{ "id": 5579526, "name": "SOPHIE KYOWSKI, Plaintiff-Appellant, v. CHRISTINE ESTES BURNS, Defendant-Appellee", "name_abbreviation": "Kyowski v. Burns", "decision_date": "1979-03-30", "docket_number": "No. 77-1879", "first_page": "1009", "last_page": "1019", "citations": [ { "type": "official", "cite": "70 Ill. App. 3d 1009" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "366 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 350", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3382885 ], "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0350-01" ] }, { "cite": "372 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3415864 ], "year": 1977, "pin_cites": [ { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0772-01" ] }, { "cite": "370 N.E.2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3413463 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0328-01" ] }, { "cite": "345 N.E.2d 814", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2718666 ], "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0112-01" ] }, { "cite": "289 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2845655 ], "year": 1976, "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0606-01" ] }, { "cite": "364 N.E.2d 533", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5636941 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0940-01" ] }, { "cite": "355 N.E.2d 547", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 279", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640456 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0279-01" ] }, { "cite": "313 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 231", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344222 ], "year": 1976, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0231-01" ] }, { "cite": "370 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 783", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3402494 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0783-01" ] }, { "cite": "301 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344480 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/1000-01" ] }, { "cite": "378 N.E.2d 502", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "72 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444072 ], "year": 1973, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0100-01" ] }, { "cite": "323 N.E.2d 62", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 192", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706158 ], "pin_cites": [ { "page": "200-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0192-01" ] }, { "cite": "299 N.E.2d 330", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 852", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2855951 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0852-01" ] }, { "cite": "316 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5378423 ], "weight": 2, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0629-01" ] }, { "cite": "305 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2521107 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0089-01" ] }, { "cite": "354 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 506", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2489853 ], "year": 1973, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0506-01" ] }, { "cite": "209 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. App. 2d 111", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5301133 ], "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/61/0111-01" ] }, { "cite": "349 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2805221 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0873-01" ] }, { "cite": "245 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "279 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "299 N.E.2d 156", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 755", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2856224 ], "pin_cites": [ { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0755-01" ] } ], "analysis": { "cardinality": 932, "char_count": 20862, "ocr_confidence": 0.9, "pagerank": { "raw": 5.464446121319744e-07, "percentile": 0.9455431571493165 }, "sha256": "84938b4b8ace7975868df03766fef9fecbc4e4c1bc913da4142384eab033bf99", "simhash": "1:bb65b6e7bfa7acb6", "word_count": 3398 }, "last_updated": "2023-07-14T21:04:20.751997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SOPHIE KYOWSKI, Plaintiff-Appellant, v. CHRISTINE ESTES BURNS, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE PERLIN\ndelivered the opinion of the court:\nPlaintiff filed an action to recover damages for alleged injuries sustained after being struck by defendant\u2019s automobile. Following a jury trial in which plaintiff was found guilty of contributory negligence, a verdict was entered in favor of defendant. Plaintiff appeals.