Marder v. Leary

• Decision Date: 30 March 1891
• Citation: 26 N.E. 1093,137 Ill. 319
• Court: Illinois Supreme Court
• Parties: MARDER, LUSE & CO. v. LEARY.

137 Ill. 319

26 N.E. 1093

MARDER, LUSE & CO.

v.LEARY.

Supreme Court of Illinois.

March 30, 1891.

Appeal from appellate court, first district.

Flower, Smith & Musgrave, for appellant.

Black & Fitzgerald and A. B. Chilcoat, for appellee.

SCHOLFIELD, C. J.

Two grounds are insisted upon in the printed arguments before us for a reversal of the judgment below: (1) That the argument of appellant's counsel, both in the opening and closing addresses, was prejudicial to appellant; and (2) that the trial court allowed appellee, over appellant's objection, to show that, after the injury complained of was received, alteration had been made in the protection to the elevator well by putting up a bar in addition to the existing door across the entrance. They will be considered in the order stated.

1. The action is for negligence in failing to keep an elevator well sufficiently lighted or guarded, whereby appellee fell into it, and received serious and permanent injuries. Counsel for appellee, in making the opening statement of his case to the jury, before the introduction of evidence, said: ‘Now, there is another thing, gentlemen, which I think we will be permitted to show you. I think we will be permitted by his honor to show you that this was not the first accident in that elevator shaft by any means. I think we will be permitted to show that in the history of this building, and before the happening of this accident, there had been at least one death down that elevator shaft. I expect we will be permitted to show that there had been at least one death down that elevator shaft before the happening of this accident.’ Afterwards, during the progress of the trial, appellee, by his counsel, introduced Frank Beck as a witness, and then made the following offer: ‘I will offer by this witness, then, to prove that upon two or more occasions prior to the happening of this injury, and one of them after the 1st of January, 1888, persons had fallen down this elevator shaft; that this fact was known to the occupants, and that no steps were taken by them to increase the security of the shaft until after the injury to Mr. Leary.’ Counsel for appellant objected to the admitting of this evidence, and the court sustained the objection. The purpose of the opening statement is to apprise the jury of the grounds relied upon the respectively maintain and defeat the action. It is to be presumed that the jurors possess ordinary intelligence, and that, therefore, when counsel contend for a position which the court overrules, they will be unaffected by that contention. So here, when appellee offered evidence to sustain his contention, as expressed in his opening statement, and the court sustained appellant's objection to it, it is to be presumed that the jury gave it no further consideration. To go further would seem to lead to the absurd result of making every inaccurate contention of counsel a ground of reversal, although it be immediately followed by correct ruling of the court holding it untenable. Again, the record shows the following in the closing argument on behalf of appellee: ‘Mr. Smith stated that from this boy and Mr. Abbott might have been gotten something that would have carried conviction to your mind, if the court had allowed the question to be asked as to what the boy said; and I can state in the same way that, if certain questions that I asked as to previous injuries that had happened in this elevator...