{ "id": 3524224, "name": "ANTHONY BROWN, Plaintiff-Appellee, v. G & M DISTRIBUTORS, INC., Defendant-Appellant", "name_abbreviation": "Brown v. G & M Distributors, Inc.", "decision_date": "1984-03-09", "docket_number": "No. 3\u201483\u20140244", "first_page": "435", "last_page": "441", "citations": [ { "type": "official", "cite": "122 Ill. App. 3d 435" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "30 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2625535 ], "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0346-01" ] }, { "cite": "33 Ill. App. 2d 406", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5234635 ], "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0406-01" ] }, { "cite": "56 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3414752 ], "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0873-01" ] }, { "cite": "33 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2870285 ], "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0406-01" ] }, { "cite": "65 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3326151 ], "pin_cites": [ { "page": "850" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0847-01" ] }, { "cite": "69 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3240210 ], "year": 1978, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0336-01" ] } ], "analysis": { "cardinality": 699, "char_count": 13281, "ocr_confidence": 0.755, "pagerank": { "raw": 9.019396109421783e-08, "percentile": 0.503735739033434 }, "sha256": "86f53cfbc68bea2bde7b4a12e950bf1d8a1d80457d2b36b05817b0054bafe13e", "simhash": "1:9d41cff4383ebd77", "word_count": 2231 }, "last_updated": "2023-07-14T18:37:51.597464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANTHONY BROWN, Plaintiff-Appellee, v. G & M DISTRIBUTORS, INC., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nThis case arises from a collision between a car driven by an employee of the defendant, G & M Distributors, Inc. (G & M), and a motorcycle driven by the plaintiff, Brown. The collision occurred at the intersection of Fremont and Henderson streets in Galesburg. G & M\u2019s car was partially in the left eastbound lane of Fremont and partially in the left westbound lane of Fremont while attempting to make a left turn onto Henderson in order to go north. Two cars in the left westbound lane of Fremont were unable to proceed because G & M\u2019s car was partially in their lane. Brown was in the right westbound lane of Fremont traveling west. Brown was struck by G & M\u2019s car upon entering the intersection. There was testimony which suggests that Brown was traveling between 20 to 35 miles per hour into the intersection and did not slow down as he entered the intersection. Also, there was testimony that G & M\u2019s car did not have its left-turn signal turned on. A jury found G & M\u2019s driver negligent, but also found Brown 10% contributory negligent. G & M raises six issues on appeal.\nIn the first issue, G & M asks whether the jury was properly instructed. G & M notes the trial court refused to include in the jury instructions language from three sections of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95\u00bd, pars. 11 \u2014 601, 11 \u2014 701, 11 \u2014 801, respectively). It is reversible error to refuse to give an instruction which is supported by some evidence when the omission deprives the party tendering the refused instruction of a fair and impartial trial. (Malavolti v. Meridian Trucking Co. (1979), 69 Ill. App. 3d 336, 344; Mooney v. Etheridge (1978), 65 Ill. App. 3d 847, 850.) G & M contends that \u201cthe failure to instruct the jury properly with respect to applicable statutory provisions denied the defendant a fair trial in that the jury, if properly instructed, could have concluded that there was either no fault on the part of the defendant or that there was a greater percentage of fault attributable to the plaintiff.\u201d\nThe instant case does not involve instructions which entirely omit any reference to statutory duties. Rather, here, the lower court used selected passages of three sections of the Illinois Vehicle Code, sections 11 \u2014 601, 11 \u2014 701 and 11 \u2014 804 (Ill. Rev. Stat. 1981, ch. 95\u00bd, pars. 11 \u2014 601, 11 \u2014 701, 11 \u2014 804), respectively, proffered by Brown, but refused to use passages of sections 11 \u2014 601, 11 \u2014 701 and 11 \u2014 801 proffered by G & M. The trial court gave plaintiff instruction No. 13, based upon section 11 \u2014 601(a), which provided as follows: \u201cNo vehicle may be driven upon any highway in this State at a speed which is greater than reasonable and proper with regard to traffic conditions, the use of the highway, or endangers the safety of any person or property.\u201d (Ill. Rev. Stat. 1981, ch. 95%, par. 11 \u2014 601(a).) G & M objected because the instruction omitted the following language of section 11 \u2014 601: \u201cThe fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection ***. Speed must be decreased as may be necessary to avoid colliding with any *** vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.