{ "id": 2679413, "name": "Elaine Havlovic, Plaintiff-Appellant, v. Michael J. Scilingo, Defendant-Appellee", "name_abbreviation": "Havlovic v. Scilingo", "decision_date": "1972-09-20", "docket_number": "No. 54185", "first_page": "918", "last_page": "925", "citations": [ { "type": "official", "cite": "7 Ill. App. 3d 918" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "163 N.E. 17", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "331 Ill. 322", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5210031 ], "opinion_index": 0, "case_paths": [ "/ill/331/0322-01" ] }, { "cite": "29 N.E. 899", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "140 Ill. 486", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5806944 ], "opinion_index": 0, "case_paths": [ "/ill/140/0486-01" ] }, { "cite": "58 A.L.R.2d 1008", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "134 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill.2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716524 ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0293-01" ] }, { "cite": "256 N.E.2d 459", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill.App.2d 117", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583492 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0117-01" ] }, { "cite": "263 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill.App.2d 466", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2743260 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/129/0466-01" ] }, { "cite": "21 N.E.2d 148", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "300 Ill.App. 472", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3235347 ], "opinion_index": 0, "case_paths": [ "/ill-app/300/0472-01" ] }, { "cite": "134 N.E. 36", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "10 Ill.App.2d 10", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5156219 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/10/0010-01" ] }, { "cite": "398 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177186, 6176251, 6177317, 6177037, 6176399, 6176147, 6176534, 6176663, 6176763, 6176892 ], "opinion_index": 0, "case_paths": [ "/us/398/0905-09", "/us/398/0905-02", "/us/398/0905-10", "/us/398/0905-08", "/us/398/0905-03", "/us/398/0905-01", "/us/398/0905-04", "/us/398/0905-05", "/us/398/0905-06", "/us/398/0905-07" ] }, { "cite": "254 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill.2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891442 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/44/0132-01" ] }, { "cite": "279 N.E.2d 467", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2842590 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0414-01" ] }, { "cite": "274 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill.2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911757 ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0168-01" ] }, { "cite": "180 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill.App.2d 11", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5234664 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0011-01" ] }, { "cite": "188 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill.App. 2d 345", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2456625 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/39/0345-01" ] }, { "cite": "226 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill.App.2d 79", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2556852 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0079-01" ] } ], "analysis": { "cardinality": 766, "char_count": 15092, "ocr_confidence": 0.73, "pagerank": { "raw": 2.558242572682193e-07, "percentile": 0.8150940460235326 }, "sha256": "59e5c03aed06eff965e730323d79f14f77aae6e45ff9b9f54ed98e4aab61172d", "simhash": "1:c7a5e91c321e90f6", "word_count": 2482 }, "last_updated": "2023-07-14T16:18:17.074050+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Elaine Havlovic, Plaintiff-Appellant, v. Michael J. Scilingo, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE ADESKO\ndelivered the opinion of the court:\nThis is an appeal by plaintiff from the judgment on a verdict finding defendant not guilty in an automobile intersection collision. Plaintiff raises the following issues on appeal:\n(1) Whether the verdict was against the manifest weight of the evidence;\n(2) Whether the court erred in giving defendant\u2019s special interrogatory to the jury;\n(3) Whether the court erred in its instructions to the jury;\n(4) Whether the court erred in permitting defense counsel to elicit and to argue that plaintiffs automobile did not have seat belts; and\n(5) Whether defense counsel was guilty of improper and prejudicial conduct.