Gasiorowski v. Homer

• Decision Date: 28 March 1977
• Docket Number: No. 62181,62181
• Citation: 365 N.E.2d 43,7 Ill.Dec. 758,47 Ill.App.3d 989
• Parties: , 7 Ill.Dec. 758 Veronica GASIOROWSKI, Plaintiff-Appellant, v. Fred HOMER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 43

365 N.E.2d 43

47 Ill.App.3d 989, 7 Ill.Dec. 758

Veronica GASIOROWSKI, Plaintiff-Appellant, v. Fred HOMER, Defendant-Appellee.

No. 62181.

Appellate Court of Illinois, First District, First Division.

March 28, 1977.

Beermann, Swerdlove, Woloshin & Barezky, Chicago (Miles N. Beermann, Chicago, of counsel), for plaintiff-appellant.

Pretzel, Stouffer, Nolan & Rooney, Chartered, Chicago (Timothy J. Gillick, Joseph B. Lederleitner, Chicago, of counsel), for defendant-appellee.

BUA, Justice.

Veronica Gasiorowski brought suit for personal injuries allegedly suffered as a result of the negligent operation of a motor vehicle by the defendant, Fred Homer. The plaintiff, a pedestrian, was crossing Belmont Avenue between Lockwood and Long Avenues in Chicago when she was struck by the defendant's automobile. A jury returned a verdict in favor of the defendant, and in response to a special interrogatory indicated its finding that the plaintiff was guilty of contributory negligence. Judgment was entered on the verdict. On appeal from that judgment and the denial of her post-trial motion, the plaintiff-appellant contends that the trial court committed reversible error in three respects: (1) by its limitation of the scope of plaintiff's voir dire examination of prospective jurors regarding possible bias against pedestrians crossing streets in mid-block, (2) by its refusal to permit the plaintiff to recall the defendant for further examination as an adverse party, and (3) by its refusal to admit certain proffered evidence as to the plaintiff's "habits of due care, industriousness, and sobriety." We find these contentions to be without merit.

As regards the first of these alleged errors, it is not argued that the plaintiff was completely denied any opportunity to question prospective jurors about their attitudes toward pedestrians crossing streets in mid-block. It is clear that plaintiff's counsel, with the express permission of the court, drew the jurors' attention to the fact that this case involved a pedestrian struck by an auto as she was attempting to cross a street in mid-block rather than at a pedestrian crosswalk, and then asked each juror whether there was anything about this situation which might prevent him from viewing the evidence in an open-minded and impartial manner. The trial court refused, however, to permit the plaintiff in this same vein to ask certain questions concerning the jurors' own related experiences. Specifically, the court did not permit the plaintiff to ask prospective jurors, (1) whether they had ever seen pedestrians crossing streets in mid-block, (2) whether they, as pedestrians, had themselves ever crossed streets in mid-block, and (3) whether, if they had as pedestrians crossed streets in mid-block, they felt that their behavior on those occasions had been "reasonable." The plaintiff now urges that the court's refusal to permit questions (1) and (2) constituted reversible error.

It is well established that limitation of voir dire questioning may constitute reversible error where its effect is to deny a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors. (People v. Lobb (1959), 17 Ill.2d 287, 161 N.E.2d 325; People v. Moore (1972), 6 Ill.App.3d 568, 286 N.E.2d 6; Turner v. Wallace (1966), 71 Ill.App.2d 160, 217 N.E.2d 11.) However, once such a fair opportunity is afforded, it lies within the trial court's discretion to deny further questioning on the matter. (Jines v. Greyhound Corp. (1964), 46 Ill.App.2d 364, 197 N.E.2d 58; U. S. v. Casmier Staszcuk (7th Cir. 1974), 502 F.2d 875.) And indeed, it may be serious error for the court to fail to cut off voir dire which becomes an attempt to indoctrinate or pre-educate jurors (Scully v. Otis Elevator Co. (1971), 2 Ill.App.3d 185, 275 N.E.2d 905; Osborne v. Leonard (1968), 99 Ill.App.2d 391, 240 N.E.2d 769; Christian v. New York Central R. R. (1960), 28 Ill.App.2d 57, 170 N.E.2d 183) or to obtain a pledge as to how they would decide under a given state of facts, or determine which party they would favor in the litigation. Murphy v. Lindahl (1960), 24 Ill.App.2d 461, 165 N.E.2d 340.

In view of this statement of the law, we find that the trial court's action was not only within the bounds of sound discretion, but was eminently fair as well. While we agree that it was incumbent upon the trial court in this case to permit the plaintiff to adequately ascertain the attitudes of prospective jurors regarding pedestrians crossing in mid-block, we are not convinced that the court failed to do so. Quite the contrary, the adequacy of the inquiry permitted by the court appears clearly from the record.

