author: Mr. Presiding Justice Riess

text:
    Helen Webster Hatfield et al., Appellants, v. First National Bank of Danville, Illinois, et al., Appellees.
    Gen. No. 9,354.

      Opinion filed November 4, 1942.
    Opinion modified and rehearing denied February 2, 1943.
    John T. Allen and Allen, Dalbey & Foreman, all of Danville, for appellants.
    Bookwalter, Carter & Gunn, Meeks & Lowenstein and Rearick & Rearick, all of Danville, for appellees.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

■ Plaintiffs, Helen Webster Hatfield, daughter, as beneficiary of a life interest in the trust estate created by certain provisions of the last will and testament of Augustus L. Webster, deceased, and Helen Hatfield Purcell, Catherine Hatfield Olmsted and Rose Hatfield Allen, grandchildren of said testator in whom the assets of said trust estate will vest in remainder upon the termination of the above mentioned life estate, have appealed from certain adverse provisions of a final decree rendered against them and in favor of the defendant appellee, First National Bank of Danville, Illinois, individually, and as successor trustee of said estate under the terms of said will. The decree was rendered by the circuit court of Vermilion county on December 5, 1941, in a suit in equity wherein plaintiffs sought an accounting and recovery of the alleged previous market value of 308 shares of capital stock of the Palmer National Bank of Danville, Illinois, which had been purchased and held by the above named testator during his lifetime, and which said successor trustee was alleged to have negligently retained and failed to sell in default of its duties and obligations as such successor trustee under the terms of said will.

The will of Augustus L. Webster, who died in 1922, was dated February 10, 1915, and with subsequent codicils thereto was duly admitted to probate in the county court of Vermilion county on the 27th day of February, 1922. In addition to making a number of specific bequests and provisions, the will created a trust estate consisting of certain listed assets and the subsequent income and dividends accruing therefrom, for the benefit of his wife Eliza E. Webster, since deceased, and of certain children and grandchildren of the testator, on terms set forth in the will. The inventoried value of the estate of Augustus L. Webster, deceased, consisting of certain real estate and personal property was considerably in excess of $100,000. The provisions of said will and codicils, in so far as the same relate to the trust estate and bank stock in question read as follows:

“9th. I, Augustus L. Webster, give and bequeath to my wife, Eliza E. Webster, should she survive me, . . . Lots Seven (7) Ten (10) and Eleven (11) in Block Two (2) in James Spear’s Addition to Danville, Vermilion County, Illinois, with their appurtenances, and also all stock owned by me at the time of my death in the Webster Grocery Company of Danville, Illinois, . . . and also all stock owned by me, at the time of my death, in the Palmer National Bank of Danville, Illinois, to be transferred to her, or Mm, by my executrix, hereinafter named, or such person as shall settle my estate as of the date of the probate of tMs will, in trust for the uses and purposes following:
“ (a) To take and hold the legal title to said real estate and stocks in said Webster Grocery Company and the Palmer National Bank of Danville, Illinois, rent said real estate for periods not exceeding Ten (10) years, and collect the rents of said real estate, pay taxes, for insurance and all necessary and proper repairs to preserve the same and keep it productive.
“To take and hold the legal title to said stocks, vote the same as any other stockholder, collect and receipt for the dividends paid by the said Company in bank thereon until the final termination of the trust hereby created.
“From the death of my said wife, Eliza E. Webster, the entire net income of said trust property to be divided equally between my two daughters, Clara Webster Short and Helen Webster Hatfield, so long as they both may live; should either of my daughters, Clara Webster Short or Helen Webster Hatfield die before the termination of the trust hereby created, leaving a child or cMldren, her income from the trust estate shall be paid to her surviving child or children by representation until the termination of this trust; should either of my two daughters, Clara Webster Short or Helen Webster Hatfield die leaving no child or descendant of child surviving them, from her death to the termination of this trust her share of the income of said trust shall be paid to my surviving daughter, so long as she may live. ’ ’

A duly probated codicil to the will of Augustus L. Webster, executed on October 6, 1915, provides in part as follows:

• “First: That instead of my wife and instead of Owen A. McFarland, I hereby name, constitute and appoint the Commercial Trust & Savings Bank of Danville, Illinois, Incorporated, as the executor and trustee, to carry out the provisions of said will, and to that extent my will is hereby modified, but in all other respects the same is fully ratifiéd and confirmed, it being my intention that the executor and trustee herein named shall possess all the powers, and perform all the duties in said will mentioned, and by law implied in the premises.”

At the time of testator’s death in 1922 he left surviving him, his widow, Eliza E. Webster, who died testate in 1926, and two daughters, Helen Webster Hatfield and Clara Webster Short, the latter also having since departed this life leaving her surviving no children nor lineal descendants. The three coplaintiffs of Helen Webster Hatfield are her only children and are the only grandchildren of the testator Augustus L. Webster. Following the death of said testator, the Commercial Trust & Savings Bank qualified as executor of the will and completed the administration of his estate. It then assumed the performance of its duties as trustee of the trust estate provided for in the will, which included the bank stock in question, and in pursuance of an order of the circuit court of said county which directed such trustee “to take and hold the legal title to said stock, vote the same as any other stockholder, collect and receipt for the dividends paid by said corporations thereon until the final termination of the trusts by said codicil created. ’ ’ Such decree further provided that “said trusts shall terminate upon the death of the last one of the three persons above named, viz: Eliza E. Webster, Clara Webster Short and Helen Webster Hatfield, and thereupon said trustee shall distribute the balance of the trust funds and the body of said trust property to the grandchild or grandchildren of said Augustus L. Webster then surviving.”

As such testamentary trustee, it thereafter filed ex parte annual reports which were approved by the court, from the year of its appointment until September 5, 1931, when said trustee bank by virtue of an arrangement with the defendant First National Bank of Danville, Illinois, and the approval of such transfer by the proper State and Federal Officials and by due order of said circuit court, assigned and turned over its trust business and assets to said defendant First National Bank of Danville, and said bank was by an order of the circuit court duly appointed as successor trustee and so duly qualified and still continues to act.

The trust estate herein included among other assets the certain 308 shares of capital stock of the Palmer National Bank of Danville, and dividends of 6 per cent were declared and paid on said shares of stock of par value of $100 each in 1922 and of 12 per cent during the respective years of 1923 to 1926 inclusive; no dividends were paid in 1927 or 1928; a 5 per cent dividend was paid in 1929, no dividends in 1930, 3 per cent in 1931 and no cash dividends appear to have been paid thereafter. The stock was not listed on any stock exchange and the highest market value thereof contended for by the plaintiffs was $200 to $250 per share during the years subsequent to the testator’s decease, on the basis of which market value they seek recovery from the defendant, with 5 per cent interest thereon from such date as the court may find that the same should have been sold by the trustee.

