dissenting:
I disagree with the majority because I do not believe that Chrysler’s improper impeachment, even when taken together with Chrysler’s references to the nurse’s note during opening statement and closing argument, prejudiced plaintiff so as to deprive him of a fair trial. I find no prejudice in Chrysler’s references to the nurse’s note because I do not believe the improper impeachment destroyed or seriously damaged plaintiff’s credibility before the jury; the jury was already properly aware of plaintiff’s prior, serious back problems; and the references to the nurse’s note were relatively brief and insignificant in the context of the entire trial.
The trial court held that the incomplete impeachment of plaintiff was an attack on plaintiff’s credibility, the prejudicial effect of which was magnified because plaintiff was the only eyewitness to the accident, and therefore his testimony was crucial on the issue of liability. However, I do not think that Chrysler’s attempted impeachment of plaintiff by use of his alleged prior statement to a nurse was any more damaging to plaintiff’s credibility than Chrysler’s questions to plaintiff regarding prior statements he had made to Dr. Jemsek relating to his prior back problems. For example, plaintiff was asked the following questions and gave the following answers:
“Q. Do you recall going to Dr. Jemsek’s office on March 7th, just a couple days before the hood incident?
A. No. I don’t remember.
Q. Okay. Do you recall complaining that on March 7th that you were fine as long as you were sitting or lying down, but when you tried to get up and move around, you had a little trouble?
A. No. I don’t remember that.
Q. Did you ever remember telling anyone that you had to flex your knees when you got into the truck?
A. No.
Q. Do you recall if you were limping on that date?
A. Not that I remember, no.”
I see little difference between the impeaching effect of these questions and answers relating to statements plaintiff made to Dr. Jemsek and the complained-of question relating to his statement to the nurse, “And do you remember telling anybody on March 7th that when you get up in the truck that you have to get up on your knees and pull yourself up?” to which plaintiff responded, “Not that I recall.” Considering this single question in light of a great deal of other evidence which damaged plaintiff’s credibility, I cannot conclude that any additional impeaching effect of this one question would have been enough to have deprived plaintiff of a fair trial.
Furthermore, contrary to the majority, I believe that plaintiff’s prior statement to the nurse was substantiated by other evidence, i.e. plaintiff’s statement to Dr. Jemsek that he had to flex his knees when getting into his truck. While the majority finds that the two statements were substantially different, I disagree. I think the two statements are substantially similar and indicate substantially the same amount of disability.
Nor do I think that the substance of the alleged prior statement to the nurse, that plaintiff had to get up on his knees and pull himself into his truck, had such a prejudicial effect as to deny plaintiff a fair trial. Although the question asked of plaintiff had no substantive value in itself, Chrysler did refer to the nurse’s note in both its opening statement and closing argument. On both occasions, Chrysler’s attorney discussed plaintiff’s prior back problems and stated that plaintiff had told Dr. Jemsek that he had to get on his knees and pull himself into-his truck. While this is not a correct statement of the evidence, plaintiff did tell Dr. Jemsek that he had to flex his knees to get into his truck. As I pointed out above, I do not think the two statements are so substantially different that the improper references to the nurse’s note deprived plaintiff of a fair trial.
Furthermore, the jury was well informed by other, competent evidence that plaintiff had prior, serious back problems, including an injury to his lower back which required plaintiff to be hospitalized for five days only three weeks before his alleged accident. Dr. Jemsek, plaintiff’s treating physician, testified that plaintiff presented himself on February 16, 1981, with severe pain in the lower back and upper thighs. Plaintiff had to crawl instead of walk and could hardly get up and down. Dr. Jemsek diagnosed plaintiff as having acute low back strain and plaintiff was hospitalized and treated.
Although plaintiff seemed to recover from his acute low back strain and was released from the hospital, he returned to Dr. Jemsek on March 7, 1981, only one day before the alleged accident, complaining that he was fine as long as he was sitting or lying down, but that he had trouble when he tried to get up and move around. Plaintiff had to flex his knees when he got into his truck and was limping. Plaintiff was put on Meclomen, a nonsteroid anti-inflammatory drug, and continued on Flexeril, a muscle relaxant.
I think the references to the nurse’s note added little to this other properly admitted evidence of plaintiff’s prior back problems. Only two days before plaintiff’s alleged accident, on the same date as the nurse’s note was recorded, plaintiff told Dr. Jemsek that he had to flex his knees to get into his truck. This statement was made in the same visit as was the statement to the nurse, was properly admitted, and is substantially identical to the statement made to the nurse. The improper references to the nurse’s note were not sufficiently prejudicial as to deprive plaintiff of a fair trial.
Finally, the references to the nurse’s note were relatively brief and insignificant in the context of this entire lengthy proceeding. They were not emphasized to the jury by objections or otherwise. Instead, they came in the midst of other similar references and in all likelihood held little significance for the jury. I do not believe that these brief references to the nurse’s note changed the result reached by the jury, especially in light of the other evidence impeaching plaintiff’s credibility and of the substantially similar evidence of plaintiff’s prior back problems.
As the majority points out, a trial court’s order granting a new trial should not be disturbed by a reviewing court absent a clear abuse of discretion on the part of the trial judge. (Ramseyer v. Illinois Central R.R. Co. (1969), 110 Ill. App. 2d 95, 96, 249 N.E.2d 120, 120.) However, when the evidence supports the jury’s verdict and there is no showing that a party was denied a fair trial, it is an abuse of discretion for the trial court to substitute its judgment for that of the jury. Reidelberqer v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549, 416 N.E.2d 268, 270.
Here, both plaintiff and the trial court agreed that the jury’s verdiet was not against the manifest weight of the evidence. Because I do not believe that Chrysler’s references to the nurse’s note prejudiced plaintiff so as to deprive him of a fair trial, I would reverse the order of the trial court granting plaintiff a new trial.