\nThe facts are as follows:\nOn December 2, 1963, at approximately 7:45 P.M., defendant, Michael Scilingo was proceeding southward in the far eastern lane of Harlem Avenue near 40th Street in Lyons, Illinois. Defendant was driving a 1961 Thunderbird. It was snowing and the pavement was slick. Defendant had his windshield wipers operating and the headlights of his automobile were on. As defendant approached the intersection of Harlem Avenue and 40th Street, he noticed that plaintiff, Elaine Havlovic had stopped her 1963 Ford auto in the inner northbound lane of Harlem Avenue in preparation for a left turn to the west onto 40th Street. Traffic on Harlem Avenue was medium and traffic conditions caused a slow speed of movement. The posted speed limits on Harlem Avenue in the area in question was 35 miles per hour. Defendant was traveling approximately 20 miles per hour.\nWhen defendant was some 55 to 70 feet from plaintiffs auto, he noticed that plaintiff was making her left turn across the path of defendant\u2019s northbound vehicle. When defendant saw plaintiffs car beginning to turn in front of him, he began pumping his brakes because of the slick road conditions. Defendant\u2019s car did not respond and the front of defendant\u2019s vehicle struck the right door of plaintiffs car causing damage to the right side of plaintiffs car and a small dent to the bumper of defendant\u2019s car. Plaintiff testified that she never saw defendant\u2019s vehicle.\nPlaintiff, who was six-months pregnant at the time of the accident, became hysterical and was taken to the hospital, but was released that evening. She saw her family physician the next day and complained of injuries to her back and abdomen and severe headaches. The doctor saw plaintiff again on December 30, 1963, and she reported that her back and leg were aU right. Her child was bom with no particular problems on March 8, 1964.\nOn December 29, 1964, plaintiff complained of severe pain down the back of her left leg and was treated by a physician. The pain subsided, but returned some months later and plaintiff subsequently underwent surgery for a herniated spinal disc. Plaintiff later required an additional disc operation and treatment for certain complications of the surgery. Plaintiff sued for damages incurred by her as a result of the accident on December 2, 1963, aUeging that her later injuries resulted from the accident which she contended was caused solely by the negligence of the defendant. Plaintiff appeals from a jury verdict and judgment finding defendant not guilty.\nPlaintiffs initial contention on appeal is that the verdict for defendant was against the manifest weight of the evidence. Plaintiff in the instant case, admitted that she began to turn left slowly across the northbound lanes of Harlem Avenue without ever seeing the defendant\u2019s auto. Defendant testified that the pavement was slick and when defendant saw plaintiff beginning to turn directly in front of him he attempted to stop but was unable to and subsequently struck her.\nIn Pozdro v. Dynowski, 83 Ill.App.2d 79, 226 N.E.2d 377, this court considered a factual situation similar to the case at bar and held:\n\u201cIt was within the province of the jury, under the facts and circumstances of this case, to decide whether the defendant was negligent. We cannot say, as we must, to reverse a verdict of a jury on disputed factual testimony, that an opposite conclusion is clearly evident, plain and indisputable. Lowe v. Gray, 39 Ill.App. 2d 345, 188 N.E.2d 890. A court of review must take into consideration not only the verdict of the jury, but also the fact that the trial judge who also saw and heard the witnesses and argument of plaintiffs attorney denied the plaintiff\u2019s post-trial motions. Vasic v. Chicago Transit Authority, 33 Ill.App.2d 11, 180 N.E.2d 347.\u201d\nAfter careful examination of the record, and in light of the fact that the trial court denied plaintiff\u2019s post-trial motions, we are unable to find that the verdict in the instant case was against the manifest weight of the evidence.\nPlaintiff next contends that the trial court erred in giving defendant\u2019s special interrogatory to the jury. The interrogatory asked:\n\u2018Was the plaintiff, Elaine Havlovic, at and immediately prior to the collision in question guilty of any contributory negligence which contributed to or was a proximate cause of her injuries? Yes_No__\u201d\nPlaintiff contends that use of the word \u201cor\u201d creates two distinct and severable propositions, i.e. negligence by plaintiff which contributed to her injuries and negligence by plaintiff which was a proximate cause of her injuries. Plaintiff maintains that the jury would be improperly influenced to find defendant not guilty if they found either of the propositions when only the latter of them mentions proximate cause.