In the latter part of the year of 1930, an assessment of $50 per share was made upon the capital stock of the Palmer National Bank, to meet the payment of which, the then trustee, upon petition therefor and leave of said court duly had and procured with the written consent of all of the beneficiaries who are now the plaintiffs herein, of date December 26, 1930, surrendered to the bank as purchaser, 76 shares of the bank stock of said trust estate at ah agreed valuation fixed in the order at $200 per share in discharge and satisfaction of the above stock assessment. Such beneficiaries were all of full age at the time, and expressly stated in such consent that they “represent to the court that we are acquainted with the matters above set forth; that it would be to our best interests that the court enter an order as above prayed and we hereby enter our appearance, and request the court to grant said petition. ’ ’

The foregoing proceedings were all had prior to the appointment of defendant on September 5, 1931. Shortly thereafter, upon consent of proper officials and order of court, a merger or consolidation occurred between the Palmer National Bank and American Bank & Trust Company; the Palmer National Bank stock having been changed from $100 to $20 par value (abst. 132, rec. 191) each shareholder receiving pro rata new shares in exchange for each old share (abst. 130, rec. 186, 187) and by such merger, the combined capital of $450,000 was reduced to $300,000 and stock allotted to the Palmer Bank stockholders on the basis of 3Vs new shares for each share held by them and to the American Bank stockholders at 1% new for each old share, so issued pro rata on the basis of required appraisements. From the record, we deem the validity of above transaction not to be in question and to have been valid. A later 50 per cent stock, dividend was issued and subsequently, upon demand of Federal Bank authorities requiring that 200,000 shares of preferred stock be issued in exchange for $200,000 in money, compulsory reduction of par value of stock resulted, from $20 to $6% per share, which, however, was not shown to have affected the actual value of all bank assets ; the slow assets being then charged off for collection from time to time thereafter. On June 30, 1941, the preferred stock issue had been reduced to $136,000 securing which there was held a certain reserve account and other items as undivided profits.

The court below, as prayed and recited in the complaint and by agreement of all parties to the suit, construed the provisions of the will of Augustus L. Webster creating the trust estate and the provisions of the will of Eliza E. Webster in relation thereto, as having vested title to the personal property so held in trust in the trustee for the use and benefit of plaintiff Helen Webster Hatfield for the term of her natural life with vested remainder to plaintiffs Helen Hatfield Purcell, Catherine Hatfield Olmsted and Bose Hatfield Allen, upon the termination of the said life estate and ordered distribution accordingly. Concerning such construction, no error is assigned on appeal and it is binding upon the parties hereto. McDonald v. Shimeall, 282 Ill. 42, 118 N. E. 399.

It does Hot appear that any request or demand was made by any of the beneficiaries to dispose of such stock at any time prior to, during or subsequent to the “depression” which occurred in 1929. Evidence was offered tending to show that certain purchases of stock in the Palmer National Bank were made between 1923 and 1928 at prices ranging from $200 to $250 per share. It did not appear that there was any market value or sales of any such stock between 1931 and 1939 except two small sales for $5 to $6.50 per share. The evidence tended to show that the stock in question was not salable while held by the defendant trustee and that no criterion existed for fixing a value at predepression prices. Kubin v. Chicago Title & Trust Co., 307 Ill. App. 12, 29 N. E. (2d) 859.

The final report of the predecessor trustee covering the period prior to December 1931, which included the principal depression years wherein the stock, together with all other stocks, whether bank or otherwise, made disastrous trends downward in their book, market and salable value, which fact not only appears from the evidence concerning the stock herein but was a generally prevailing condition of which the courts of review of this State and other States have taken judicial notice. In passing upon the question of whether or not a surcharge should be made against the trustee, one of the factors in the light of which alleged negligence may be considered is the existence and effect of the “depression” upon stock or property values in general of which the court will take judicial notice. In re Estate of Busby, 288 Ill. App. 500, 6 N. E. (2d) 451. Also see Pank v. Chicago Title & Trust Co., 314 Ill. App. 53, 40 N. E. (2d) 787. However, current economic depression does not render the trustee immune from' liability in the event of negligence resulting in loss to the beneficiary, since the existence of depressions, which tend to create stagnant or subnormal market conditions, do not result in the creation of legal moratoriums in so far as the due performance of affirmative duties by persons acting in a fiduciary capacity are concerned. The special and distinctive facts of each case must determine the liability or exoneration of the particular fiduciary whose conduct is in question. In re Estate of Busby, supra.

Trustees must employ such diligence and prudence as men of discretion and intelligence in such matters employ in their own like affairs. In determining whether a trustee has acted prudently, courts must look at the facts as they existed unaided by subsequent events. The court, in determining liability of trustees, must distinguish between trustee’s investment of trust funds and making or failing to make prompt disposition of securities received from creator of trust. Ordinarily, trustees who act honestly and with ordinary prudence are not liable for mere errors of judgment. (Tank v. Chicago Title & Trust Co., supra.) The court is not required to hold honest trustees liable for loss sustained by retaining an unauthorized security if the trustee acted honestly and prudently. A trustee receiving stock in testator’s estate under direction to continue the investment, will not, in the absence of negligence, fraud or other improper conduct, become liable for losses resulting from an honest mistake in judgment in the retention of stock in a declining market, before making sale thereof. A wisdom developed after an event and having it and its consequences as its direct source, is a standard no man should be judged by. (In re Estate of Busby, supra.) In re Clark’s Will, 257 N. Y. 132, 177 N. E. 397; In re Shipley’s Estate, 337 Pa. 571, 12 A. (2d) 343.

In an action in equity by beneficiaries against trustees seeking recovery of damages and further relief arising out of alleged negligent failure to sell stock before it has declined in value, the question of whether or not the defendant who is charged therewith is guilty of negligence by such failure becomes one of fact, to be determined by the chancellor who hears such cause from consideration of the whole of the evidence, and if a reviewing court cannot say that the finding of the chancellor upon such issues is against the manifest weight of the evidence, the decree of the trial court should be affirmed. (Kubin v. Chicago Title & Trust Co., supra.) While trustees under a will, whatever the .extent of their power and authority may be, must always act in good faith and with sound judgment and prudence (Merchants’ Loan & Trust Co. v. Northern Trust Co., 250 Ill. 86, 95 N. E. 59); the creator of a trust may nevertheless designate how the investment may or shall be made and what security may be taken or that the security may be dispensed with, and the trustee will be bound by such directions.

The statute of Illinois enacted in 1905, Ill. Rev. Stat. 1941, ch. 148, sec. 32; Jones Ill. Stats. Ann. 135.05, concerning the investment of trust funds when not otherwise provided for by will or other instrument creating such trust, is intended to be permissive and not mandatory where the instrument constituting or creating the trust provides for other investments than those named in the statute. Concerning the plaintiffs’ contention that the bank stock was not a proper investment under the above statute, it may be noted that in the instant case the bank stock in question was purchased and held by the testator over a period of many years prior to the time of his death, and was considered by him to be sound, and the dividends arising therefrom were made payable, together with certain dividends from the stock of his grocery company and ■ net income of his real estate over the period of a life estate and was to vest in remainder under a certain clause so provided in his will and so properly construed by the chancellor below.

The facts in the case of People v. Canton Nat. Bank, 288 Ill. App. 418, are illustrative of a case wherein we held that the negligence of the testamentary trustee was such as to create a liability for subsequent loss in the value of the»corpus of the trust estate. In that case, however, it was expressly shown that on repeated occasions the beneficiary had demanded that the trustee sell the stock, which he refused to do and the beneficiaries brought a purchaser to him who was ready, willing and able to pay $275 per share, which offer the trustee refused to accept. There was no acquiescence, either express or implied, on the part of the beneficiary therein to hold the bank stock as part of the assets of said trust estate. On the contrary, the trustee bank permitted its conflicting interests to adversely prejudice the rights of the beneficiary by refusing to sell said stock upon demand of the beneficiary, and we held under the evidence therein that the trustee became liable in a suit in equity to a surcharge for losses incurred thereby.

