author: Mr. Justice Friend

text:
    Claribel Rubottom, Appellee, v. Crane Company, Appellant.
    Gen. No. 40,203.

      Opinion filed October 31, 1939.
    Rehearing denied November 15, 1939.
    Alden, Latham & Young, of Chicago, for appellant; Carl R. Latham and Norman A. Korfist, both of Chicago, of counsel.
    Krohn & MacDonald, of Chicago, for appellee; Stuart B. Krohn, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Claribel Rubottom brought suit to recover damages for injuries alleged to have been sustained by reason of the negligent operation of defendant’s automobile. The cause has been tried three times and is now pending here on appeal from a judgment entered in the third trial. The first trial resulted in a verdict and judgment in favor of plaintiff for $2,700. We reversed the judgment and remanded the cause without discussing the liability of defendant because of improper and prejudicial remarks of the trial judge. The second trial resulted in a directed verdict and judgment in favor of defendant. That judgment was reversed and the cause remanded for another trial because we believed that the evidence presented a question of fact for the jury. Upon the third trial the jury again found for plaintiff, assessed her damages at $6,000 and judgment was entered accordingly. Defendant has appealed from that judgment.

Briefly stated the facts disclose that plaintiff, who resides in St. Louis, Mo., came to visit her sister in Chicago in 1933 and to attend the Century of Progress. On July 23 of that year, while walking north on Winthrop avenue at the intersection of Granville avenue, she was struck and severely injured by defendant’s automobile which was then proceeding in an easterly direction on Granville avenue. She had just emerged from a Walgreen drug store on the southwest corner of the intersection of these two streets and proceeded to cross Granville avenue in a northerly direction, on the west side of the street in line with the center of the crosswalk. A Yellow cab was parked in front of the drug store, facing east on the south side of Granville avenue, obstructing the view to the west. Plaintiff had cleared the front end of the parked Yellow cab, and was proceeding across the intersection, when she heard the screeching of brakes, and, glancing in a westerly direction she was suddenly confronted with defendant’s automobile, which was described by witnesses as running at a speed of 20 to 25 miles an hour, was struck by it and injured. At a point a short distance to the west there is a viaduct of the elevated railway company, so constructed that the south curb of the roadway as it passes under the viaduct is from three feet to four feet south of the south curb of the same roadway after it emerges from the viaduct going in an easterly direction; that is to say, there is a jog of some three or four feet in a northeasterly direction, so that a car traveling under the viaduct would be south of a line of the curb as it appears at the intersection in question, and upon emerging from the viaduct, and traveling in an easterly direction, defendant’s truck would necessarily come out from behind a line of cars parked at the south curb of Granville avenue. Under these circumstances it is apparent from the evidence and the physical characteristics of the location in which the accident occurred that defendant’s car emerged from behind the parked Yellow cab and immediately preceding the impact was traveling in a somewhat northeasterly direction as if approached Winthrop avenue.

Defendant has contended on all three appeals that plaintiff could not recover because she was not in the exercise of ordinary care for her own safety at and prior to the accident. The testimony relating to this question of fact is rather scant, as we said in our opinion on the second appeal, and is directed principally to the inquiry whether plaintiff looked toward the west after she had cleared the front end of the parked Yellow cab and before proceeding across Granville avenue. It is urged by defendant that plaintiff’s testimony on the third hearing varied from her statements on the two former trials, and that the evidence of the Yellow cab driver, seated in his parked cab at the intersection, clearly discloses plaintiff did not look either to the east or west before crossing the street, after she had cleared the front end of the cab. Under the circumstances, defendant’s counsel insist that there was no credible evidence adduced on behalf of plaintiff from which the jury could hold that she was in the exercise of ordinary care for her own safety. Nevertheless, two juries who heard the testimony, under proper instructions of the court, returned verdicts in her favor, and we are asked to hold as a matter of law that plaintiff was not in the exercise of ordinary care for her own safety, and to reverse the judgment of the trial court without remandment.