\u201d (Ill. Rev. Stat. 1981, ch. 95%, par. 11 \u2014 601(a).) G & M\u2019s instruction No. 16 contained the above-quoted language. The omitted passage explicitly creates a duty of all drivers to slow down upon entering an intersection under certain circumstances. The trial court refused to use the statutory language because the court believed no such duty existed. \u201cWhere an instruction is peremptory it must inform the jury of every material question of fact in controversy, and *** should be framed *** so as to properly inform the jury of its legal effect.\u201d (Ryan v. Monson (1961), 33 Ill. App. 3d 406, 422.) In the instant case, the court failed to instruct the jury that every driver (i.e., Brown) has a duty to decrease speed when approaching and crossing an intersection as may be necessary to avoid colliding with another vehicle and that the failure to slow down, under the circumstances of this case, is a breach of that duty which may be considered with other facts and circumstances in determining extent of a party\u2019s negligence. Therefore, the plaintiff\u2019s instruction No. 13 was improper.\nG & M also objected to plaintiff\u2019s instruction No. 12, based upon section 11 \u2014 701, which provided as follows: \u201cUpon all roadways of sufficient width, a vehicle shall be driven on right half of the roadway ***.\u201d (Ill. Rev. Stat. 1981, ch. 95%, par. ll-701(a).) Brown argues that this was an appropriate instruction because the statute \u201cobligated [the driver of G & M\u2019s] car to keep to the right of the center of the roadway. The jury could have found [the driver] violated that statute and that violation could have been negligence.\u201d G & M points out that subsection (c) of section 11 \u2014 701 explicitly exempts a driver from the above obligation and allows a driver to cross the center line to make a left turn. Consequently, the instruction submitted by the court could have allowed the jury to find that G & M\u2019s driver violated the statute, when in fact, the driver did not violate the law. G & M also argued to the trial court that portions of section 11 \u2014 801 should have been read to the jury. Section 11 \u2014 801 explicitly instructs a driver to occupy the extreme left lane when preparing to turn left. Plaintiff\u2019s instruction No. 12 incorrectly states the law and undoubtedly misled the jury. Therefore, the instruction was also improper. (Graves v. Wornson (1978), 56 Ill. App. 3d 873, 879.) We have reviewed the record and find no other given instructions which could have corrected the omissions and misstatements in plaintiff\u2019s instructions Nos. 12 and 13. Consequently, the errors are reversible.\nBefore turning to the second issue, this court would like to comment on Brown\u2019s arguments that G & M\u2019s car had no right to be in the intersection because section 11 \u2014 804 states that no turn can be made without a turn signal and that the green light gave Brown \u201cthe right of exclusive possession of the intersection.\u201d Therefore, Brown concludes, Brown was under no duty to look out for other cars or to slow down. To begin, we are unaware of any law which grants a \u201cright of exclusive possession\u201d of an intersection - under any circumstances and Brown does not cite any such law to this court. The court in Ryan v. Monson (1961), 33 Ill. App. 2d 406, 422, has noted \u201c \u2018 \u201cit has been held consistently that a right of way is not an absolute right and it cannot be asserted regardless of circumstances, distance, or speed.\u201d \u2019 \u201d Brown\u2019s arguments and conclusion, above, cannot be accepted by this court.\nThe second issue is whether the trial court ruled incorrectly on certain objections to evidence and argument. Because the reversal based upon the first issue necessitates a new trial, the complained of errors may not again arise. However, to be sure, we shall evaluate the questions and comments of Brown\u2019s attorney. Brown\u2019s attorney, despite several sustained objections by G & M, repeatedly questioned investigative officer Kirby concerning the failure of certain occurrence witnesses to inform Officer Kirby of the speed of Brown\u2019s motorcycle as it entered the intersection. Under similar circumstances, in Morgan v. Rogers (1975), 30 Ill. App. 3d 346, 351, the court found counsel\u2019s conduct wholly indefensible and not in good faith because the jury could have been led to believe the objectional information was harmful to opposing counsel\u2019s case. Moreover, in the instant case, none of the occurrence witnesses had yet testified in the trial. Brown should not have been allowed to impeach testimony that was not yet presented to the jury. Brown, on appeal, attempts to justify the questions as necessary to counteract misconduct of G & M in the opening statement, wherein G & M\u2019s counsel told the jury they would be presented with testimony that Brown traveled at 30 to 50 miles per hour. Since the case had been tried once before, G & M knew there would be no such testimony. G & M\u2019s attorney explained that the statement was the result of a typographical error in his notes, and apologized to the jury for the error during closing argument. Courts have allowed otherwise improper comments during closing argument where the comments were invited by opposing counsel\u2019s own improper statements during closing arguments. However, we have not been made aware of any decision which allowed an attorney to ask improper questions and make improper comments during the questioning of witnesses in order to counteract a misstatement made by opposing counsel during opening statement.