Under the facts and circumstances in evidence herein we see no force in the plaintiffs’ contention that the trustee became liable to the beneficiaries for breach of trust in neglecting to file suit against the predecessor trustee upon assuming its duties as successor trustee. At the time of the final report and discharge of the previous trustee in 1931, all the plaintiffs, then adults, entered their respective appearance in writing and expressly consented to the discharge of the former trustee and the appointment of the defendant trustee. They filed no suit at that time when they might have sued, filed no objection to the report, and made no request for the sale of the stock in question. Under such facts and circumstances, we hold that by so joining therein they have waived and are estopped in equity from asserting liability as against the defendant trustee for failure to file such alleged cause of action against the former trustee or to successfully assert any such claim against the trustee,under the facts appearing herein. (Catherwood v. Morris, 360 Ill. 473, 196 N. E. 519.) Prior thereto, they knew of their rights under the will as construed by the court in proceedings wherein they were parties; they had refused to pay stock assessments of $50 per share in 1930 and had consented in writing to turn in or cancel 76 shares of their bank stock in payment thereof, hence they knew of the condition of the stock which had paid diminishing dividends or no dividends after 1926, all of which was prior to appointment of defendant as trustee in 1931. Furthermore, in 1935 when moneys and stocks were turned over to Mrs. Hatfield from the estate, for which she gave receipts at the bank, Mrs. Hatfield was accompanied and advised by a member of the firm of counsel which was then and is now representing her. Sometime thereafter, the same was true as to other of the plaintiffs who attained the age of 30 years. From the record, plaintiffs cannot well assert now that they knew nothing of their legal rights in the premises until shortly before this suit was instituted in September 1940. For many years prior thereto, both before and after defendant was appointed successor trustee in 1931, all parties, by their respective conduct and from the evidence, appear to have depended upon an assumed probability that the value and earning power of the bank stock would make substantial recovery from the effects of the depression. This error in judgment, if such it was, must be considered in the light of the surrounding facts and circumstances existing at that time.

It appears from plaintiffs’ exhibit 7B (abst. p. 228) in evidence, that as late as January 11, 1940 in response to a letter of inquiry to the plaintiffs concerning the further retention of stock in the. Palmer-American National Bank then held by the testamentary trustee, the' plaintiffs Helen Webster Hatfield, Helen Hatfield Purcell and Catherine Hatfield Olmsted had signed a letter or statement that “we wish to advise that this will be your authority to retain the 773y¡ shares of stock in the Palmer-American National Bank until advised by me to dispose of same. I have also communicated with my three daughters and they also join in this request by signing as indicated below.” And again in response to a letter of inquiry dated April 11, 1940, following a conversation had with Mrs. Hatfield, the plaintiffs Helen Webster Hatfield and Catherine H. Olmsted, signed another letter in evidence as plaintiffs’ exhibit 7E (abst. p. 229) which was undelivered but read as follows: “You are trustee under the will of Augustus L. Webster and Eliza E. Webster and we are the beneficiaries of said estate. In this matter you hold 1160 shares of stock in the Palmer-American National Bank and 1570 shares of stock in the Webster Grocery Company of Danville, Illinois. This will be your authority to hold the above certificates of stock in this trust account until further advised in writing by us.” Whether or not the signed letters or statements were delivered to the defendant at the time, they were put in evidence by the plaintiffs and tended to show a continuing understanding and course of conduct on the part of plaintiffs, which, when considered with all other facts and circumstances in evidence, we deem to have been contrary to and inconsistent with their present contentions herein.

We believe the trial court was correct in finding and holding from the whole of the evidence that the plaintiffs have failed to prove by the greater weight of the evidence the allegations of negligence charged against the defendant in the complaint. In so holding on such question of fact which it was the peculiar province of the trial court to determine, we hold that the chancellor below acted in accord with and not contrary to the manifest weight of the evidence. (Pank v. Chicago Title & Trust Co., supra.) The defendant trustee, not being hable to a surcharge under the decree as affirmed herein, is entitled to recover its reasonable solicitors’ fees and costs as assessed by the chancellor below. Patterson v. Northern Trust Co., 286 Ill. 564, 122 N. E. 55, Kerner v. Peterson, 368 Ill. 59, 81, 12 N. E. (2d) 884. While not commenting on all assignments of error, we have fully considered the same and upon the whole, we are in accord with the findings of the trial court as expressed in its decree and in its further action in dismissing plaintiffs’ suit for want of equity and the same is hereby affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Huffman

license: Public Domain

text:
    Mandus DeMay, Administrator of Estate of Harold DeMay, Deceased, Appellee, v. Robert Brew and John C. Brew, Appellants.
    Gen. No. 9,790.

      Opinion filed December 22, 1942.
    Rehearing denied February 2, 1943.
    Thomas J. Welch and Vera M. Binks, both of Kewanee, for appellants; Clarence W. Heyl, of Peoria, of counsel.
    Bergland & Everett, of Calva, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This action arises from the death of plaintiff’s intestate, occasioned by a collision of a motorcycle, ridden by him, with an automobile driven by Robert Brew. The collision occurred on a ten foot, concrete highway which ran north from U. S. Highway 34, to the Midland Country Club in Henry county. The deceased was riding his motorcycle south upon said highway. Robert. Brew was driving the automobile north thereon. The accident happened on July 5, 1939, at about 2:30 o’clock in the afternoon. The car being driven by Robert Brew belonged to his father, John C. Brew, who is an appellant herein. The case was before this court at its May term, 1940, and reversed and remanded. (306 Ill. App. 505.) It is now before the court upon appeal by the defendants, from judgment upon a verdict in the sum of $7,000.

The complaint charged that Robert Brew was operating an automobile owned by his father, John C. Brew, at the time of the accident, and that same was the result of the negligence and wrongful conduct of the said Robert Brew. The driver of the car was a minor. An answer on his behalf by guardian ad litem, denied all charges of negligence or wrongful conduct, denied agency, and averred the accident was due to the negligence and wrongful conduct of the deceased. The father, by his answer, denied all charges of agency, and denied the boy had the ear with his knowledge or consent. There was no eyewitness to the accident, who testified. The physical facts connected with the collision furnished the substantial part of the evidence.

Mr. Brew was greenskeeper at the Midland Country Club. Mrs. Brew was in charge of the clubhouse and ladies’ locker room. The boy, Robert Brew, was working for the club. He was on his way to the country club when the accident occurred. The weather was threatening, and a storm was about to break. He stated to some of the officers at the hospital, that he was driving about 65 miles an hour in an effort to reach the clubhouse before the storm broke; that he was driving about the middle of the concrete roadway; and that he did not see the deceased until after the collision.

It appears that the left front tire was torn from the car; the left headlight and left front fender badly damaged; and the left side of the car slightly damaged. From the pictures introduced in evidence, it is apparent the left front fender and wheel of the car first came in contact with the motorcycle; and that the motorcycle was struck near the middle of the left side, just in front of where the seat is located.

Evidence on the part of appellee showed the de-" ceased to be of careful habits and experienced, in the operation of his motorcycle; that he. was. a strong, healthy, young man, living with his parents on a farm; and possessed of substantial earning capacity.

• Appellants argue five points for reversal. The first, is based upon the court’s refusal to direct a verdict for defendants. The fifth, is based upon the ground that the verdict is against the weight of evidence. Points two, three and four, are directed toward the question of agency as between appellants.

Over forty witnesses testified in the case. The evidence is too extensive to undertake a discussion thereof in this opinion.

The court is satisfied with the verdict of the jury-on the questions of fact so far as appellant, Robert Brew, is concerned. This eliminates points one and five urged by appellants for reversal. With respect to points two, three and four, on the question of agency, the court is of the opinion the evidence fails to establish agency between the father and son. This eliminates the last three-mentioned points urged for reversal. Where there is no evidence tending to support the verdict, a court of review may reverse a judgment without remanding it. Taylor v. City of Berwyn, 372 Ill. 124. Under par. (f) of sec. 92 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.092], a court of review has power, on appeal from a judgment • for damages against joint tortfeasors, to reverse the judgment as to one and affirm as to the other. Crane v. Railway Express Agency, 369 Ill. 110.