Plaintiff contends, of course, and argues at length that there was ample evidence upon which to base the verdict and judgment below. However, in view of the state of the record and the law applicable thereto we deem it unnecessary to enter into a discussion and analysis of the evidence for the following reasons: It may be conceded that plaintiff could not recover unless she adduced evidence from which the jury could find that she was in the exercise of ordinary care and caution for her own safety. This being the crucial factual question in the case, defendant specifically requested the court to propound the following special interrogatory to the jury with the general verdict: “Was the plaintiff in the exercise of ordinary care and caution for her own safety in proceeding across Granville avenue, a through street, immediately prior to the happening of the accident 1 Answer yes or no.” The jury answered the interrogatory “Yes,” and also returned a general verdict for plaintiff, assessing her damages at $6,000. Subsequent to the trial defendant made a written motion for a new trial, alleging the following grounds: “1. The verdict is against the weight of the evidence. 2. The verdict is against the law. 3. The verdict is against the law and the evidence. 4. The court should have directed a verdict in favor of the defendant. 5. The court erred in denying defendant’s motion for a directed verdict made at the close of the plaintiff’s evidence. 6. The court erred in denying defendant’s motion for a directed verdict made at the close of all the evidence. 7. The verdict is contrary to the instructions of the court. 8. There is no sufficient or substantial evidence tending to support the verdict of the jury. 9. The attorney for the plaintiff made improper remarks in the course of the trial and in the argument to the jury prejudicial to the defendant. 10. The verdict of the jury is excessive.” However, defendant lodged no complaint against the jury’s answer to the special interrogatory, which it had propounded, and made no motion to set aside or strike the answer of the jury in its special verdict. In this state of the record plaintiff’s counsel made a motion in this court, after the appeal was perfected and the briefs filed, to strike the portions of defendant’s brief which deal with the question of contributory negligence, to which counter suggestions were duly filed by defendant. The question thus presented is whether defendant is now conclusively bound by the jury’s answer to this special interrogatory, finding plaintiff “in the exercise of ordinary care and caution for her own safety. ’ ’ The law is apparently well settled that under the circumstances defendant is estopped from raising the question of plaintiff’s want of care for her own safety, ór the issue of contributory negligence. In the early case of Town of Cicero v. Bartelme, 114 Ill. App. 9, affirmed in 212 Ill. 256, one of the questions in issue was whether the defendant was guilty of any negligence in respect to the sidewalk upon which plaintiff fell and was injured. At defendant’s request the trial court submitted to the jury the interrogatory, “Do you find from the evidence that the Town of Cicero was guilty of such negligence as caused the injuries complained of,” to which the jury answered “Yes.” In discussing the question under consideration, the court said (p. 12): “In the written motion of defendant for a new trial the statement that the verdict is against the evidence applies only to the general verdict of not guilty, and it was not alleged that the special finding was contrary to the evidence. It cannot therefore be here assigned as error that the special finding is contrary to the evidence and it is conclusive upon the question of the negligence of the defendant. Voight v. Anglo-Amer. Prov. Co., 202 Ill. 462-466, and cases there cited.”

In Voight v. Anglo-American Provision Company, 202 Ill. 462, the objection was also made that the verdict was against the weight of the evidence, but since the special findings of the jury, made pursuant to interrogatories submitted to it, were not challenged as a ground for new trial, the court held (p. 466): “The objection that the verdict was against the weight of the evidence applied only to the general verdict and not to the answers of the jury to the special interrogatories submitted to be answered, as this court has already held. (Avery v. Moore, 133 Ill. 74; Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Empire Machinery Co. v. Brady, 164 Ill. 58) and that the special findings, not having been mentioned as a ground for new trial, could not be assigned as error in the Appellate Court, and that, such findings being unquestioned and substantially conclusive of the facts upon which the question of liability depended, the judgment could not, on the alleged error, be reversed.”

Defendant does not seriously challenge the soundness of this rule of law, but subsequent to plaintiff’s motion it filed a countermotion in this court for leave to amend the motion for a new trial filed in the trial court, by including as ground for a new trial the contention that there was no competent evidence in the record to sustain the special finding of the jury in its answer to the interrogatory submitted by defendant, and alleging that the special finding is against the weight of the evidence. And it is argued that we ought to allow this motion, pursuant to section 92 of the Practice Act, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.092], which defines the powers of the reviewing court and authorizes it in its discretion to exercise all or any of the powers of amendment of the trial court; to permit the record to be amended by correcting errors or by adding matters which should have been included; and by making any judgment or order which ought to have been given or made as the cause may require. It is also urged that section 4 of the act requires the court to construe the statute liberally, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.

If defendant’s motion were allowed it would eliminate consideration of the effect of the jury’s answer to the special interrogatory and necessitate a reconsideration of all the evidence to determine whether or not the verdict was against the manifest weight of the evidence and also whether, as a matter of law, this court ought to hold that there was no evidence from which the jury could fairly find that plaintiff was in the exercise of ordinary care for her own safety. Moreover, it would substitute a ground for the granting of a new trial which ivas never submitted to the trial court, namely, an objection to the special finding of the jury which the trial court therefore never had an opportunity to pass upon, and it would require us to determine whether it was error for the trial court not to set aside the finding of the jury when it was never asked to do so by counsel.

It must be conceded, of course, that the right to appeal is statutory, and any party who wishes to avail himself of that statutory right must conform to the statute, and courts of review will not vary the application or interpretation of the rules to suit the contingencies of the particular case. (Lewis v. Renfro, 291 Ill. App. 396.) In conformity with this principle of law the Practice Act requires a written motion for a new trial, specifying the grounds relied on (Ill. Rev. Stat. 1937, ch. 110, see. 68, par. 192). It was held in People v. Hatcher, 334 Ill. 526, that under the practice in this State decisions of the court made in the progress of the trial upon instructions, objections to evidence, or other matters of law arising in the cause which have been incorporated in a bill of exceptions, may be assigned for error and reviewed by an Appellate Court without any motion for a new trial, and are not waived by making a motion for a new trial if such motion is submitted without any points stated in writing; but “after a motion is made for a new trial, and the grounds thereof are stated in writing, the party is limited to the errors alleged in the written motion and all other errors are deemed to have been waived. (Chicago City Railway Co. v. Smith, 226 Ill. 178; Yarber v. C. & A. Co., 235 Ill. 589; People v. O’Gara, 271 Ill. 138; People v. Cione, 293 Ill. 321; People v. Perlmutter, 306 Ill. 495; People v. Vickers, 326 Ill. 290; People v. Gabrys, 329 Ill. 101.) ”

In People v. Amore, 293 Ill. App. 505, the court cited the provisions of the Practice Act that if either party desired a new trial he should before final judgment file the points in writing specifying the grounds in such motion, and said (p. 508): “The evident purpose of this act, and the reason for the holding of the Supreme Court in the various cases cited, in our opinion, is that the trial court be given an opportunity to correct its own errors, and that if such opportunity is not given, then and in that case, no errors, other than those noted in the written motion, may be urged in a court of appeal.”