\nThe issues presented for review are (1) whether defense counsel committed prejudicial error in questioning Officer Shimkus regarding his police report of the accident; (2) whether defense counsel committed prejudicial error by allegedly attempting to impeach plaintiff\u2019s testimony and then failing to offer proof of the alleged impeachment; (3) whether the court erred in granting defendant\u2019s motion in limine, preventing any reference to the subsequent repair of defendant\u2019s automobile; (4) whether the court erred in permitting defendant to introduce photographs which allegedly did not depict accurately conditions existing at the time of the accident; (5) whether defense counsel committed prejudicial error by inquiring as to traffic conditions subsequent to the accident; (6) whether the court erred in sustaining defendant\u2019s motion to strike the testimony of plaintiff\u2019s witness Arthur Fager; (7) whether the court committed error by requiring plaintiff to lay a foundation prior to introducing alleged admissions from defendant\u2019s deposition; (8) whether the court erred in not declaring a mistrial where defense counsel allegedly concealed from plaintiff a prior statement of Officer Shimkus; and (9) whether the alleged \u201ccloseness\u201d of the facts in this cause mandates a reversal when any \u201csubstantial\u201d error is found to exist.\nWe affirm.\nPlaintiff Sophie Kyowski testified at trial as follows: On January 15, 1973, between 6 and 6:30 p.m. plaintiff was \u201cshopping\u201d at the Chadley Shoe Store at 4866 West Irving Park Road. Upon leaving the store she proceeded to cross Irving Park (a six-lane road) in a southerly direction at the crosswalk located at Lamon, a north-south street which ends on the south side of Irving Park. (This is generally referred to as a \u201cT\u201d intersection.) Looking east plaintiff observed an automobile approximately one block away proceeding westbound on Irving Park. After crossing the lane closest to the north curb (parking lane), plaintiff observed that the auto was only one-half block away. When plaintiff approached the third lane of traffic going west, the auto was only 15 feet away. Plaintiff then attempted to step back, but she was struck by the front center portion of the auto. Plaintiff did not hear any horn or brake noise prior to the impact. She estimated that the car was traveling 30 miles per hour. Plaintiff could not recall what happened after she was struck by the auto.\nRobert Ness, manager of the Lyon & Healy Music Store at 4902 Irving Park, testified that on January 15, 1973, at approximately 5:30 to 5:45 p.m., he heard a \u201cloud screech\u201d of brakes outside the store. He observed a woman lying in the street in front of the Fay Hoosin store located next door at 4904 Irving Park. He also observed an auto stopped in the third westbound lane, about five feet beyond the woman. Ness described traffic as \u201cquite heavy\u201d at the scene of the accident and stated that cars were \u201cparked solidly along the north curb.\u201d\nArthur Fager, a naprapath, testified that he treated plaintiff on nine occasions between April 1973 and June 1973. His treatments involved \u201cmanipulative techniques to the ligaments.\u201d He testified that the practice of naprapathy does not require a license. The court sustained defendant\u2019s motion to strike Fager\u2019s testimony, finding that plaintiff failed to \u201cconnect\u201d Fager\u2019s testimony to the alleged accident.\nDr. Kirk, head of the Department of Orthopedic Surgery at Northwest Hospital, testified that on January 15, 1973, he examined plaintiff in the emergency room at Northwest Hospital. His examination revealed that plaintiff had sustained fractures of the pelvic bone and a fractured left femur. He also stated that her injuries resulted in a deformity commonly known as \u201cknock knees.