The judgment of the circuit court is affirmed as to appellant defendant, Robert Brew, and the judgment of the circuit court is reversed as to appellant defendant, John C. Brew.

Affirmed in part, and reversed in part.


author: Mr. Justice Wolfe

text:
    Trust Company of Chicago, Administrator of Estate of Albert Goodman, Deceased, Appellee, v. Peter Ancateau, Appellant.
    Gen. No. 9,800.

      Opinion filed December 22, 1942.
    Rehearing denied" February 2, 1943.

      Samuel Levin and Stanley Watson, both of Chicago, and Edgar J. Elliott, of Wheaton, for appellant.
    Martin & Schwartz, of Chicago, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This suit was instituted by the plaintiff to recover damages for the death of its intestate which resulted from an automobile accident while the decedent, Albert Goodman, was riding as a passenger in a car being driven by the defendant, Peter Aneateau. The case was tried before a jury and a verdict for the plaintiff. for $7,500 was returned. The defendant moved for a new trial, which was overruled. Judgment was entered on the verdict, to reverse which this appeal is prosecuted.

The defendant, his brother, and Albert'. Goodman and three other boys lived in the same neighborhood in the western part of Chicago and attended high school at 47th and Union streets. On the morning of the accident, December 20, 1940, the defendant and his brother left their home about 7:30 o’clock in their father’s Tudor Ford Sedan for school. ■ The defendant, a boy 19 years of age, was driving the car. They made several stops on the way and picked up Albert Goodman and three other boys. After arriving at the school, five of the boys decided not to attend school that day, but go for a drive. One of the boys in the car got out and went to school, and another boy took his place in the car. After driving in the city for some time, the plaintiff drove the car westerly on U. S. Highway No. 34, which is an extension of Ogden avenue.

About 9:30 o’clock the defendant was driving the car toward the west on the highway in the country a few miles west of Hinsdale. The highway had four driving lanes paved with concrete. The pavement at the time was wet, owing to a drizzle, but the rain did not obscure vision, nor cloud the windshield of the car. At this time, and near the place mentioned, Jack Stancy was driving his truck west in the north lane of the highway. The truck was loaded with eight tons, of steel and going about 17 miles an hour. A passenger car was being driven on the same highway and approaching the rear of the truck. The identity of the driver of this passenger car has never been ascertained. The defendant was approaching the two vehicles and it was his purpose to pass them.

The driver of the passenger car turned his car from the north lane into the passing lane south of the truck and passed the truck in safety. As the passenger car turned into the passing lane, the defendant arrived near the two vehicles and endeavored to pass them. At that moment, one W. C. Cavens, was driving a Buick automobile toward the east in the south lane of the highway and approaching the place where the defendant attempted to pass. The defendant’s car skidded sidewise across the highway, and collided with the Buick car driven by Cavens.

At the time of the collision, two boys, Thomas Pay-ton and Richard Walker, were seated in the front seat with the defendant. Bert Goodman and two boys were seated on the rear seat, Goodman on the right hand side of the car. The place of impact on the defendant’s car was the rear right side, and as a result of the force of the collision, the three boys in the rear seat were killed.

One charge of the complaint, under the ‘ ‘ Guest Statute,” is substantially as follows: The defendant wilfully and wantonly and with utter and reckless disregard for the rights and safety of others, drove his automobile on a wet and slippery pavement at a speed greater than was reasonable and proper, having regard to the traffic and the use of the way, and at a speed which endangered the life and limb of the persons lawfully present at the time and place, contrary to the provisions of Article VI, paragraph 49, subdivision A, of the Uniform Act Regulating Traffic on Highways, being section 146 of chapter 95½, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 85.178]; so that by reason thereof, the automobile so driven by the defendant, was caused to come in violent contact with the automobile of W. C. Cavens, whereby, the plaintiff intestate was injured, etc. The plaintiff tried the case on the theory that this charge of the complaint was proved by him by a preponderance of the evidence.

It is assigned as error by the defendant that the verdict is against the law and the evidence. It is urged by the defendant that the plaintiff did not prove by a preponderance of the evidence, that the defendant was guilty of wilful and wanton misconduct, as alleged in this charge of the complaint.

The law is, that a verdict will not be set aside in this court as being against the weight of the evidence, unless it is against the manifest weight of the evidence. (Corcoran v. City of Chicago, 373 Ill. 567.) In suits at law, where there is a conflict in the testimony, it is for the jury to weigh and determine the evidence admitted by the court as competent. (Mirick v. T. J. Forschner Contracting Co., 312 Ill. 343; Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131.) The above cases make it clear that a reviewing court is not to infringe on the right of trial by jury by weighing and determining if the plaintiff has proved his case by a preponderance of the evidence. (Carney v. Sheedy, 295 Ill. 78.) We do not overlook the rule that where the verdict or decree is clearly and palpably contrary to the weight of the evidence, it is the province and duty of a reviewing court to reverse, but where the evidence is conflicting, that of each party being sufficient, when considered alone, to justify a . finding in favor of such party, the rule referred to is not to be applied for the reasons stated in the cases above cited.

The evidence is that, just before the accident, Stancy heard the brakes of a car squeaking and looking into his rear-view mirror saw the passenger car about 50 feet behind him and attempting to pass him. Stancy testified: About 150 feet behind him the defendant’s car was going to attempt to pass the second car; “That is, all in the 3d lane and he started to go by and he started to skid broadside across the road, the front end was fairly south and the car coming from the opposite direction; the Ford car skidded into the Buick car. When I first saw the Ford it looked like it was already in the 3d lane.” The impact was about 50 feet in front of Stancy’s truck. When he first saw the defendant, he was going 50 miles an hour at least; and when the defendant’s car skidded, it was going about 40 miles an hour. The road there was level and straight.

Harold Goodlow, a deputy sheriff, testified that he arrived at the place of the accident a short time after it occurred; that the three boys who were alive were taken to a hospital in Hinsdale; that he had a conversation with the defendant, Peter Aneateau at the place of the accident, and again at the hospital. He further testified substantially as follows: I had Peter make a statement at the -hospital as .to how fast he was going. He was in a room with the Payton boy. I wanted to find out what had happened. Peter claimed they were going between 70 and 80 miles an hour, and that they were racing with a red car. Peter said first he would pass the red car, and then that car would pass him until he got near the place where the truck was, then the red car was supposed to pull over back of the truck; that the red car was following the truck, and he (Peter), was going to pass it. The red car pulled out from behind the truck, and he jammed on the brakes and skidded across the highway into Mr. Caven’s car; that he told this story about an hour and a half after the accident; that the defendant appeared all right and to know what he was saying; that he had some bruises on him; that he did not appear to have been treated for shook; that Peter was excited, but he believed he was rational and not under the influence of any drug.

Thomas Payton, aged 16 years, testified that he was “knocked out” by the accident, and that he did not remember about the truck on the highway, nor could he tell the speed of the defendant’s car at the time of the accident. He was in the same room at the hospital with the defendant, and that he did not hear any conversation between the defendant and an officer.