\nG & M also objected to comments made by Brown\u2019s attorney during G & M\u2019s questioning of Mr. Mason, a passenger on Brown\u2019s motorcycle. G & M asked of Mason, \u201cYou are not sure whether or not he was even moving?\u201d Brown\u2019s attorney\u2019s objection was \u201cI object to that; your Honor he has given him his answer. He tried to shut out the horror of the impending death.\u201d The comment of \u201cimpending death\u201d appears to be an improper attempt to prey upon the emotions of the jury. We do not subscribe to Brown\u2019s explanation that the comments were simply excusable manifestations of \u201chuman emotions involved in the exchange.\u201d\nLastly, the record contains an interesting colloquy wherein Brown\u2019s attorney attempted to impeach Mr. Strader with a prior statement. G & M demanded that Brown lay the proper foundation by apprising the witness of the time and place of the statement, the names of persons present and the statement. In the presence of the jury, Brown\u2019s attorney glibly retorted that \u201cthe witness may know exactly what I am talking about. If he does, I don\u2019t have to do all the legal stuff. Let\u2019s get down to the human part of this.\u201d Brown\u2019s attorney\u2019s statement was not simply improper, it was inexcusable. The trial court did not and could not have rectified the impropriety of the statement by admonishing the jury. In the presence of judge, jury and observers, Brown\u2019s attorney ridiculed a basic aspect of a trial \u2014 the rules of evidence.\nThe third issue is whether the conduct of Brown\u2019s attorney in closing argument was improper. Brown\u2019s attorney argued that \u201cthe doctor was making sawdust out of a healthy bone.\u201d The doctor drilled a few holes into Brown\u2019s hip in order to insert pins to support his injured hip. The statement was improper because it did not state or refer to facts in issue and served to unfairly bias the jury by appealing to the emotions of the jury.\nIssues four, five and six can be decided summarily. They are stated as follows: (4) Whether certain impeaching evidence was improperly excluded; (5) Whether G & M\u2019s attorney should have been able to use a flip chart in closing argument; (6) Whether G & M\u2019s offer of proof with respect to the impeaching of Terry Mason should have been accepted and defendant should have been allowed to cross-examine Terry Mason about the telephone conference he had with paralegal O\u2019Connor. The scope of cross-examination and the use of a flip chart during closing argument are matters within the sound discretion of the trial court. After reviewing the record, we cannot find that the trial court abused its discretion.\nFor the reasons set forth above, the judgment of the lower court is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nSCOTT, J., concurs.", "type": "majority", "author": "JUSTICE HEIPLE" }, { "text": "JUSTICE BARRY,\nspecially concurring:\nI agree with the results reached and most all of the observations of the majority, and, by my view, a fair trial was impossible. Proper intervention by the court may have cured the adverse situation and circumstances presented early in the trial, but I am at a loss to determine how so, short of ordering a mistrial early on.\nI would place the primary blame upon counsel for the defense. The defense obviously has known the facts of this case very well for some eight or nine years; the case has been tried fully before, appealed twice before; one of the three defense witnesses\u2019 testimony was in fact read into the record from the previous trial; and defense counsel misstated anticipated evidence in his opening statement, both with regard to plaintiff\u2019s speed and the color of the traffic light control at the intersection. I trust the defense will not introduce error so as to create another opportunity for a mistrial when this matter is retried. The plaintiff\u2019s questionable self-help tactics will then be unnecessary as a retort.\nI expect the participants will recognize what is proper professional behavior during the course of the new trial. It is unfair to their clients who have paid with their time and money to do otherwise, as they have here for a span of many years.", "type": "concurrence", "author": "JUSTICE BARRY," } ], "attorneys": [ "Duncan B. Cooper III, of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.", "Joseph T. McGuire, of Perz and McGuire, of Chicago, for appellee." ], "corrections": "", "head_matter": "ANTHONY BROWN, Plaintiff-Appellee, v. G & M DISTRIBUTORS, INC., Defendant-Appellant.\nThird District\nNo. 3-83-0244\nOpinion filed March 9, 1984.\nRehearing denied April 11, 1984.\nBARRY, J., specially concurring.\nDuncan B. Cooper III, of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.\nJoseph T. McGuire, of Perz and McGuire, of Chicago, for appellee." }, "file_name": "0435-01", "first_page_order": 457, "last_page_order": 463 }