\u201d\nChicago police officer Shimkus testified as follows: On January 15, 1973, at approximately 5:30 p.m. he received a call directing him to proceed to Irving Park and Lamon. After arriving at the scene, Officer Shimkus conducted an investigation and determined that the accident occurred in front of 4904 West Irving Park. On January 16,1973, plaintiff told Shimkus at Northwest Hospital that she did not remember what had happened.\nDefendant Christine Estes Bums testified to the following: On January 15,1973, at approximately 5:30 p.m., accompanied by her friend Mary Ellen, defendant was driving westbound on Irving Park in the lane closest to the street center. As she neared Lamon, she observed traffic was heavy; there were cars ahead, behind and to the right of her car.\nDefendant first observed plaintiff near the right of her car \u201can instant\u201d prior to contact which occurred above the right front wheel of defendant\u2019s auto at a point 50 to 75 feet west of the intersection at Lamon. Defendant was able to stop her car within two car lengths west of the point of impact. Defendant first aided plaintiff; then she entered the uniform store located immediately west of the Fay Hoosin store and called the police.\nMary Ellen Wauck testified as follows: She was a passenger in Ms. Burns\u2019 auto which was traveling west on Irving Park. She observed cars parked \u201call along the curb lane\u201d and described traffic conditions as \u201cmoderately heavy.\u201d Ms. Wauck first observed plaintiff when she was only three to four feet to the right of the car. Plaintiff was then hit by defendant\u2019s car \u201cjust above the right front wheel.\u201d Ms. Wauck testified that the accident occurred in front of the uniform shop, approximately 60 to 70 feet west of the intersection of Lamon and Irving Park.\nIn a special interrogatory the jury found plaintiff guilty of contributory negligence and returned a verdict in favor of defendant.\nI\nPlaintiff contends that defense counsel committed error in attempting to introduce as evidence statements contained in Officer Shimkus\u2019 police report. Plaintiff objects specifically to the officer\u2019s testimony that his \u201cinvestigation\u201d revealed the accident occurred at 4904 West Irving Park Road. Police reports generally are inadmissible \u201cto divulge substantive evidence to the jury.\u201d (Hall v. Baum Corp. (1st Dist. 1973), 12 Ill. App. 3d 755, 760, 299 N.E.2d 156.) In the case at bar the officer\u2019s conclusion as to the location of the accident site was based upon his conversation with Robert Ness, Mary Ellen Wauck and defendant at the accident scene. Prior to the officer\u2019s testimony defendant testified that the accident had occurred at the west end of the Fay Hoosin store (4904 West Irving Park). Mr. Ness had also testified that he observed plaintiff lying in the street at 4904 West Irving Park, and defendant\u2019s car was stopped 10 to 15 feet further west. Ms. Wauck testified that the accident occurred in front of the Fay Hoosin store. In view of the fact that the jury heard testimony regarding the alleged point of impact from the three witnesses upon which the officer based his conclusions, the officer\u2019s testimony was merely cumulative and any error resulting was nonprejudicial. See Jacobs v. Holley (2d Dist. 1972), 3 Kyowski v. Burns. App. 3d 762, 279 N.E.2d 186; Clifford v. Schaefer (1st Dist. 1969), 105 Kyowski v. Burns. App. 2d 233, 245 N.E.2d 49.\nWe note that during direct examination of the officer, plaintiff\u2019s counsel attempted to use the police report to establish certain statements of defendant. He cannot now be heard effectively to complain of similar action by defense counsel. See Forest Preserve District v. South Holland Trust & Savings Bank (1st Dist. 1976), 38 Ill. App. 3d 873, 349 N.E.2d 689; Economy Truck Sales v. Granger (2d Dist. 1965), 61 Ill. App. 2d 111, 117, 209 N.E.2d 1.\nII\nPlaintiff contends that defendant committed reversible error by attempting to impeach plaintiff\u2019s testimony and then failing to offer proof of the alleged impeachment. Plaintiff argues that defendant\u2019s failure to offer proof of plaintiff\u2019s alleged statements to Dr. Kirk infers that plaintiff had made \u201cother\u201d statements to Dr. Kirk. During cross-examination of plaintiff the following exchange occurred:\n\u201cMr. Meyers: And did you tell him [Dr. Kirk] that you really didn\u2019t recall what happened? You really didn\u2019t remember being in an accident.