Daniels v. Payne, 48 N.D. 60, 182 N.W. 1010. In Thomas v. Illinois Power Light Corp. 247 Ill. App. 378, the court said: "We are of the opinion, however, counsel erred in his argument in attempting to have the jury put itself in the position of the appellee."
• 4 The asking of jurors to put themselves in the place of an injured plaintiff is not looked upon with favor. Thomas v. Illinois Power Light Corp. (1928), 247 Ill. App. 378; Brant v. Wabash R.R. Co. (1961), 31 Ill. App.2d 337, 176 N.E.2d 13. • 5 The defendant asserts that counsel for the plaintiff committed other improprieties during the course of the trial and assigns as reversible error other issues; however, we do not deem it necessary to consider these additional matters for we can only conclude that the conduct of counsel for the plaintiff, which we have set forth, clearly deprived the defendant of a fair trial and consequently this cause must be reversed. It may well be that each of the incidents which we have set forth, standing alone, would not require a new trial; however, we made no determination on that matter but do conclude that their cumulative effect was so prejudicial as to make a fair trial impossible.
In Copeland v. Johnson, 63 Ill. App.2d 361, 367, this court, in holding that the parties received a fair trial, stated: "It is error for a plaintiffs' counsel to ask a jury to put itself in the position of a plaintiff, Thomas v. Illinois Power Light Corp., 247 Ill. App. 378 (1928); Brant v. Wabash R. Co., 31 Ill. App.2d 337, 176 N.E.2d 13 (1961). It is just as erroneous for a defense counsel to ask the jurors to place themselves in the position of a defendant.
No objection was made by opposing counsel. Defendants contend that this statement asked the jury to place themselves in the position of the plaintiff which has been held to be error. Thomas v. Illinois Power Light Corp., 247 Ill. App. 378. Both defendants cite as authority for reversal the case of Copeland v. Johnson, 63 Ill. App.2d 361, 211 N.E.2d 387.
"Now I don't know if any of us have ever been faced with these circumstances, but the only thing that I ask you as the one representing the defendant in this case is to place yourself in the same circumstances and ask you what would you do. And if you find yourself with the same results that happened here, I think that you must say that she used ordinary care and she was not guilty of negligence."[8-11] It is our opinion the argument was erroneous. It is error for a plaintiffs' counsel to ask a jury to put itself in the position of a plaintiff, Thomas v. Illinois Power Light Corp., 247 Ill. App. 378 (1928); Brant v. Wabash R. Co., 31 Ill. App.2d 337, 176 N.E.2d 13 (1961). It is just as erroneous for a defense counsel to ask the jurors to place themselves in the position of a defendant.
Plaintiff relies upon Quirk v. Schramm, 333 Ill. App. 293, 299-301, 77 N.E.2d 417 (1948) where Dr. Klabacha who had treated plaintiff for a broken arm at the time of the accident subsequently went into the armed forces, examined the plaintiff just prior to the trial and testified to her subjective symptoms there. The court stated: ". . . The evidence shows that Doctor Klabacha treated plaintiff Mary Quirk for a period of four or five weeks commencing on the evening of the occurrence and that about a year and seven months had elapsed from the time he had last treated her to the time of the examination made at the court house for the purpose of testifying. Defendants rely on Greinke v. Chicago City Ry. Co., 234 Ill. 564, and Thomas v. Illinois Power Light Corp., 247 Ill. App. 378. An examination of these cases discloses that in each case the physician who was called as a witness had not treated the injured person but had made an examination solely as a basis upon which to found an opinion to be given in a trial.
"Complaint is also made by the defendants with respect to the testimony at the trial in September of 1946 by Doctor Klabacha in reference to subjective complaints of pain on the ground that he was not her attending physician at the time of the trial. The evidence shows that Doctor Klabacha treated plaintiff Mary Quirk for a period of four or five weeks commencing on the evening of the occurrence and that a year and seven months had elapsed from the time he last treated her to the time of the examination made at the court house for the purpose of testifying. Defendants rely on Greinke v. Chicago City Ry. Co., 234 Ill. 564, 85 N.E. 327, and Thomas v. Illinois Power Light Corp., 247 Ill. App. 378. An examination of these cases discloses that in each case the physician who was called as a witness had not treated the injured person but had made an examination solely as a basis upon which to found an opinion to be given in the trial.
we are reluctant to reverse on the basis of argument of counsel, and are conscious of the fact that the greatest latitude should be permitted to an attorney in closing argument, within the discretion of the Trial Court (Walsh vs. Chicago Rys. Co., 303 Ill. 339, 135 N.E. 709, it is apparent that the type of argument, considered as a whole, made in the instant case goes beyond the latitude which should normally be given to counsel under such circumstances (Goad vs. Grissom, 324 Ill. App. 123, 57 N.E.2d 514). The circumstance that plaintiff's counsel stated, "you will recall anyone who takes the life of another is subject to giving his own life," and then refers to the words of a "child without a parent," and also referred to the hypothetical person in the community who "accepts $100.00 or $200.00 to endure the pain," were such potentially as to have improperly influenced the jury in the assessment of damages. It is not proper to have the jury put itself in the position of the appellee (Thomas vs. Illinois Power Light Corp., 247 Ill. App. 378, 388). The cumulative effect of these remarks in the light of a verdict of $88,500.00 for the death of the 59 year old man who was earning $519.00 to $572.
Neither of these, however, prevented a fair trial for defendant. The argument did not attempt "to have the jury put itself in the position" of the injured, as in Thomas v. Illinois Power Light Corp., 247 Ill. App. 378, 388, so far as the report of the case shows; nor does it urge counsel's "personal opinions or feelings on the jury" as in Goad v. Grissom, 324 Ill. App. 123, 129. Finally, we think that there was no error in the giving of plaintiff's instruction No. 9. It does not come within the rule in Signa v. Alluri, 351 Ill. App. 11, 20; it is only about one half the length of the complaint and is not directory. The term "proximate cause" used in the instruction is defined in another.
Complaint is also made by the defendants with respect to the testimony at the trial in September of 1946 by Doctor Klabacha in reference to subjective complaints of pain, on the ground that he was not her attending physician at the time of the trial. The evidence shows that Doctor Klabacha treated plaintiff Mary Quirk for a period of four or five weeks commencing on the evening of the occurrence and that about a year and seven months had elapsed from the time he had last treated her to the time of the examination made at the court house for the purpose of testifying. Defendants rely on Greinke v. Chicago City Ry. Co., 234 Ill. 564, and Thomas v. Illinois Power Light Corp., 247 Ill. App. 378. An examination of these cases discloses that in each case the physician who was called as a witness had not treated the injured person but had made an examination solely as a basis upon which to found an opinion to be given in a trial.