Under the authorities there are several ways by which a party may escape from being conclusively bound.by the special finding of a jury: (1) by specific objection to the special finding on the motion for a new trial, or (2) by filing a specific motion to set aside the special finding when the motion for a new trial is made. Defendant resorted to neither of these motions. Under the decisions in this State a motion to direct a verdict at the end of plaintiff’s case is not sufficient to preserve such right, nor is the general objection that the verdict was contrary to the weight of the evidence. Rockwood Sprinkler Co. v. Phillips Co., 265 Ill. App. 267, is precisely in point. In that case the defendant urged as its principal ground of defense that the contract between the parties had been abandoned or canceled by agreement, and at defendant’s request the court submitted to the jury the following interrogatory: “ ‘Do you find from the evidence in this case and under the instructions of the court that on or about the 25th or 26th of February, 1925, an agreement was made between plaintiff and defendant to abandon the contract sued upon in this case?’ ” The jury’s answer to this interrogatory was “No.” Defendant subsequently filed a motion for a new trial but made no specific objection to the special finding, nor did it file any motion to set the finding aside. In commenting upon this state of the record, the court said (pp. 283, 284) quoting from the case of Brimie v. Belden Mfg. Co., 287 Ill. 11: “ ‘It has been held by this court that the defendant is conclusively bound by a special finding of fact such as is here involved unless error has been assigned thereon and the question has also been raised on the motion for a new trial. (Citing cases.) No motion was made by plaintiff in error to set aside this special finding of fact in the trial court nor was any error assigned thereon, either in the Appellate Court or this court. It is, however, contended here that the question was preserved by motion made by plaintiff in error in the trial court requesting that court to direct a verdict for plaintiff in error, and was also preserved in the motion for new trial by the general objection that the verdict was contrary to the weight of the evidence. Under the rulings of this court neither of these points can be sustained. . . . It is also argued by counsel that the general objection in the motion for a new trial that the verdict was contrary to the weight of the evidence was sufficient to question the validity of the special finding. We agree with the argument of counsel for plaintiff in error that a special finding is no more binding upon plaintiff in error than is the general verdict. The plaintiff in error is entitled to raise the correctness of a special finding on motion for a new trial, and may also take an appeal from the ruling of the trial court thereon. (Illinois Steel Co. v. Mann, 197 Ill. 186.) But the objection to the special finding must be specific, and it is not sufficient to simply raise the question by a general objection that the verdict is contrary to the weight of the evidence. ’ ’ ’

These decisions lead to the conclusion that defendant is estopped from raising the question of plaintiff’s want of care for her own safety, or contributory negligence, on this appeal, unless its motion made here to amend the motion for a new trial in the superior court is allowed. While we recognize and are in accord with the contention that a liberal construction should be placed upon the Practice Act, we do not believe that it contemplates a disregard of the rules established by an unbroken line of decisions in this State. Moreover, it would be manifestly unfair to allow the substitution of an additional ground in support of the motion for a new trial which was never submitted to the trial court, and which it consequently never had an opportunity to pass upon, and to hold that the trial court was in error in failing to set aside the special finding of the jury when it was never asked to do so. If defendant were permitted to amend its motion for a new trial in one respect, there would be no logical reason for denying other amendments, with the result that the cause when presented on appeal might include various important considerations never called to the attention of the trial court, and thus change the whole aspect of the case. The very purpose of the motion for a new trial is to give the trial court an opportunity to correct its own errors, and if such opportunity is not given by calling the court’s attention to the errors charged, the reviewing court would find itself at a loss to assign a valid reason for reversal. When defendant called the jury’s attention to the crucial factual question in the case at bar it answered the interrogatory adversely to defendant. This answer, solemnly given, remained unchallenged and amounted to an implied admission by defendant that plaintiff had established a prima facie case on the issue of her care for her own safety. Under the circumstances, the court’s denial of the motion for a new trial was correct, and obviously we cannot fairly hold that the court should have ruled otherwise. Plaintiff’s motion to strike the portion of defendant’s brief dealing with the question of contributory negligence, as well as defendant’s motion for leave to amend the motion for a new trial, were both taken under advisement with the ease. In view of what we have said plaintiff’s motion will be allowed and defendant’s denied. As the result of this ruling there remains only the evidence relating to the alleged negligence of defendant’s agent, who was driving the automobile at the time of the accident. On this question defendant states in its brief, on page 6, that “The Court is relieved from a consideration of the evidence on the question of the negligence of the driver of defendant’s car except so far as may be necessary to determine whether the plaintiff was in the exercise of ordinary care.” The amount of the verdict is not challenged, and no complaint is made that the cause was not otherwise fairly tried. The judgment of the superior court should be affirmed, and it is so ordered.