\nMr. Fishman: I am going to object as to the time and place of these conversations, in an operating room or out of an operating room or which?\nThe Court: Objection sustained.\nMr. Meyers: Excuse me, Your Honor, this is within the knowledge\u2014\nThe Court: Are you going to tie it up with Dr. Kirk?\nMr. Meyers: I am.\nThe Court: All right, she may answer.\n# # #\nPlaintiff: Well I just told him I had an automobile accident and I was a pedestrian, and I got hit.\nMr. Meyers: And did you tell him you really didn\u2019t remember anything other than that.\nPlaintiff: After I got hit I don\u2019t know. I didn\u2019t\u2014\n# # #\nThe Court: All right did you make a statement to Dr. Kirk that you didn\u2019t know what had happened?\nPlaintiff: That is right. I told him that I was in an accident and I don\u2019t know what happened after I got hit.\nThe Court: Okay that is her answer.\nMr. Meyers: Did you tell him you didn\u2019t know what happened before you got hit?\nA: Before I got hit?\nQ: Yes did you tell him you don\u2019t remember what happened?\nA: I told him I was walking across the street and got hit.\nQ: Did you tell him you didn\u2019t recall or remember being hit?\nA: I told him I didn\u2019t remember after I got hit.\u201d (Emphasis added.)\nOnce the foundation is laid for impeachment of a witness who denies making the prior statement, it is incumbent on the examining party to offer evidence of such statement. (Crespo v. John Hancock Life Insurance Co. (1st Dist. 1976), 41 Ill. App. 3d 506, 520, 354 N.E.2d 381.) Where the witness admits having made the prior statement, however, extrinsic evidence is not required. (Goldstein v. Hertz Corp. (1st Dist. 1973), 16 Ill. App. 3d 89, 305 N.E.2d 617.) In the case at bar plaintiff admitted telling Dr. Kirk that \u201cI don\u2019t know what happened after I got hit.\u201d\nMoreover, during cross-examination of Dr. Kirk, defense counsel asked if plaintiff had told the doctor that \u201cshe really didn\u2019t recall what had happened in the accident.\u201d Dr. Kirk answered: \u201cNo not exactly. She was crossing the street. The only thing she remembers \u2014 She remembers she was in an accident.\u201d We believe Dr. Kirk\u2019s testimony regarding plaintiff\u2019s statement was sufficient to relieve any inference that plaintiff had made \u201cother\u201d statements to Dr. Kirk.\nPlaintiff further contends that it was error for defense counsel to argue to the jury that plaintiff \u201cnever knew what happened\u201d at the time of the accident. During closing argument defense counsel stated:\n\u201cThat\u2019s lawyers talk. * * \"I don\u2019t really think that she is aware of what happened in the accident. I think someone later or some time afterward \u2014 it was suggested to her and it was put to her saying yes. I was there. There was a crosswalk there and I was walking across the crosswalk \u00b0 *\nPlaintiff alleges it was prejudicial for defense counsel to use the phrase \u201clawyer talk\u201d and infer plaintiff*s testimony was contrived. We note that during plaintiff\u2019s closing argument plaintiff\u2019s counsel made the following remarks:\n\u201cAbout the west angle, that\u2019s lawyer stuff. That\u2019s when you drag people stuff. That\u2019s when the lawyers go out and have witnesses march up and down, which we didn\u2019t do with Mr. Ness. We just subpoenaed him. That\u2019s manufactured evidence.\u201d (Emphasis added.)\nA party should not be heard to complain of comments to the jury by opposing counsel when he indulges in similar comments during his own argument. (Jamison v. Lambke (1st Dist. 1974), 21 Ill. App. 3d 629, 316 N.E.2d 93.) Any impropriety in defense counsel\u2019s use of the term \u201clawyer talk\u201d would seem to result in no substantial prejudice.\nIII\nPlaintiff contends that the court erred in sustaining defendant\u2019s motion in limine which prevented plaintiff\u2019s counsel from referring to repairs made on defendant\u2019s car subsequent to the accident. Evidence of such subsequent repairs generally is not admissible. (Seipp v. Chicago Transit Authority (1st Dist. 1973), 12 Ill. App. 3d 852, 299 N.E.2d 330.) Testimony of repairs made subsequent to the accident is competent only where evidence is also introduced to show that the damage repaired had resulted from the accident and remained unchanged between that time and the time of the repair. Champion v. Knasiak (1st Dist. 1974), 25 Ill. App. 3d 192, 200-01, 323 N.E.2d 62.