First, the examination of those jurors who indicated that they would not be biased in their decisions illustrates beyond a doubt that they understood the general nature of the factual situation involved and the thrust of counsel's inquiry into bias. The cases of veniremen O'Brien and Novak are typical:

EXAMINATION BY PLAINTIFF'S COUNSEL OF VENIREMAN O'BRIEN

Q: Mr. O'Brien, you have heard when you were sitting in the back of the room the very brief statement of what this case was about, is that correct?

A: Yes.

Q: You understood it was a pedestrian crossing in mid-block, an automobile involved and the lady was injured? * * * I had asked the other jurors whether the fact that this involves a pedestrian crossing in mid-block would affect their judgment in this particular case. In other words, do you have a preconceived idea before the case even starts or any evidence is introduced, as to who is right and who is wrong?

A: Nothing one way or the other.

EXAMINATION BY PLAINTIFF'S COUNSEL OF VENIREMAN NOVAK

Q: Mr. Novak, how about yourself, anything about this business of the pedestrian in the crosswalk that bothers you?

A: No.

Q: Each of you have heard this phrase of pedestrians in the crosswalk or out of the crosswalk many times but there is real concern hidden in the back that might be something that you don't acknowledge but it is so important that it might be an absolutely level start. Would yours be that way, Mr. Novak?

A: Yes sir.

Secondly, it is worth noting that a number of jurors, when questioned within the bounds prescribed by the court, were moved to admit a bias against pedestrians crossing in mid-block, and were dismissed for cause. This is a further indication of the sufficiency of the voir dire.

Thus, we find that the trial court permitted the plaintiff to adequately question prospective jurors regarding this area of potential bias. A direct and unambiguous inquiry into attitudes and predispositions evoked direct and apparently honest responses from the various jurors. The trial court was well within the bonds of its discretion in concluding that in such a situation it was not necessary to permit plaintiff's counsel to conduct what would amount to a cross-examination of the jurors.

The situation here is essentially similar to that in Turner v. Wallace (1966), 71 Ill.App.2d 160, 217 N.E.2d 11. In Turner, the plaintiff's counsel was prevented from questioning a juror as to whether she had "ever experienced pain," as part of an attempt to ferret out bias against awarding damages for pain and suffering. Rejecting plaintiff's contention on appeal that this had prevented fair inquiry into the prospective juror's state of mind, the appellate court said:

"In the present case, the court did not prohibit counsel from inquiring about the prospective juror's attitudes on pain, or as to whether she had any preconceived religious or philosophic tenets on the subject. * * * Counsel could have ascertained the juror's attitudes merely by asking about her attitudes rather than her experiences. We do not think, on the whole, that he was deprived of a fair opportunity of examining the juror on any appropriate matters." (Emphasis added.) 71 Ill.App.2d 160, 170, 217 N.E.2d 11, 15.

Beyond this, we find the trial court's ruling to have been wise in view of the potential for prejudice inherent in the questions the plaintiff sought to ask on voir dire. Questions which tend to put prospective jurors in the place of the parties to the litigation open a wide range of possibilities for indoctrination or pre-education of jurors, and lend themselves all too easily to attempts to obtain some positive indication as to which party the jurors might favor. This can well be seen in the present case. Before the trial court ruled out questions as to the jurors' own experiences with pedestrians crossing in mid-block, the plaintiff, after eliciting one juror's admission that he had himself crossed streets in mid-block, went on to ask that juror whether he felt that his conduct on those occasions had been "reasonable." The only legitimate function of voir dire examination is the selection of an impartial jury. Such attempts to go beyond this function and use the process as a means of affecting the minds of jurors and/or of selecting jurors already harboring certain predispositions, threaten in a fundamental way the ideal of a fair trial, and, where possible, should be frustrated at an early stage.

In order to respond to plaintiff's second and third contentions, it is necessary to consider briefly certain portions of the evidence presented at trial. A number of witnesses were called to testify by the plaintiff. The testimony herein relevant can be summarized as follows:

The plaintiff testified that about 4:30 p. m. on November 27, 1970 she was riding in an automobile driven by her husband, Boleslaw Gasiorowski, heading west on Belmont Avenue. It was drizzling. Mr. Gasiorowski parked the car on the north side of Belmont Avenue between Lockwood Avenue, to the east, and Long Avenue, to the west. The plaintiff then got out of the car, walked around behind it, and proceeded south into the empty westbound traffic lane of Belmont Avenue. She was taking a bag of clothes to a cleaner's shop on the south side of...