Judgment affirmed.

John J. Sullivan, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Justice Friend.

license: Public Domain

text:
    In re Petition of Edward White. Edward White, Appellant, v. Moses O. Youngblood, Appellee.
    Gen. No. 40,309.

      opinion filed October 31, 1939;
    rehearing denied November 15, 1939.
    Ellis & Westbrooks, for appellant; Richard E. Westbrooks, of counsel; Hubbard, Baker & Rice, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Ruth L. Heinichen, Administratrix of Estate of Clara Heinichen, Deceased, Appellee, v. Lyle Adin Evans, Appellant.
    Gen. No. 40,505.
    opinion filed October 31, 1939.
    Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel; Owens & Owens, for appellee; Thomas L. Owens and Vincent G. Rinn, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Graham McNamee, Minor, by George F. McNamee, His Father and Next Friend, Appellee, v. Marinus Lanenga, Appellant.
    Gen. No. 40,638.
    opinion filed October 31, 1939.
    Braun & Brodie, for appellant; John A. Bloomingston and Robert Cantwell, Jr., for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Mr. Justice Scanlan

text:
    Nathaniel Rubinkam, Practicing Law as Hoyne, O’Connor and Rubinkam, Appellant, v. Dr. Robert Archibald MacArthur, Appellee.
    Gen. No. 40,147.

      Opinion filed October 31, 1939.
    William A. Cannon, of Chicago, for appellant.
    John W. Browning, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action for attorney’s fees. The complaint consists of two counts, in each of which a separate and distinct cause of action is alleged. The trial court sustained defendant’s second motion to dismiss count one and entered judgment thereon for defendant and against plaintiff. The judgment was entered on the pleadings. This appeal, by plaintiff, concerns only the first count.

Count one alleges that plaintiff is an attorney practicing law in Chicago under the name, style and description of Hoyne, O’Connor & Rubinkam; that on January 31, 1934, defendant, Dr. Robert Archibald MacArthur, engaged plaintiff’s services as an attorney and requested him to render to defendant various legal services in connection with the estate of Mary A. Prescott MacArthur, deceased; that plaintiff performed all such legal services as were requested of him by defendant “as executor of the estate of Mary A. Prescott MacArthur, deceased,” which services were rendered from January 31,1934, to December 31,1936; that a petition for the issuance of letters testamentary in the estate was filed in the probate court of Cook county on January 31, 1934, and said letters issued on April 23, 1934; that the estate is still pending in said court; that immediately after plaintiff was so employed by defendant to represent the latter in his capacity as executor of the estate plaintiff proceeded to take all necessary steps in and about the opening of the estate, prepared and filed the inventory and did all other things necessary for the due and proper administration of the estate, which has a gross valuation of $400,000, consisting of various items of cash, stocks, bonds, real estate, and other property and securities; that the estate, because of the complicated character of the provisions of the will and the nature of the property included therein, required legal services of a highly specialized character and of a technical nature, together with a vast amount of clerical and office services in connection with the preparation of documents filed in the estate, legal research in connection with problems confronting the executor, preparation and compilation of figures concerning tax returns, and extensive estate accountings; that the reasonable, usual and customary charge for services rendered in an estate of this size, type and description, and for the nature and character of the work necessary and required for the probating of the estate during the period in question is the sum of $21,000; that there has been paid on account thereof by defendant to plaintiff the sum of $17,500, leaving a balance due and owing to plaintiff from defendant of $3,500, which amount defendant refuses to pay plaintiff, and therefore plaintiff brings Ms smt. Defendant filed a motion asking that the first count be dismissed as an insufficient statement of a cause of action. The motion avers, inter alia, “that said count seeks recovery for services performed for the executor of a decedent’s estate pending in the Probate Court of Cook County, Illinois; that any reasonable and necessary legal services rendered to the executor of a decedent’s estate is chargeable against the assets of said estate; that the Probate Court of Cook County, Illinois, has complete jurisdiction of all the assets of said estate, and therefore any claim for services rendered to the executor of this estate should be asserted in the Probate Court of Cook County, Illinois, in which said estate is pending.” Plaintiff then filed a pleading entitled, “Suggestions to the Court Amplifying Complaint at Law in the Above Entitled Cause.” It contains, inter alia, the following:

“Count I

“May it please the Court, the recital made in Count I stating the cause of action therein contained, alleges that there is due the plaintiff from the defendant, the net of Thirty-five hundred dollars after a payment of Seventeen thousand five hundred dollars on a claim of Twenty-one thousand dollars.

“The basis of the claim may be amplified by a payment made of Thirteen thousand five hundred dollars as per the report of David J. A. Hayes, special commissioner appointed by order of the Probate Court of Cook County, to fix and determine the fees of Bobert Archibald MacArthur, executor, and Hoyne, O’Con-nor & Bubinkam, attorneys for said executor, to and including January 24,1936, which report was approved by the Honorable John F. O’Connell, Probate Judge of Cook County, and further affirms that said sum covers payment for services to January 24, 1936.