\nThe court allowed examination regarding damage resulting from the accident in the instant case. We find no prejudice in the court\u2019s restriction with regard to repairs made subsequent to the accident.\nIV\nPlaintiff contends that the court erred in permitting defendant to introduce photographs which allegedly did not accurately depict the conditions at the time of the accident. She argues defendant\u2019s photographs fail to show a \u201cpainted crosswalk,\u201d a bus stop, and a no parking sign which existed at the intersection at the time of the accident. The fact that conditions at the intersection had changed at the time the photographs were taken does not necessarily render them inadmissible. (See Warner v. City of Chicago (1978), 72 Ill. 2d 100, 105, 378 N.E.2d 502.) The admission of photographs is within the sound discretion of the trial court, and its ruling will not be disturbed absent a clear abuse of discretion. Kravenas v. Algonquin Township (2d Dist. 1973), 13 Ill. App. 3d 1000, 1002, 301 N.E.2d 490.\n\u2022 6 In the case at bar the court allowed introduction of defendant\u2019s photographs for the limited purpose of cross-examining plaintiff regarding the location of the stores at the accident scene. The court ruled that cars portrayed in the photographs, and the absence of white lane and crosswalk markings, should be disregarded by the jury. Even if there are substantial changes in the appearance of the scene, photographs are admissible if it was demonstrated that the changes were explained to the members of the jury so that they are able to understand the photographs and will not be misled. (Casson v. Nash (1st Dist. 1977), 54 Ill. App. 3d 783, 370 N.E.2d 564.) We find no prejudicial error in allowing introduction of defendant\u2019s photographs for such limited purposes.\nV\nPlaintiff contends defendant committed error by referring to traffic conditions subsequent to the accident. Plaintiff alleges it was error for defense counsel to \u201crepeatedly\u201d ask Officer Shimkus whether traffic was heavy when the officer arrived at the scene after the accident. The court sustained plaintiff\u2019s objection, advising the jury that the officer had not witnessed the accident. In view of the action of the court in sustaining the objection, we find no substantial prejudice to plaintiff.\nPlaintiff next contends that defense counsel erred in closing argument in contending that Officer Shimkus and Robert Ness testified that traffic conditions were heavy. However, the record indicates that defense counsel did not argue that the officer had so testified. Defense counsel did argue what the officer had in fact stated \u2014 that defendant\u2019s car was moved to allow the flow of traffic to resume.\nA party is allowed wide latitude during closing argument, including reasonable inferences drawn from the evidence. (Jamison v. Lambke (1st Dist. 1974), 21 Ill. App. 3d 629, 636, 316 N.E.2d 93.) We find that defendant\u2019s argument regarding traffic conditions was based on the testimony of witnesses at trial, and that reasonable inferences were drawn from the evidence.\nVI\nPlaintiff contends that the court erred in striking the testimony of Arthur Eager, a naprapath. Plaintiff argues that the court struck Eager\u2019s testimony because the witness was not licensed. However, the record indicates that the court struck Eager\u2019s testimony because his testimony concerning treatment of plaintiff\u2019s leg was not \u201ctied up\u201d with her alleged injuries resulting from the accident. In striking the testimony the court stated:\n\u201cI ruled on that argument. I\u2019ve stricken that because it was not connected with the injury in question, causal connection, and the fee is stricken because of \u2014 it wasn\u2019t tied up with the injury in question. It\u2019s immaterial whether the man is licensed or not.\u201d\nEvidence which is admissible subject to being connected should be stricken if not so connected (see Craft v. Acord (4th Dist. 1974), 20 Ill. App. 3d 231, 235, 313 N.E.2d 515), and a court\u2019s determination that evidence is irrelevant is largely within the discretion of the court, and its ruling should not be reversed absent a clear abuse of discretion. (Ferdinand v. Yellow Cab Co. (1st Dist. 1976), 42 Ill. App. 3d 279, 355 N.E.2d 547.) We do not consider the court\u2019s action in this instance as an abuse of discretion.