Richard Walker, aged 17 years, testified that the defendant was driving about 50 miles an hour before the accident; that he remembered seeing two cars and a truck just before that time; that a dark colored car was behind the truck and a red car was in front of the defendant’s car; that the red car was in the second lane, going at about the same speed as they were; that he didn’t know how far the various cars were behind each other; that he had no reason to notice that, and after things began to happen, didn’t have time; that a red automobile had been traveling along about the same speed they were since they got out of the city; that they passed that car once and it passed them once; that they were traveling behind the red car in the inner lane, and the red car had passed the dark car that was going along the shoulder of the road behind the truck; that just as the red car passed this dark car, the dark car evidently turned out to pass the truck; that the dark car was going only half our speed and pulled shortly in front of us. We went on the other side of the dark car toward the shoulder of the road Where the truck was at that time. I do not know if Peter turned the car toward the left, but the car skidded sideways into the third lane.

Objection to the competency of the defendant, as a witness, was waived by the plaintiff, and he testified on direct and cross-examination. The defendant testified that he did not know if he had a conversation with officers after the accident; that after he came to the hospital, he was dizzy and not feeling normal; that he had a cut on his head; that after an injection in his arm by a doctor, he did not feel much of anything. He denied that he told an officer that he had been driving the car 70 to 80 miles an hour on the morning of the accident, or that he had been racing with another car. He stated that he had not been racing with another car that morning.

Defendant further testified: “I was pretty far behind the truck when I first noticed it as I was- driving toward it in the passing lane. I approached the truck and the automobile behind it with caution, and as I got closer to them, I put down the gas to speed up a little more to make a complete pass, and the car behind the truck cut me off, and I put on the brakes. When I put on the brakes, the car skidded and spinned sideways on the wrong side of the road. When the car cut me off, I made an effort to go around it first to the extreme right; the car cut me off going to the left. At the right, it seemed to me I saw trees, and I did not want to hit those trees, so I cut to the extreme left; at the left I would have been running on the wrong side of the road, and it seemed to me there were cars coming against me and I put on the brakes. I made all the effort I could to dodge away. When all this began I was not exceeding fifty miles an hour. I saw that I couldn’t make it to the extreme right, and went to the extreme left and tried to get by. I saw that I could not do that either. I went in behind the car and the truck, more toward the car and it was behind it that I put on the brakes. The car behind the truck was in the passing lane, and the truck was on the shoulder lane. I tried to get between the two. As far as I know, only the red car was there with the truck.”

It is thus apparent that there is a conflict in the testimony as to the rate of the speed of the defendant’s car, and other circumstances before, and at the time of the accident. Failure of an automobile driver to observe the speed law, which prohibits a speed greater than is reasonable and proper, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person, may, or may not establish wilfulness and wantonness according to the rate of speed and the circumstances. (Balsewicz v. Chicago, B. & Q. R. Co., 240 Ill. 238; Streeter v. Humrichouse, 357 Ill. 234.)

The evidence favoring the plaintiff and the verdict, standing alone, is, that the defendant was driving a car on a public highway at the rate of speed of 70 to 80 miles an hour before the accident and racing with another car while the concrete pavement was wet and slippery, being aware that other cars were being driven on the highway, and that such cars used the passing lanes on the highway to pass vehicles being then driven on the highway. There is evidence tending to prove that the defendant, under the circumstances existing before, and at the time of his attempt to pass the truck and the car behind the truck, was driving his car at a high rate of speed. Whether his conduct at the time in question was, under the circumstances, wilful and wanton, was a question for the jury. We are unable to say that the evidence, tested as required by the case of Carney v. Sheedy, supra, is insufficient to warrant the conclusion reached by the jury and approved by the trial court. We cannot say that the verdict is contrary to the manifest weight of the evidence.

It is also contended by the defendant that the plaintiff failed to prove, by a preponderance of the evidence, that wilful and wanton conduct of the plaintiff’s intestate did not proximately contribute to the cause of the accident. The complaint did not allege that the decedent was in the exercise of due care for his own personal safety before, and at the time of the accident. The complaint stated a cause of action. (Walldren Express & Van Co. v. Krug, 291 Ill. 472.) The defendant, in his answer, alleged that the plaintiff ought not to have recovery herein, because the plaintiff and the plaintiff’s intestate were guilty of wilful and wanton conduct, which contributed to the cause of the accident. This allegation of the answer was denied in the plaintiff’s reply.

The court, at the request of the defendant, gave instructions numbered 3 and 4, as follows: “3. The jury is instructed that the plaintiff was held to the same degree of care for his own safety as the defendant in this case, and if you find from the greater weight of the evidence that the plaintiff’s intestate was guilty of wilful and wanton conduct at, or just prior to the accident in question, which proximately contributed to the death in question, then and in that case you will find the defendant not guilty.” “4. The jury is instructed that for an act to become wilful and wanton under the law, it must be shown by a preponderance or greater weight of the evidence that there is a degree of wilfulness or recklessness, which authorizes a presumption of an intention to injure generally on the person guilty of such act; otherwise there is no authority in law to conclude that such act on the part of the person complained against was either wilful or wanton.” We are not deciding if these instructions announced correct. propositions of law. There was no other instruction given, or offered by the defendant on the legal duty of the decedent for his own safety before, and at the time of the accident. The defendant cannot raise the question of the absence of evidence to establish negligence of the decedent, as his instructions submitted the question of the negligence of the decedent to the jury on the evidence in the case. (Haynes v. Century Coal Co., 171 Ill. App. 83.)

The defendant urges two objections to instruction No. 16, given at the request of the plaintiff, which quoted the charge of the complaint and concluded, “If you believe from a preponderance of all the evidence under the instructions of the court that the plaintiff has proved that the defendant was guilty of wilful and wanton conduct, as above set forth, and as alleged in its complaint, and that such wilful and wanton conduct, if any, caused or proximately contributed to cause the accident, injury and death complained of in this case, and you further find from a preponderance of all of the evidence under the instructions of the court that the plaintiff’s intestate, Albert Goodman, and the next of kin of the said Albert Goodman, deceased, at, and immediately prior to the accident, referred to above, were free from wilful and wanton conduct which caused or proximately contributed to cause his injury and death, then you should find the issues in favor of the plaintiff.” It is contended by the defendant that the instruction is faulty because it does not state (preceding the words of the instruction hereafter quoted), if you believe from a preponderance of all the evidence “that such wilful and wanton conduct, if any, caused or proximately contributed to cause the accident, injury and death complained of in this case.” The objection is hypercritical. An instruction was given which stated, on questions of fact which the plaintiff was required to prove he must have a greater weight or preponderance of the evidence. The objection is without merit. (Illinois Cent. R. Co. v. Warriner, 229 Ill. 91.)

It is next objected that the giving of instruction 16, a peremptory instruction, was reversible error, because it did not state that the jury must find from the evidence that Albert Goodman left him surviving next of kin. The evidence shows that he left surviving him his parents, and it was not a matter of dispute or contest at the trial by the defendant, that he did not leave next of kin. In a case of a surviving parent- of a minor child, the law presumes a pecuniary loss for the loss of services to which parent was entitled. (Armour v. Czischki, 59 Ill. App. 17; City of Chicago v. Hesing, 83 Ill. 204; Rockford, R. I. & St. L. R. Co. v. Delaney, 82 Ill. 198.) Proof that Albert Goodman left next of ldn besides his parents would have added nothing to the case, unless it would have been in augment of the damages. (Boyer v. Northwestern Elevator R. Co., 174 Ill. App. 161.) Which, of several persons claiming to be next of kin, are so in fact, and therefore, entitled to the benefit of the judgment and their proportion thereof, is to be determined and settled by the probate court. (Rockford, R. I. & St. L. R. Co. v. Delaney, supra.) Proof that the decedent left next of kin was sufficient. (Conant v. Griffin, 48 Ill. 410.) Technically, the instruction is faulty and not applicable to peremptory instructions. It is not a ground for reversal that an instruction assumes as proven a fact conclusively established by the evidence without contradiction. (Illinois Cent. R. Co. v. King, 179 Ill. 91; Gerke v. Fancher, 158 Ill. 375.) It is our opinion that the giving of the instruction was not reversible error.