“Plaintiff acknowledges a payment of Four thousand dollars on account of the claim for services rendered from January 24, 1936 to December 31, 1936, the date requested by defendant for plaintiff’s withdrawal as attorneys.

“From January 24, 1936, to December 31, 1936, plaintiff has rendered services to defendant more detailed in part as follows:

“150 hours work by a member of the firm
“145 hours work by attorneys employed by said plaintiff firm, senior grade
“25 hours work by attorneys employed by said plaintiff firm, junior grade

on which services so rendered plaintiff acknowledges that there has been paid on account by defendant, Four thousand dollars, netting a balance of Thirty-five hundred dollars constituting plaintiff’s claim in this count.” Then follows a detailed statement of the services rendered to defendant by plaintiff “at the special instance and request of defendant as executor of the estate of Mary A. Prescott MaeArthur, deceased, during the period from January 24, 1936, to and including December 31, 1936.” Defendant then filed a second motion to dismiss count one, which motion and the affidavit in support of the same are as follows:

“Now comes the defendant, Robert Archibald MacArthur, by his attorney, John W. Browning, and asks that the first count of the complaint be dismissed for the reason that the cause of action is barred by a prior judgment.

“This defendant, Robert Archibald MaeArthur, qualified as executor under the last will and testament of Mary A. Prescott MaeArthur and letters testamentary were issued to him by the Probate Court of Cook County, Illinois and said estate is now pending in the Probate Court of Cook County, Illinois . . . ; that on to-wit, March 5, 1937, the plaintiff in this suit, Nathaniel Rubinkam, filed his petition in the Probate Court of Cook County, Illinois, asking that the Probate Court allow him the additional sum of Thirty-Five Hundred Dollars for the identical services alleged to have been performed by him in the bill of complaint filed in this case; that Robert Archibald MacArthur filed his answer to said petition and that thereupon a hearing was had in the Probate Court of Cook County, Illinois, and an order was entered on June 23, 1937, by a Judge of the Probate Court of Cook County, Illinois, denying the petition of Nathaniel Rubinkam requesting said Thirty Five Hundred Dollars additional payment, copy of which order is attached to the accompanying affidavit. That thereupon Nathaniel Rubinkam excepted to the denial of said petition and prayed an appeal therefrom; that said appeal was allowed upon said Nathaniel Rubinkam filing a bond in the sum of Two Hundred and Fifty Dollars; that said bond was never filed, and said appeal was never perfected, and that the statutory time for making such an appeal has now expired.”

“Affidavit in Support of Motion to Dismiss Count One of Bill of Complaint

“John W. Browning being first duly sworn, deposes and says that he is the attorney for Robert Archibald MacArthur, and the duly qualified agent in this behalf of Robert Archibald MacArthur; that the defendant, Robert Archibald MacArthur, qualified as executor under the last will and testament of Mary A. Prescott MacArthur and letters testamentary were issued to him by the Probate Court of Cook County, Illinois, and said estate is now pending in the Probate Court of Cook County, Illinois . . . ; that on to-wit, March 5, 1937, the plaintiff in this suit, Nathaniel Rubinkam, filed his petition in the Probate Court of Cook County, Illinois, asking that the Probate Court allow him the additional sum of Thirty Five Hundred Dollars for the identical services alleged to have been performed by him in the bill of complaint filed in this cause; that Robert Archibald MaeArthur filed his answer to said petition and that thereupon a hearing was had in the Probate Court of Cook County, Illinois, and an order was entered on June 23, 1937, by a Judge of the Probate Court of Cook County, Illinois, denying the petition of Nathaniel Rubinkam requesting said Thirty Five Hundred Dollars additional payment, a copy of which order is hereto attached; that thereupon Nathaniel Rubinkam excepted to the denial of said petition and prayed an appeal therefrom; that said appeal was allowed upon said Nathaniel Rubinkam filing a bond in the sum of Two Hundred Fifty Dollars; that said bond was never filed and said appeal was never perfected, and that the statutory time for making such an appeal has now expired.” Attached to the motion was a copy of the order entered by the Probate court on June 23,1937:

“This matter, coming on to be heard on the cross petition of the law firm of Hoyne, O’Connor & Rubinkam, and upon the answer filed thereto by Robert Archibald MaeArthur, not individually but as executor under the last will and testament of Mary A. Prescott MaeArthur, deceased.

“And the court having heard evidence in open court in support of said cross petition and in support of said answer, and the court being now fully advised, and the said law firm of Hoyne, O’Connor & Rubinkam and Robert Archibald MaeArthur, as executor, being-present in open court and both of said parties being-represented by counsel,

“The court finds as follows:

“1. That the law firm of Hoyne, O’Connor & Rubinkam was employed by the said executor immediately after the death of Mary A. Prescott MaeArthur, on January 24, 1934, and performed services for said executor through and including the period ending December 31, 1936.

“2. That said law firm has heretofore been allowed the sum of Thirteen Thousand Five Hundred Dollars on account of their services rendered to said executor up to and including January 21, 1936; that said law firm has been paid the additional sum of Four Thousand Dollars for services rendered to said executor after January 21,1936.

“3. That the fair and reasonable value for the services rendered by the law firm of Hoyne, O’Connor & Rubinkam to said executor from and after January 21, 1936 is the sum of Four Thousand Dollars.

