delivered the opinion of the court.
These appeals are from an order granting a new trial in an attractive nuisance case brought by Terry Alan Roberts, a minor. The jury found both defendants not guilty. The court granted plaintiff’s motion for a new trial against both defendants. The defendants prosecuted separate appeals, which, were consolidated here.
Plaintiff seeks to recover for injuries resulting from a fire started hy him in a newly completed, uninhabited building on August 16, 1953. Plaintiff, then a seventh grade pupil, lowered himself through a broken window into the basement. While there, he. dropped a lighted match on the floor, and this started a fire. As the flames “started to crawl over the paint to the paint cans,” he threw on the flames the “clear liquid” contents of a pail, and “blue flames” and “black smoke engulfed the whole room.” The fire damaged the new building and caused severe burns to the upper portion of plaintiff’s body. The defendant Hyland Builders Corporation was the general contractor in charge of the construction of the building, and defendant G. Gauss Painting & Decorating Company was the painting subcontractor.
The trial judge, in his remarks at the hearing of the motion, clearly defined his reasons for granting the new trial.
Prior to the trial, defendant Hyland was served by plaintiff with interrogatories, calling for the names and addresses of all employees of Hyland Builders Corporation that had worked in the building during its construction. During the trial, Hyland placed an employee on the stand and interrogated him at length before plaintiff discovered that the witness was not listed in Hyland’s answers to plaintiff’s interrogatories. The court struck the testimony of the witness and instructed the jury that the witness was disqualified and all of his testimony was to be disregarded. Defendant Hyland then placed another employee on the stand and after he was questioned as to his name and address, plaintiff moved to disqualify this witness on the ground that his address had not been listed by Hyland. After investigation and argument out of the presence of the jury, the court allowed plaintiff’s motion and instructed the jury that this witness was disqualified and his testimony (his name and address) should he disregarded.
Subsequent to the above, defendant Gauss tendered the disqualified witnesses as witnesses in its behalf, on the ground that it had not been a party to the interrogatory answers of Hyland. After discussion, the court again disqualified the witnesses because of the Hyland incident. The trial then proceeded to a conclusion.
During the final argument to the jury, plaintiff’s attorney stated that one of the owners of defendant Hyland testified that “it was the duty of some of the foremen of the subcontractors to lock up. . . . That’s his statement. . . . There’s no proof here by any one of his employees.” At this point, an attorney for defendant Hyland said, “Now, your Honor, I am going to object to that, because it was counsel himself that suppressed any proof on that subject.” The objection was sustained, and the jury was instructed to disregard the remark.
At the hearing on the motion for a new trial, and in discussing the final argument incident, counsel for defendant Hyland said, “It was an inadvertent slip of the tongue that I used the words that I did, but it was only — it was inadvertent in that I was taken by surprise by the type of argument that Counsel made all during his closing argument.”
After hearing counsel at length, the remarks of the court to counsel for defendant Hyland include, “You were the one who initiated the difficulties that we ran into, and I told you at the time that I didn’t know what effect it would have on the jury either way, and I was very dubious then whether we should continue. . . . But here we had two instances of witnesses being withdrawn from the stand because the Court disqualified them in the presence of the jury, and all the admonition in the world may or may not have any effect. . . .You can’t tell what goes on in a person’s mind, and if these people got the impression that the plaintiff was trying to suppress evidence, they would certainly not take it well. ... I am convinced, gentlemen, that regardless of which way this verdict went, justice would demand that I grant a new trial, and that’s what I am going to do. I think this case should be tried over because of the things that were committed during the course of the trial.”
The trial court is allowed broad discretion in granting a new trial, and the motion is addressed to the sound judgment of the court. Unless a clear abuse of discretion is affirmatively shown, the trial court’s decision in granting a new trial will not be reversed. A trial court is allowed greater latitude in granting a new trial than in denying one. (Thomas v. Chicago Transit Authority (1958), 16 Ill App2d 470, 476, 148 NE2d 833; Stobbs v. Cumby (1956), 9 Ill App2d 138, 142, 132 NE2d 448; Ledferd v. Reardon (1940), 303 Ill App 300, 306, 25 NE2d 116.) As was said in Josate v. Mack (1939), 302 Ill App 246, 248, 23 NE2d 778:
“Necessarily, the trial court should have the discretion to decide with finality whether a new trial is necessary in the interests of justice, as it is in his power to observe the multiplicity of situations as they arise during the progress of the trial and is in a better position to weigh the effect upon the jury and to judge whether or not substantial justice had been done.”
After examining the record in this case in the light of the above rules, we conclude that defendants have failed to show affirmatively a clear abuse of discretion in the granting of a new trial. We agree with the trial court that, with two witnesses having been withdrawn from the stand because the court disqualified them in the presence of the jury, “all the admonition in the world may or may not have any effect” if the jury received the impression that plaintiff was trying to suppress evidence. Prejudicial conduct during final argument has been recognized as a ground for a new trial in this state, regardless of whether the court has ordered the remarks stricken or not. Jacobson v. National Dairy Products Corp. (1961), 32 Ill App2d 37, 43, 176 NE2d 55.
The separate appeal of defendant Gauss is grounded on the theory that there was no evidence whatever of negligence on its part, and the trial court should have directed a verdict in its favor; also, that the trial incidents previously discussed were not caused by defendant Gauss. In view of our conclusion, a discussion of the evidence on the question of whether the trial court should have directed a verdict in favor of either defendant, or on the question of the propriety of the sanctions imposed by the court for defendant Hyland’s failure to properly answer plaintiff’s interrogatories, is not deemed pertinent. We agree with the trial court that it is not possible to separate the defendants “as to the harm that might have been done in the minds of the jury,” and that justice requires that this case should be tried over again as to both defendants.
For the reasons stated, it is our opinion that the order of the trial court, granting the motion for a new trial as to both defendants, was proper, and it is hereby affirmed.
Affirmed.
BURMAN, J., concurs. ENGLISH, J., dissents.