\nSpecial interrogatories must be tendered, objected to, ruled upon, and submitted to the jury just as instructions are. (Ill. Rev. Stat. 1969, ch. 110, par. 65.) It is well settled that to preserve an objection to an instruction or interrogatory upon review, the grounds for the objection must have been specifically raised in the trial court, so that the trial court could be advised of the specific nature of the objection before ruling. Supreme Court Rule 239(b), Ill. Rev. Stat. 1969, ch. 110A, par. 239(b); Delany v. Badame, 49 Ill.2d 168, 274 N.E.2d 353; O\u2019Neil v. Montalbano, 3 Ill.App.3d 414, 279 N.E.2d 467.\nAt the conference on instructions in the instant case, counsel for plaintiff objected to the special interrogatory by stating, \u201cI object to the giving of Defendant\u2019s Special Interrogatory as being improper in language and the Court is giving it over my objection.\u201d Counsel did not state any specific grounds for an objection to the interrogatory at trial and he is precluded from objecting to the interrogatory on appeal. Moreover, in the case at bar, plaintiff\u201ds instruction defining contributory negligence was given including the requirement of proximate cause. When the special interrogatory is viewed together with all the other instructions given and the evidence in this case, we do not find that the jury was confused by the interrogatory to the detriment of plaintiff. Bruske v. Arnold, 44 Ill.2d 132, 44 Ill.2d 132, 254 N.E.2d 453, cert. denied, 398 U.S. 905.\nPlaintiff\u201ds next contention is that the trial court erred in instructing the jury on inferences that could be drawn from the violation of a statute, and in the giving of a circumstantial evidence instruction. The court gave an instruction which provided:\n\u201cThere was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:\n\u2018The driver of a vehicle within an intersection intending to run to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this Act may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.\u2019\nIf you decide that a party violated the statute on the occasion in question, then you may consider that fact with all the other facts and circumstances in evidence in determining whether or not a party was negligent, or contributorily negligent, before and at the time of the occurrence.\u201d\nPlaintiff urges that the use of the language \u201cor contributorily negligent\u201d is error in that it repetitiously singles out the plaintiff after the court had already stated the respective duties of each party, and cites Randal v. Deka, 10 Ill.App.2d 10, 134 N.E. 36, in support of her contention.\nIn Randal v. Delia, supra, the Appellate Court reversed a judgment for defendant in a personal injury case. But the court found in that case that of the 19 instructions given by the trial court at the request of the defendant, eight concluded with \u201cyou should find the defendant not guilty\u201d or similar language. Other instructions contained statements to the effect that under certain circumstances plaintiff could not recover and seven instructions concerned the contributory negligence of the plaintiff. The court merely concluded that under the facts and circumstances of that case the repetition of instructions emphasizing the duties of only one side was so great as to possibly influence the jury that the court favored one party and thus was error. That is not the case before us where plaintiff only questions one phrase in one instruction. We find no prejudice in the instruction given.\nPlaintiff also contends that the giving of a circumstantial evidence instruction was improper. The instruction in the precise language of I.P.I. No. 1.03 stated:\n\u201cA fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the fact sought to be proved.\u201d\nThis circumstantial evidence instruction is proper whenever there is circumstantial evidence in the record. Branch v. Woulfe, 300 Ill.App. 472, 21 N.E.2d 148.\nIn the case at bar, the police officer at the accident scene testified as to the location of debris from the accident. The location of the debris was circumstantial evidence of the point of impact. Counsel for plaintiff pointed out another instance of circumstantial evidence in the case when he attempted to show the speed of defendant\u2019s vehicle by the distance plaintiff\u2019s car was moved by the impact. He argued:\n\u201cAnd because he said he was going twenty miles an hour, you can take into consideration the circumstantial evidence in this case that would a car going just twenty miles an hour move another passenger car that distance.