“It Is Therefore Ordered, Adjudged and Decreed that the payment of Four Thousand Dollars by Robert Archibald MaeArthur, as executor, to the law firm of Hoyne, O’Connor & Rubinkam for all services rendered by said attorneys to said executor from and after January 21, 1936, shall be and it is hereby approved and confirmed.

“It Is Further Ordered that the cross petition of the law firm of Hoyne, 0 ’Connor & Rubinkam, requesting an additional payment of Three Thousand Five Hundred Dollars shall be and it is hereby denied.

“It Is Further Ordered that the order heretofore entered directing the executor to segregate and hold as a separate fund the sum of Three Thousand Five Hundred Dollars, pending the disposition of said cross petition, shall be and it is hereby vacated, to the entry of which order the law firm of Hoyne, O’Connor & Rubinkam, by its counsel, Francis W. Peterson, accepts [excepts] and prays an appeal to the Circuit Court of Cook County, which appeal is allowed upon said law firm of Hoyne, O’Connor & Rubinkam filing a bond in the sum of Two Thousand Two Hundred Fifty Dollars, with surety thereon to be approved by the court.

“Enter:
“Harry McEwen
“Judge of the Probate Court
“June 23, 1937

“I take exception to the denial of the cross-petition, and this order and pray an appeal therefrom.

“Francis W. Peterson

“June 27,1937”

The order in the instant case dismissing count one contains, inter alia, the following: “on the ground that said cause of action in said count one is barred by a prior adjudication of the issues.”

Defendant’s first motion to strike count one was overruled, and plaintiff complains that the trial court should not have permitted defendant to file the second motion to dismiss the count. The order overruling defendant’s motion to strike count one contains also the following: “On motion of defendant’s attorney it is ordered that time for the defendant to answer the complaint filed herein is extended and leave be and the same is now given the plaintiff to file specifications of his claim within ten days and the defendant be and is hereby required to answer same five days thereafter.” Ten days after the entry of the above order plaintiff filed the “Suggestions to the Court Amplifying Complaint at Law in the Above Entitled Cause.” After this somewhat novel pleading was 'filed, defendant, in view of the fact that it amplified the complaint, had a right to plead or again move to strike. - Moreover, plaintiff concedes that the second motion was filed by permission of the trial court, and in view of the record and the liberal rules of the new Practice Act there is no merit in plaintiff’s contention that the court abused its discretion in permitting defendant to file the second motion.

Plaintiff contends that “an executor’s employment of an attorney to represent him regarding estate matters is a personal contract between the executor and his attorney”; that “no claim for such services can be filed by the attorney against the estate and the Probate Court has no jurisdiction to adjudicate the contract rights of the parties.” Plaintiff argues that an executor, to avoid personal liability, must “protect himself by having his attorney agree that his fee will not exceed whatever is allowed to be charged against the estate by the Probate Court.” While it may be conceded that an executor in the employment of an attorney incurs a personal liability and that the claim of such attorney for fees for services performed in the administration of the estate is, strictly speaking, enforceable against such executor in his individual capacity and not against the estate, nevertheless, it is settled law that the probate court has an undoubted right to allow an executor credit in his account for reasonable attorney’s fees paid to an attorney for legal services rendered such executor to enable him to properly and efficiently perform the duties of his office. It has always been the practice in this county for the probate court to exercise that right, and we question if lawyers who perform services for executors or administrators in the administration of estates in the probate court have ever looked to any other source than the assets of the estate for their fees. It is a legal maxim that an attorney must act toward his client with the most scrupulous good faith. Executors and administrators are seldom lawyers, and where an attorney intends to hold an executor or administrator personally responsible for his fee, good faith toward the client would seem to dictate that the attorney should so inform the client at the time the latter seeks his services. If an attorney gave executors or administrators, who sought his services, such information it would follow that he would not be overburdened with work in the probate court. It must be noted that in the instant case plaintiff is not suing upon an express contract with defendant.

Plaintiff contends that “the defense of res judicata requires that the former hearing must have been in a court having competent jurisdiction; that the parties were before the court in the same capacity, and that the issues and the relief sought were identical, whereas in this suit the jurisdiction of the Probate Court was limited and the parties and the issues were not the same as in this Superior Court case.” In support of this contention plaintiff argues that “even though a hearing may have been had in the Probate Court of Cook County on the question of attorney’s fees, that such a hearing could not be res judicata between the parties in this suit. The Probate Court is not a court of competent jurisdiction to determine the value of legal services not charged against the estate and could enter no order that would be binding on the plaintiff herein in this regard. Furthermore, the defendant was in the Probate Court in his capacity as executor whereas in this case he is defending as an individual. ’ ’