In the defendant’s motion for a new trial, one of the grounds stated therefor was, that the court erred in giving plaintiff’s instruction No.-18, on the question of damages, and the instruction is criticized by .the defendant in his argument before this court. The instruction is substantially in the language of the statute Injuries Act, and it was not error to give it. (Deming v. City of Chicago, 321 Ill. 341.)

The other error relied on that the verdict is so grossly excessive as to clearly evince passion and prejudice against the defendant, and undue sympathy for the plaintiff, is not supported by citation of authorities, nor argued by the defendant in his brief and argument. (Alexander v. Brewerton Coal Co., 258 Ill. App. 281.)

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    Otto R. Blake for use of Elsie Richardson, Appellee, v. Union Insurance Exchange, Garnishee, and Union Automobile Indemnity Association, Appellant.
    Gen. No. 9,826.
    Opinion filed December 22, 1942.
    Rehearing denied February 2, 1943.
    Pallissard & Smith and Milo J. Fleming, all of Watseka, for appellants; James R. Hansgen and Hal M. Stone, both of Bloomington, of counsel.
    Robert F. Goodyear, of Watseka, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Elsie Richardson procured a judgment against Otto R. Blake in, the sum of $750 for personal injury sustained by her in an accident, while she was riding in the automobile of said Otto R. Blake. Otto R. Blake, for the use of Elsie Richardson, started a garnishment proceeding against the Union Insurance Exchange alleging that it had money and effects which it was withholding from him. Later, over the objection of the defendant appellant, the Union Automobile Indemnity Association, an Interinsurance Exchange, was also made a party defendant. This defendant filed its answer in which it denied that it was indebted in any way to Otto R. Blake. It admitted that it carried a policy of insurance indemnifying Otto R. Blake against damages that he might be compelled to pay to any one in case of an accident caused by his automobile, but claimed that they were not liable under the terms of this policy, because the insured was a member of the household of Elsie Richardson, and by the terms of said policy, they would not be liable for damages to her. They also claimed that in the prosecution of the suit in which Elsie Richardson was suing Otto R. Blake, he did not co-operate with the company in the defense of the suit, and refused to sign an appeal bond, therefore he had forfeited any rights which he might have under the insurance policy. The case was heard before the court without a jury. After taking the case under advisement, the court rendered a decision in favor of the plaintiff, and assessed the damages in the sum of $779.50 and costs of suit against the defendant. It is from this judgment that the appeal is prosecuted.

By agreement of the parties, a transcript of the evidence in the personal injury suit was admitted as evidence in the present suit, and the plaintiff introduced some additional evidence, at the conclusion of which the plaintiff dismissed the suit against the Union Insurance Exchange. The suit then proceeded against the other defendant.

It is insisted by the appellant,'the Union Automobile Indemnity Association, that the judgment should be reversed, because they were made a party defendant to the suit in connection with another defendant, and the suit having failed as to that defendant, it must fail as to them. We cannot agree with the appellant that the court erred in rendering judgment against them for that reason. The principal ease relied upon by the appellant to sustain its contention is Czyston v. St. Stanislaus Parish, 131 Ill. App. 161. An examination of that case discloses that the facts were different from the present case. In the Czyston case they attempted to introduce a new party without the formality of having the other party summoned into court, and the court held that that could not be done. In the present case the record shows that an- affidavit was filed alleging that the appellant was indebted, or held money and property and effects that by right belonged to Blake, and the appellant was properly summoned into court. The appellant filed an answer and denied that it had anything belonging to Blake, or any property that he was interested in, so we think that the appellant was properly before the court, and would be bound by any order made by the trial court. The record shows that the defendant appeared generally and defended the suit. It was held in Knude v. Prentice, 329 Ill. 82 that a special appearance must be made for the purpose of urging jurisdictional objections only and must be confined .to a denial of jurisdiction, as an appearance for any other purpose is general and waives jurisdictional objections.

It is urged by the appellant that the return of the execution by sheriff indorsed “no property found,” is not sufficient to support the garnishment proceedings. In the case of Zimek v. Illinois Nat. Casualty Co., 370. Ill. 572, it was stated, that under the statute a return of an execution “no property found” is necessary to support , garnishment, and where the return so states it is prima facie sufficient, until evidence is offered that the judgment debtor had property in the county subject to execution, and the prima facie case cannot be rebutted by attempting to show that the sheriff made no effort to serve the writ of execution. In the present case the return of the sheriff was in compliance with the statute.

After hearing the evidence, the court decided that Otto B. Blake was not a member of the household of the Bichardson’s and we think the record sustains this finding. The court also found that Blake had not .failed to co-operate with the appellant in the prosecution of the suit of Mrs. Bichardson against Blake. The case was tried before the court without a jury, and it was his province to judge the facts as presented by the evidence. Unless this court can say that his findings are contrary to the manifest weight of the evidence, we would not be justified in reversing his findings. After a review of all the evidence in the case, it is our conclusion that the court properly rendered judgment against the appellant company.

The judgment of the trial court is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Sullivan

text:
    Theresa Prill, Executrix of Estate of August Prill, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,558.

      Opinion filed December 30, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
    Finn & Miller, of Chicago, for appellee; Robert S.Cook, of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This is an action brought against the City of Chicago by plaintiff, Theresa Prill, as executrix of the estate of August Prill, deceased, for damages for his death which it is alleged resulted from injuries sustained when he fell into an excavation in Clybourn avenue near Southport avenue. The case was tried before the court and a jury. A verdict was returned by the jury in favor of plaintiff and against the defendant for $1,500 damages. Defendant’s motion for a directed verdict was denied and after overruling its motion for a new trial tbie trial court entered judgment on the verdict against the City of Chicago. Defendant appeals.

Plaintiff’s complaint is in the form usually employed in an action for wrongful death. The gist of the complaint is stated in the first additional count thereof as follows:

“That said defendant, on the day aforesaid and for a long time prior thereto, carelessly and negligently, permitted and allowed the public highway at the place aforesaid, to be and remain in a dangerous and unsafe condition, and caused, permitted and allowed a certain deep hole or excavation to be and remain in said highway at the place aforesaid.

“That said defendant had notice of the dangerous and unsafe condition of said public highway at the place aforesaid or by the exercise of ordinary care should have had notice.

“That on the day aforesaid, plaintiff’s intestate was then and there passing upon and across said public highway at the place aforesaid, and was both before and at the time of the injury in the exercise of ordinary care for his own safety.

“That by reason of the carelessness and negligence of said defendant, as aforesaid, plaintiff’s intestate then and there tripped, stumbled, fell and was, precipitated into said hole or excavation, and thereby as a proximate result of the carelessness and negligence of said defendant, as aforesaid, plaintiff’s intestate received injuries which resulted in his death on the 15th day of October, 1936.”

Defendant’s answer denied the material allegations of the complaint. No point is raised on the pleadings.

Numerous grounds are urged for the reversal of the judgment but we deem it necessary to consider only one of such grounds and that is whether the decedent was guilty of contributory negligence as a matter of law.