\u201d\nWe find the instruction given on circumstantial evidence was proper in the instant case.\nPlaintiff next contends that defense counsel was improperly allowed to question witnesses and argue about seat belts in plaintiff\u2019s automobile, when there was no statute requiring such belts at the time of the accident. Defense counsel asked plaintiff, her mother, and her husband if there were seat belts in plaintiff\u2019s car. Defense counsel in his closing argument made brief reference to the fact that plaintiff stated there were no seat belts in the car at the time of the accident and that plaintiff\u2019s husband stated that there were seat belts in the car when in referring to the credibility of plaintiff he stated:\n\u201cWell, let\u2019s examine the evidence on that? Mrs. Havlovic was, I thought remarkable on how certain she was. You remember that the husband and wife couldn\u2019t agree on the seat belt situation, couldn\u2019t agree on that and they really didn\u2019t know much about it at all. No word about the defrosters, heaters, I suggest an awful lot of unsaid evidence in this case has come out, but the one thing she is really certain about is that the accident happened on 40th Street.\u201d\nThe record indicates that seat belts were mentioned in the instant case only in reference to the credibility of the witnesses. No instruction on the use of seat belts was ever tendered and no attempt to relate them to liability was made. See Hale v. Cravens, 129 Ill.App.2d 466, 263 N.E.2d 593.) In the instant case, the trial court did not err in allowing the questions concerning seat belts and in allowing the brief mention of seat belts in defendant\u2019s closing argument.\nPlaintiff\u2019s final contention on appeal is that the closing argument of defendant\u2019s counsel was improper and prejudicial. In his closing argument, defense counsel suggested that the injuries plaintiff suffered in the instant case, much after the accident occurred, were wholly uncorrelated to the accident. Defense counsel then analogized to a situation where there was a lawsuit concerning a moderate accident with moderate damages and during the pendency of that suit the plaintiff developed eye trouble, and her counsel said \u201c* * * don\u2019t worry we\u2019ll throw that in \u2022 * Plaintiff\u2019s objection to that analogy was overruled, and defense counsel proceeded: \u201c* * * don\u2019t worry, we will throw that in, the cataracts. A little later on, a few more years go by and we get a little bit of liver trouble, don\u2019t worry, we are going to throw that in.\u201d At this point, however, the court sustained plaintiff\u2019s objection to the analogy. Plaintiff contends that notwithstanding the sustaining of her objection, she was so prejudiced that she could no longer receive a fair trial.\nPlaintiff, in her post trial motion, raised objection to defense counsel\u2019s analogy in closing argument, and that motion was denied by the trial court. The Appellate Court in Enloe v. Kirkwood, 120 Ill.App.2d 117, 256 N.E.2d 459, stated:\n\u201cThe rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill.2d 293, 134 N.E.2d 249, 58 A.L.R.2d 1008. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill. 486, 29 N.E. 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court, is therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill. 322, 163 N.E. 17.\u201d\nAfter careful examination of the record in the instant case, we do not find that defense counsel\u2019s closing argument was so improper and prejudicial as to require reversal.\nFor the foregoing reasons, the judgment of the Circuit Court of Cook County is hereby affirmed.\nJudgment affirmed.\nDIERINGER, P. J., and BURMAN, J\u201e concur.", "type": "majority", "author": "Mr. JUSTICE ADESKO" } ], "attorneys": [ "Arthur S. Gomberg and Eugene Propp, both of Chicago, (Samuel Nineberg, of counsel,) for appellant.", "Pretzel, Stouffer, Nolan & Rooney, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellee." ], "corrections": "", "head_matter": "Elaine Havlovic, Plaintiff-Appellant, v. Michael J. Scilingo, Defendant-Appellee.\n(No. 54185;\nFirst District\nSeptember 20, 1972.\nRehearing denied November 1, 1972.\nArthur S. Gomberg and Eugene Propp, both of Chicago, (Samuel Nineberg, of counsel,) for appellant.\nPretzel, Stouffer, Nolan & Rooney, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellee." }, "file_name": "0918-01", "first_page_order": 940, "last_page_order": 947 }