From the pleadings the following salient facts appear: Plaintiff acted as attorney for the executor (defendant) from January 31, 1934, to December 31, 1936; that about January 24, 1936, the probate court appointed a special commissioner to fix and determine the fees of the executor “and Hoyne, O’Connor & Rubinkam, attorneys for said executor, to and including January 24, 1936”; that the commissioner fixed the fees of plaintiff for the said period at $13,-500, and the probate judge of Cook county approved the special commissioner’s report and the $13,500 was paid plaintiff by the executor out of the assets of the estate. Plaintiff concedes that the $13,500 was in full payment for the said period. Plaintiff rendered additional services from January 24, 1936, to December 31, 1936, and acknowledges that he received $4,000 from the executor on account of such services. He states in one of his pleadings that on December 31, 1936, he was requested by defendant to withdraw as attorney for the executor. Plaintiff then made a claim for an additional $3,500 on account of services rendered from January 24, 1936, to December 31, 1936, and it is a reasonable assumption from the record that the executor refused to pay plaintiff the amount claimed and refused to present a petition to the court in reference thereto. Thereupon plaintiff filed Ms petition in the probate court asking the court to allow Mm the additional sum of $3,500 on account of services rendered the estate during the period last mentioned. The executor filed an answer disputing the claim. Plaintiff, at that time, regarded his claim as one against the estate and was seeking to have it paid out of the assets of the estate. He selected the forum in which to have his claim tried, and after the claim was filed the court, undoubtedly at the instance of plaintiff, entered an order directing the executor to segregate and hold as a separate fund the sum of $3,500 pending the disposition of plaintiff’s cross-petition. The probate court found, after a hearing, “that the fair and reasonable value for the services rendered by the law firm of Hoyne, O’Connor & Rubinkam to said executor from and after January 21, 1936 is the sum of Four Thousand Dollars,” and ordered that the payment of $4,000 by the executor to said law firm “for all services rendered by said attorneys to said executor from and after January 21, 1936, shall be and it is hereby approved and confirmed,” and further ordered that the cross-petition of the said law firm, “requesting an additional payment of Three Thousand Five Hundred Dollars shall be and it is hereby denied.” As further proof that plaintiff then regarded his claim as one against the assets of the estate, after the entry of the order by the probate court he excepted to the denial of his cross-petition and prayed an appeal therefrom.

In the instant case, plaintiff’s claim against defendant is based upon the theory of fact that he rendered legal services in the probating of the estate during the period from January 31, 1934, to December 31, 1936; that the reasonable, usual and customary charge for such services is $21,000, and that defendant has paid him on account of the said services $17,500, leaving a balance due plaintiff from defendant of $3,500. Plaintiff now argues that neither the doctrine of res judicata nor the doctrine of estoppel by verdict applies to the instant case because the probate court had not the power to enter an order that would have any binding effect upon the rights of the plaintiff in the present proceeding. In support of his contention he has cited a number of cases, none of which we deem applicable to the facts of the instant suit. We regard the instant suit, under the particular facts shown by the record, as sui generis, and in our opinion it would be a serious commentary upon justice if plaintiff’s claim against defendant were to prevail. At the instance of plaintiff the probate court was asked to determine the reasonable value of the services he rendered in the administration of the estate. He was then looking to the estate for payment of his fees. The court had jurisdiction of the subject matter of the petition, and, as we have heretofore stated, had an undoubted right to allow the executor credit in his account for reasonable attorney’s fees paid to plaintiff for legal services rendered the executor to enable him to properly and efficiently perform the duties of his office, and it was for the judge of that court to determine the amount that would constitute reasonable fees for such services. While plaintiff in the instant suit seeks a personal judgment against the executor, nevertheless he bases his right to recover upon the reasonable value of the services rendered by him to defendant as executor of the estate. The probate court made a finding as to the reasonable value of his services, and further found that he had been paid in full for such services. During the entire time that plaintiff acted as attorney of the executor he sought payment for his services out of the assets of the estate, and the $17,-500 that he received in payment of his services came out of said assets. Even after he withdrew as attorney for the executor he did not then assert any claim for fees against Dr. MacArthur personally, but presented to the probate court his cross-petition praying that he be allowed an additional $3,500 fee out of the assets of the estate. The present claim against Dr. MacArthur, personally, is clearly an afterthought. Plaintiff has had his day in court, and by every rule of equity he should be precluded from asserting the instant claim against Dr. MacArthur.

The judgment of the superior court of Cook county should be and it is affirmed.

Judgment affirmed.

John J. Sullivan, P. J., and Friend, J., concur.


author: Justice Scanlan.

text:
    Frank Patryn, Minor, by Joseph Patryn, Next Friend, Appellant, v. J. M. Zaccaria, Appellee.
    Gen. No. 40,239.
    opinion filed October 31, 1939.
    Marion J. Hannigan, for appellant; Miller, Gorham, Wescott & Adams, for appellee; Edward R. Adams and Herbert C. De Young, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Virginia Kleinow Warner, Appellee, v. Harry Burke et al., Defendants. Harry Cohen, Appellant.
    Gen. No. 40,515.
    Opinion filed October 31, 1939.
    Rehearing denied November 15, 1939.
    George Landon, of Chicago, for appellant.
    Heineman & Langsett and Wendell R. Manges, all of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action by Virginia Kleinow Warner, plaintiff, against Harry Burke, Montez Burke and Harry Cohen, defendants, for injuries received by her on March 6, 1937, when she was struck by an automobile owned by Harry Burke, defendant, and driven by Montez Burke, defendant. A jury returned a verdict finding Harry Cohen guilty and assessing plaintiff’s damages at the sum of $6,000, and finding Harry Burke and Montez Burke not guilty. The jury also returned answers to special interrogatories submitted to them, in which they found that Cohen was operating his automobile at the time and place in question in a wilful and wanton manner, and that Montez Burke was not operating' the Burke automobile at the time and place in question in a wilful and wanton manner. Judgment was entered on the verdict and defendant Harry Cohen appeals.