On October 8, 1936 at about 7:20 a. m. August Prill, the decedent, alighted from a southeasterly bound Clybourn avenue street car which had stopped at the intersection of Clybourn and Southport avenues to discharge passengers. Southport avenue runs north and south and Clybourn avenue runs southeast and northwest and intersects Southport avenue at an angle of about 45 degrees. The west curb of Southport avenue and the northeasterly curb of Clybourn avenue meet in a triangular point. Clybourn avenue was being widened and that portion of the street between the southwesterly rail of the street car tracks and the southwest curb was closed to traffic. The balance of the street was open to vehicular traffic as well as to pedestrian travel. The city had dug a trench on the northeasterly side of Clybourn between the northeasterly curb and the northeasterly rail of the street car tracks for the purpose of installing traffic signals, fire alarms and electric lights. This trench was about 9 feet long from the curb to the street car rail, from 2 to 2% feet wide and from 2 to 4 feet deep. Other than this trench there were no excavations nor were there any repairs being made on the northeasterly side of Clybourn avenue. The aforesaid trench was dug on Clybourn avenue from 17 to 25 feet northwest of the triangular point heretofore referred to. The decedent passed around the rear end of the standing southeasterly bound street car from which he had alighted and continued to walk in an easterly direction across the northwesterly bound Clyhourn avenue street car track. When he was about midway between the rails of the northwesterly bound track he found himself in a perilous situation. The standing street car on the southeasterly bound track, which was about 35 feet long, was to the southwest of him, an automobile was approaching him from the southeast on the northwesterly bound street car track and another automobile was rapidly approaching him from the northwest. When this latter automobile was a short distance to the northwest of the street car standing on the southeasterly bound track, it turned to the left into the northwest bound track on the wrong side of the street to pass said standing street car. When Prill found himself hemmed in by the street car and the two automobiles as indicated, the only way of escape open to him was to the east. After having been last seen between the rails of the northwesterly bound street car track he was shortly thereafter found attempting to get out of the aforementioned trench. There was no evidence as to how he got into the trench. It does not appear whether, knowing the trench was there, he jumped, ran or walked into it or whether, having no knowledge concerning the trench, he fell into it in trying to get out of the path of the approaching automobiles. The .dirt from the excavation had been thrown into a pile to the southeast side of the trench and at the time of the accident there was a barricade a short distance southeast of such dirt. In order to avoid being struck by the automobile approaching from the northwest the driver of the. automobile approaching from the southeast hurriedly turned his car out of the street car track toward the northeast curb. He did not succeed in stopping his automobile until after it had crashed through the aforesaid barricade and ran into and upon the pile of dirt. When he got out of his car he saw decedent attempting to get out of the trench and he assisted him out and took him to the hospital. The decedent died about a week later as j a result of the injuries he received by reason of his landing in the trench.

The only two witnesses to any part of the occurrence were Ralph Klingenmaier and Sam Guzzo and they testified in plaintiff’s behalf. As to that portion of the occurrence which he had seen Klingenmaier testified in substance that he was driving his Essex car northwest on Clybourn avenue and that Sam Guzzo was sitting beside him on the front seat; that they were going to work on a W. P. A. project at “Bryn Mawr and Sixty-fourth”; that “it was not real foggy, I would not say real fog, it was rather dark”; that he stopped his automobile at the southeast corner of Clybourn avenue and Southport avenue, before crossing Southport avenue, to wait for a pedestrian to pass; that the windshield of his car was clean and his eyesight was good; that he could see for quite a distance, at least a block or a block and a half and that there were no obstructions in front of him; that as he started his car across the intersection of Clybourn avenue and Southport avenue he saw “a man come out and off the street car ... I seen a man come out . . . behind the street car ... I seen him run across the street, then all of a sudden I saw another car coming up . . . coming right straight at him”; that this automobile was coming from the northwest on Clybourn avenue on the wrong side of the street and at a high rate of speed; that said automobile was about 25 feet behind or to the northwest of the man as he ran across the street; that the street car from which the decedent had alighted was standing still “when this other automobile driving at the rate of 30 or 35 miles an hour” passed said street car on the wrong side of the street; that just at that time Prill was between his (Klingenmaier ’ s) car and the other car and disappeared from his (Klingenmaier’s) vision; that he did not see Prill again until he got out of his car; that at that time Prill was partly out of the excavation ; that the other automobile coming from the northwest on the wrong side of the street forced him (Klingenmaier) to turn his car toward the curb; that his car crashed through the barricade and ran into the pile of dirt on the southeast side of the excavation; and that when the other automobile passed him, it was within 12 inches of his car and it continued on to the southeast.

At the time of the trial Sam Guzzo was ill and unable, to appear in court to testify. His testimony was taken by deposition and read to the jury. It substantially corroborated that of Klingenmaier.

There is no evidence in the record bearing upon Prill’s conduct at and immediately prior to the time of his injury except the testimony of Klingenmaier and Guzzo and there is no charge in the complaint that defendant was guilty of wilful or wanton conduct.

It was incumbent upon plaintiff to show affirmatively that at and immediately prior to the time of his accident Prill was in the exercise of reasonable care for his own safety. In Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, in approving this rule, the court said at pp. 274 and 275:

“In the absence of wilful or wanton injury on the part of the defendant the plaintiff cannot recover in an action for personal injuries unless it appears he was in the exercise of ordinary care for his safety, and in such case it is the duty of the court to direct a verdict for the defendant if there is no evidence tending to show affirmatively that the plaintiff was exercising due care or to raise a reasonable inference of such care. A party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution. . . . When the evidence is all considered, together with all the reasonable inferences to be drawn therefrom, in its aspect most favorable to defendant in error, we are constrained to say that she failed to prove one of the three essential elements of her case,— i.e., that she was in the exercise of ordinary care for her own safety. The court should have instructed the jury to find the defendant not guilty.”

The question of contributory negligence in an action brought for damages for personal injuries is separate and distinct from the question as to whether the defendant was guilty of negligence and it has been repeatedly held that notwithstanding the negligence of the defendant, if such is shown, contributory negligence bars recovery. In Reiter v. City of Chicago, 303 Ill. App. 60 (Abst.) this court held:

“ . '. . Even though the city may have been negligent in allowing the alley to remain in a state of disrepair for so long a time, it should still not be held liable under a clear case showing that plaintiff was not in the exercise of due care for his own safety. The courts of this State have repeatedly held that in the absence of wilful and wanton injury on the part of defendant, the plaintiff cannot recover for personal injuries sustained in an accident unless it appears that he was in the exercise of ordinary care for his own safety. Illinois Cent. R. Co. v. Oswald, 338 Ill. 270; Wilson v. Illinois Cent. R. Co., 210 Ill. 603; Pollard v. Broadway Cent. Hotel Corp., 269 Ill. App. 77.”

The material facts as to the manner in which Prill’s accident and injuries occurred are not in dispute. According to the testimony of plaintiff’s witnesses, Klingenmaier and Gruzzo, they saw the decedent alight from the southeast bound Clybourn avenue street car, pass around the rear end thereof and run or walk toward the east across the space between the two tracks and continue on until he was between the rails of the northwest bound track. Their attention was then diverted from decedent by the rapidly approaching southeast bound automobile and their own necessity of getting out of its path. Neither Klingenmaier nor Gruzzo testified that Prill looked either to the northwest or to the southeast before, at the time or after he emerged from behind the standing street car nor are there any facts and circumstances in evidence from which it can be reasonably inferred that he did so look either before he had reached the northeast line of said street car, at the time he reached that line or after he had passed said line. On the contrary the only reasonable inference that can be drawn from all the facts and circumstances in evidence is that he did not look when he reached the northwesterly line of the standing street car nor at any time until he found himself in a position of danger between the rails of the northwest bound street car track. Had he looked when he should have looked he must necessarily have seen Klingenmaier’s car traveling in a northwesterly direction in or partly in the northwest bound street car track and the other automobile traveling in a southeasterly direction also on the northwest bound track on the wrong side of the street or turning into said track. If Prill had looked when he reached the northeast line of the standing street car he could have readily seen from the distances these automobiles were from him and the rate of speed at which they were traveling, that he was likely to be struck by one or the other of them if he proceeded across the northwest bound track. There is not only no evidence in the record from which it could be reasonably inferred that Prill was in the exercise of due care from the time that he emerged from behind the standing street car until he was between the rails of the northwest bound track but the testimony of Klingenmaier and Gruzzo actually shows that the decedent was guilty of contributory negligence.