\nVII\nPlaintiff contends that the court erred in requiring plaintiff to lay a foundation before introducing defendant\u2019s prior statements contained in a deposition. Plaintiff argues that she is permitted to introduce admissions directly into evidence without asking the witness whether she had made the prior statements. We note that plaintiff does not contend that the court\u2019s action prevented introduction of defendant\u2019s statements but protests only that plaintiff was required to afford defendant an opportunity to admit or deny the prior statements.\nThe record indicates that the court\u2019s action resulted in no actual prejudice to plaintiff since plaintiff was in fact permitted to introduce the prior statements. The party asserting error must demonstrate how he was prejudiced, and absent a clear showing of prejudice, it will not be assumed by a court of review. O\u2019Brien v. Walker (1st Dist. 1977), 49 Ill. App. 3d 940, 364 N.E.2d 533.\nVIII\nPlaintiff contends that the court erred in not declaring a mistrial because defense counsel failed to comply with the rules of discovery. Plaintiff alleges that during cross-examination of Officer Shimkus, defense counsel used to refresh the officer\u2019s recollection a prior statement which had not been revealed to plaintiff. It is a general rule that imposing sanctions against a party for noncompliance with the discovery rules is within the discretion of the trial judge. (Carlson v. General Motors Corp. (1st Dist. 1972), 9 Ill. App. 3d 606, 619, 289 N.E.2d 439.) Factors to be considered by the court are surprise to opposing counsel, the prejudicial effect, diligence of opposing counsel in seeking discovery, timely objection and good faith. Blakely v. Johnson (1st Dist. 1976), 37 Ill. App. 3d 112, 115, 345 N.E.2d 814.\nIn the instant case plaintiff\u2019s counsel delayed objecting until the close of defendant\u2019s case even though he apparently learned of the statement soon after the officer had testified. Officer Shimkus was available to testify after the statement was tendered to plaintiff\u2019s counsel, but defense counsel chose not to further examine him. Moreover, the fact that the statement was used solely to refresh the officer\u2019s recollection indicates that no substantial prejudice resulted to plaintiff from the alleged delay in disclosure of the statement.\nIX\nPlaintiff contends that \u201cthe case was close on the facts\u201d and thus any substantial error causing prejudice to plaintiff would mandate a reversal. It is a fact that where a jury could have decided for either party, any substantial error which might have \u201ctipped the scales in favor of the successful party calls for a reversal.\u201d (Clemons v. Alton & Southern R.R. Co. (5th Dist. 1977), 56 Ill. App. 3d 328, 370 N.E.2d 679.) However, the objective of a reviewing court is not to determine whether the record is totally free of error but whether any error occurred which substantially prejudiced plaintiff and affected the outcome below. (Kincl v. Hycel, Inc. (1st Dist. 1977), 56 Ill. App. 3d 772, 792, 372 N.E.2d 385. See Needy v. Sparks (1st Dist. 1977), 51 Ill. App. 3d 350, 372, 366 N.E.2d 327.) We find that no substantial prejudice occurred in this case.\nFor the foregoing reasons we find no reversible error and affirm the jury\u2019s verdict for defendant.\nAffirmed.\nSTAMOS, P. J., and HARTMAN, J., concur.\nWebster\u2019s Third International Dictionary (1976) defines naprapathy as \u201ca therapeutic system of drugless treatment by manipulation depending on the theory that disease symptoms result from disorder in the ligaments and connective tissues.\u201d", "type": "majority", "author": "Mr. JUSTICE PERLIN" } ], "attorneys": [ "Ronald S. Fishman, of Chicago, for appellant.", "Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll, J. Scott Myers, and David A. Novoselsky, of counsel), for appellee." ], "corrections": "", "head_matter": "SOPHIE KYOWSKI, Plaintiff-Appellant, v. CHRISTINE ESTES BURNS, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 77-1879\nOpinion filed March 30, 1979.\nRonald S. Fishman, of Chicago, for appellant.\nJacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll, J. Scott Myers, and David A. Novoselsky, of counsel), for appellee." }, "file_name": "1009-01", "first_page_order": 1031, "last_page_order": 1041 }