the years endeavoring street, recross the waiting stand the road would beside for That, indeed, was the assistance. practice.
Whether Nancy Sheley was
and control
exercising proper supervision
over the
circumstances,
light of all the
attendant
facts
including
age and
capacity of
minor and the nature of
danger which the child exposed,
question of fact for the
jury. Payne v.
Kingsley,
Ill.App.2d 245, 207 N.E.2d
Strasma v.
Lemke, 111
Ill.App.2d
The defendant’s post-trial motion raised the ex- explicitly question of cessiveness of connection with the trial refusal to judge’s give instruction, and the failure to give instruction is assigned error here. Since the instruction goes only issue of damages seems to me that the refusal to meet on a predicated stringently applied technicality failure consisting of defendant to use one I magic word. would affirm on the issue of reverse liability, finding damages and remand new trial on that issue. It error to refuse the instruction.