Since there is no evidence in this case nor facts or circumstances, considered in their aspect most favorable to plaintiff, from which it could be reasonably inferred that Prill exercised due care for his own safety when he walked from behind and went beyond the standing street car without looking to ascertain whether there was traffic approaching on the adjoining track, it must be held as a matter of law that he was guilty of negligent conduct which directly contributed to the injuries which resulted in his death.

In Myhre v. Chicago City Ry. Co., 216 Ill. App. 128, the plaintiff alighted from the rear platform of a street car, and, while that car remained standing, she walked behind it onto the adjoining track, where she was struck by a street car coming from the opposite direction. The plaintiff therein testified that she did not see the street car until just at the instant it struck her. In holding that the plaintiff in that case was guilty of contributory negligence the court stated at pp. 131 and 132:

“The purpose of looking, as an act of caution, is to determine what one shall safely do next; ordinarily this will be to move or to stand still; hence the looking must be done when and where one can act safely with reference to any danger observed, otherwise the act of looking is minus the element of caution. If plaintiff looked only the instant she was struck, she failed to look with the care and caution necessary for her safety, so that she must be considered as having moved towards the tracks and within the danger zone without looking. . . . She must therefore be held to have walked into the line of danger without using her sight, which if used would have saved her. Was such conduct under such circumstances the exercise of ordinary and reasonable care and caution for one’s own safety? We hold that it was not, but was negligent conduct on plaintiff’s part which directly contributed to the accident in question.”

In Ohnesorge v. Chicago City Ry. Co., 177 Ill. App. 134, the question of a pedestrian passing behind and beyond a standing street car onto an adjoining track without looking was again considered. In that case the court said at pp. 136 and 137:

“The question then is, was the father in this case guilty of negligence in leading the child around behind the south-bound car when he knew of the approach of the north-bound car, without looking for that car before leading the child upon the track in front of it? In our opinion, a person passing behind one ■ car and in front of another at a street crossing owes the duty to look before stepping on a parallel track, and that failure to do so is clearly negligence. Burke v. Chicago City Ry. Co., 153 Ill. App. 388; Von Holland v. Chicago City Ry. Co., 148 Ill. App. 320; Brown v. Chicago City Ry. Co., 155 Ill. App. 434. These decisions are in harmony with the decisions of the leading States of this country. It is useless for a pedestrian to look when a standing car is obstructing his vision. It is often too late to look after the pedestrian has stepped upon the parallel track because the approaching car may be so near at hand as to make escape impossible. The time when ordinary prudence requires a pedestrian to look is when he closely approaches and comes to the farther line of the standing car. Hornstein v. United R. Co. of St. Louis, 195 Mo. 440. If by the exercise of ordinary care on Ohnesorge’s part, he could have seen the approach of appellant’s north-bound car as he emerged from behind the south-bound car and approached the track on which the car was running, the law made it his duty to see the car under the facts disclosed by his own testimony, and if he failed in that duty, as we think he did, his failure would bar a recovery in this case. Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132.”

(Other cases to the same effect are Devine v. Chicago City Ry. Co., 203 Ill. App. 410; von Holland v. Chicago City Ry. Co., 148 Ill. App. 320; Brown v. Chicago City Ry. Co., 155 Ill. App. 434; Gibb v. Hardwick, 241 Mass. 546,135 N. E. 868; MacDiarmid Candy Co. v. Schwartz, 11 Ohio App. 303; Di Stephano v. Smith (R. I.), 102 Atl. 817; Gottstein v. Daly, 166 Wash. 582, 7 P. (2d) 610; Cohen v. Eastern Stages, 166 Conn. 210, 164 Atl. 383; Letts v. Cole, 310 Pa. 509, 165 Atl. 847; and Jones v. Florios, 248 Mich. 153, 226 N. W. 852.)

While it is true that Prill was not struck by either of the automobiles which were approaching him from opposite directions when he was between the rails of the northwest bound track, it is also true that he would not have been in such a perilous situation except for his own negligence.

It is idle to urge that the principles of law applicable to sudden emergencies can be invoked against the defendant. The excavation made in the street by the City of Chicago, whether it was or was not properly safeguarded, had nothing to do with the creation of the dangerous emergency with which Prill found himself confronted. That emergency resulted from Prill’s negligence in conjunction with the negligence of the driver of the southeast bound automobile or possibly of the drivers of both automobiles. Even though the City of Chicago had actively participated in causing the emergency, which it did not, still plaintiff would not be entitled to recover from it, since there was a complete failure of proof that Prill was without fault oh his part.

As already shown the decedent failed to exercise any care for his own safety up to the time he was last seen between the rails of the northwest bound track and it certainly cannot be said that there was any evidence tending to show that he was in the exercise of due care for his own safety from the time he was last seen until he landed in the trench. There is not a particle of evidence as to what his conduct was from the time he was last seen between the rails of the northwest bound track and the time he was next seen trying to get out of the trench and it was incumbent upon plaintiff to prove that the decedent was in the exercise of due care for his own safety not only at the precise time of his accident but immediately prior thereto. It was only a matter of seconds from the time Prill emerged from behind the standing street car without looking to the northwest or the southeast and the time he landed in the trench. His own negligence which directly contributed to the creation of the emergency which placed him in peril cannot be disassociated from his attempt to escape from such peril. As has been shown his only means of escape was to the east and the trench was only a matter of a few feet from the point where he was last seen standing between the rails of the northwest hound street car track. It does not appear just where Prill entered the trench, whether it was from the northwest, southeast or southwest side thereof but that is immaterial, since his landing in the trench was a direct result of his own negligent conduct which contributed to the creation of the dangerous emergency from which he sought to extricate himself.

Even though it be assumed that defendant was negligent in failing to provide proper barricades and warning signals around the trench and that Prill would not have suffered his fatal injuries if such barricades and warning signals had been provided still plaintiff would be barred from recovery because she failed to prove that the decedent was free from contributory negligence at and immediately prior to his accident. Prill’s freedom from contributory negligence was one of the essential elements of plaintiff’s case and in the absence of affirmative proof of this element this action cannot be maintained.

"While ordinarily the question of contributory negligence is one of fact for a jury to determine, where as here, there is no evidence in the record that Prill exercised any care for his own safety immediately prior to and at the time of his injury, it becomes a question of law.

We are impelled to hold that Prill was guilty of contributory negligence as a matter of law and that a verdict for the defendant should have been directed.

We have considered the other points urged but in the view we take of this case we deem further discussion unnecessary.

For the reasons stated herein the judgment of the circuit court of Cook county is reversed, and since it would serve no useful purpose to remand this cause, judgment is entered here in favor of defendant and against plaintiff.

Judgment reversed and judgment here.

Friend and Scanlan, JJ., concur.