The judgment in favor of the plaintiff in the sum of $110,000 was affirmed on appeal by the Appellate Court for the Fourth District, which granted a certificate of importance. 50 Ill. App.2d 253. On November 5, 1960, the plaintiff, who was 18 years old, broke his leg while playing in a college football game.
While admissibility of photographs depicting injuries is stated to be within the sound discretion of the court, the standard to be applied favors admissibility. See Darling v. Charleston Community Memorial Hospital, 50 Ill. App. 2d 253, 321 (1964); see also Hiscott, 324 Ill. App. 3d at 124 (stating that, generally, relevant evidence is admissible). Moreover, if a photograph has sufficient probative value, it should be admitted in spite of the fact that it may be gruesome or inflammatory.
• 4 The issue of whether a party's statement is a judicial admission has arisen in many contexts, including statements by attorneys in opening statements, direct examination, cross-examination and closing argument. ( Deel v. United States Steel Corp. (1969), 105 Ill. App.2d 170, 245 N.E.2d 109 (answers to interrogatories); Vincent v. Wesolowski (1967), 87 Ill. App.2d 477, 232 N.E.2d 120 (deposition testimony); Frisch v. International Harvester Co. (1975), 33 Ill. App.3d 507, 338 N.E.2d 90 (direct examination); Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App.2d 253, 200 N.E.2d 149 (cross-examination); Petersen v. General Rug Carpet Cleaners, Inc. (1947), 333 Ill. App. 47, 77 N.E.2d 58 (opening statements); Sabo v. T.W. Moore Feed Grain Co. (1968), 97 Ill. App.2d 7, 239 N.E.2d 459 (closing argument).) While we have not found any case which expressly holds whether or not a closing argument may properly be the basis of a judicial admission, it is clear that an attorney's admission in his opening statement to the jury may be the basis for a finding of a judicial admission.
The admission and use of such evidence is within the sound discretion of the trial court. ( Hedrich v. Borden; Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App.2d 253, 200 N.E.2d 149, aff'd (1965), 33 Ill.2d 326, 14 A.L.R. 3d 860, cert. denied (1966), 383 U.S. 946, 16 L.Ed.2d 209, 86 S.Ct. 1204.) We feel that discretion was not abused in the instant case.
The trial court sustained defendant's objection and expressed the opinion that admission of the photographs "would inflame and influence the passion and prejudice of the jury." • 1 As this court stated in Darling v. Charleston Community Memorial Hospital, 50 Ill. App.2d 253, 321, 200 N.E.2d 149, 183: "If evidence of this type has a reasonable tendency to prove some material fact in issue, such evidence may properly be admitted, and the question is one properly within the discretion of the Trial Court; if a photograph is accurate, properly identified, and relevant, the mere fact it may have a tendency to prejudice the jury is not sufficient to justify its exclusion; it is a matter within the Court's discretion: Pitrowski etc. v. New York C. St. L.R. Co. (1955), 6 Ill. App.2d 495, 128 N.E.2d 577. * * * Evidence having a natural tendency to establish the facts in controversy should be admitted; competent evidence may not be excluded merely because it might arouse feelings of horror or indignation in the jury; questions as to the character of the evidence offered, and the manner and extent of its presentation, are largely within the discretion of the Trial Court, and the exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the
The court denied the motion to strike, and we find no reversible error in this ruling. • 1 It is true that the allegation as to duty in paragraph 4 is conclusionary and surplusage. ( Darling v. Charleston Memorial Hospital (1964), 50 Ill. App.2d 253, at 310, aff'd 33 Ill.2d 326.) However, since there are factual allegations sufficient to give rise to the duty of disclosure, the failure to strike the allegations as to duty is harmless.
The general rule is that assignments of error will not be considered on appeal unless objection to the alleged prejudicial argument has been made in the trial court, a ruling of the court obtained and the record showing the objection and ruling preserved. Smith v. Illinois Valley Ice Cream Co., 20 Ill. App.2d 312, 331, 156 N.E.2d 361; Darling v. Charleston Community Memorial Hospital, 50 Ill. App.2d 253, 334 to 336, inclusive, 200 N.E.2d 149. Our attention has been called to an exception to the general rule, namely, that if prejudicial arguments are made without objection of counsel or interference by the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review the court may consider such assignments of error, even though no objection was made and no ruling made or preserved. Belfield v. Coop, 8 Ill.2d 293, 313, 134 N.E.2d 249. We have read the argument in the case at bar and find that while there may have been portions of it to which the trial court could have sustained objections had any been made, the overall argument was not prejudicial and was within the broad latitude granted to attorneys. Mokrzycki v. Olson Rug Co., 28 Ill. App.2d 117, 127, 170 N.E.2d 635; Reinmueller v. Chicago Motor Coach Co., 341 Ill. App. 178, 186. This was not a Belfield v. Coop, supra, type of argument.
Plaintiff argues that the practices in force in 1961 at the Medical College Hospital fall within the recognized legal principle of being no standard at all, or if in fact really practiced, to be standards of negligence. Plaintiff urges that the Court adopt the reasoning expressed in Darling v. Charleston Community Memorial Hospital, 50 Ill. App.2d 253, 200 N.E.2d 149, 179: Conformity with the standard of care observed by other hospitals in good standing in the same community cannot necessarily in itself be availed of as a defense in a negligence action where criterion relied upon is shown to constitute negligence, in that it fails to guard against injuries to the patient in failure to meet standards of care self imposed or established.
It is permissible practice to allow the display. E.g., Darling v. Charleston Community Memorial Hospital, 50 Ill. App.2d 253, 200 N.E.2d 149, 185 (1964), aff'd on other grounds, 33 Ill.2d 326, 211 N.E.2d 253 (1965), cert. denied, 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966). See, e.g., Rich v. Ellerman and Bucknall S.S. Co., 278 F.2d 704, 707-08 (2d Cir. 1960).
"The exhibition of an injury to a jury is within the discretion of the Trial Court, — a party may demonstrate the nature and extent of the injury, or the disability resulting therefrom, and it is common and correct practice to exhibit the wound or injury to the jury, even where there is no dispute as to the fact and nature of the injury. . . . Permitting the plaintiff to exhibit the stump of his amputated leg is within the sound discretion of the Court, even where the injury is fully described otherwise, and only if there be an abuse of such discretion manifestly prejudicing the defendant would such be reversible error. . . . The possibility that the demonstration may be unpleasant or gruesome is not determinative, but should be considered and weighed against the possible usefulness to the jury." Darling v. Charleston Community Memorial Hospital, 50 Ill.App.2d 253, 200 N.E.2d 149, 185 (1964) (citations omitted), aff'd, 33 Ill.2d 326, 211 N.E.2d 253 (1965), cert. denied, 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966). It is evident from the record that the trial court felt that the prosthesis and the photographs were relevant to the claims of plaintiffs and would aid the jury in understanding the nature, extent, and enduring consequences of the injuries suffered.