The complaint consists of four counts. The first charges that on March 6, 1937, Montez Burke was then and there operating the automobile of Harry Burke, defendant, with his permission, upon and along Potomac avenue at or near its intersection with another public highway known as Mayfield avenue, in Chicago; that on said date plaintiff was lawfully and rightfully upon and along or near the said intersection ; that said defendant then and there so carelessly and negligently drove the said automobile that as a direct and proximate result thereof the automobile ran upon and against and struck plaintiff with great force and violence; that at the time and place aforesaid said defendant drove said automobile at an unreasonable rate of speed. The second count charges that Harry Burke, defendant, permitted his automobile to be then and there driven in a wilful, wanton and malicious manner by Montez Burke, defendant, with a conscious disregard for the safety of plaintiff and others, in and along said Potomac avenue and the sidewalk parallel with said avenue, and then and there Montez Burke, defendant, ran said automobile upon and against plaintiff. The third count charges in paragraphs 1 to 4, inclusive, that on said date Harry Cohen, defendant, was the owner of a certain automobile and was then and there operating the same in a northerly direction upon Mayfield avenue near its intersection with Potomac avenue; that plaintiff was then and there rightfully in, upon and near said intersection ; that it was then and there the duty of said defendant to cause said automobile to be driven and operated, and to drive and operate said automobile, with due care and caution so as to prevent injury to persons rightfully and lawfully at the place and time aforesaid, and so as to then and there prevent injury to plaintiff. The count further charges that said defendant carelessly and negligently drove said automobile, that as a result thereof the automobile ran upon and against a certain automobile driven by Montez Burke, defendant, and that the automobile of Montez Burke, defendant, was thereby, as a direct result of said collision, thrown upon and knocked upon and against plaintiff; that at the time and place aforesaid defendant Cohen drove said automobile at an unreasonable rate of speed; that (paragraphs 10 and 11) by reason of the premises aforesaid plaintiff suffered great bodily injury, both internally and externally, and sustained severe and permanent injury to her back and spine (etc.). (Here follow allegations as to alleged injuries sustained.) The fourth count repeats and realleges paragraphs 1 to 4, inclusive, of the third count, and further charges that Cohen, defendant, not regarding his duty in the premises, and with a conscious disregard for the safety of plaintiff, and others, drove his automobile in a wilful, wanton and malicious manner in and along Mayfield avenue at or near the intersection of Potomac avenue and then and there ran his automobile upon and against and struck a certain automobile then and there driven and operated by Montez Burke, defendant, in an easterly direction in and along Potomac avenue near the intersection of Mayfield avenue and Potomac avenue, in Chicago, and that the automobile so driven by Montez Burke, defendant, was thereby and as a direct result of such collision thrown and knocked upon and against the plaintiff with great force and violence, and she was then and there, as a direct result and in consequence of the wilful, wanton and malicious conduct of defendant Cohen, knocked down and thrown violently to the sidewalk there. The count repeats the allegations of paragraphs 10 and 11 of the third count.

The answer of defendant Harry Cohen (hereinafter called appellant) admits the ownership and operation of the automobile he was driving; and the answer of the Burkes admits the ownership and operation of the automobile that Montez Burke was driving. The answer of appellant denies all of the charges of negligence, also the charges of wilful and wanton negligence, alleged in the complaint against him.

We deem it necessary to consider only one contention raised by appellant, viz., that the verdict as to him is against the manifest weight of the evidence, and that the special finding of the jury that he was guilty of wilful and wanton conduct was so unwarranted by the evidence that it conclusively shows that the verdict and the special finding resulted from prejudice rather than from a fair and impartial consideration of the evidence. Appellant argues that the finding of not guilty as to the Burkes clearly shows that the jury was not fair and impartial.

A few minutes after 9 a. m. on the day in question the automobile of appellant was traveling north on Mayfield avenue, the car of defendant Harry Burke, driven by Montez Burke, defendant, was traveling east on Potomac avenue, and the two cars collided within the intersection of the two avenues. At the time of the collision plaintiff was on the sidewalk on the east side of Mayfield avenue at a point about three and one-half feet north of the north curb on Potomac avenue. After the collision the Burke car swerved over to the northeast corner of the two streets, drove over the curb onto the sidewalk, smashed the side of the lamp post on the corner, struck plaintiff, and hurled her over the hedge on the premises on the northeast corner and against the front steps of the house located thereon. One of plaintiff’s witnesses testified that after she was struck by the automobile “she flew through the air perhaps twenty feet.” Another of plaintiff’s witnesses testified that “she must have traveled then twenty-five to thirty feet after she was struck.” Louis IClow, a witness for plaintiff, testified that the Burke car struck the tree in the parkway with such force that the bumper “was bent almost in a half curve by the contact.” The contact with the tree stopped the automobile. After the accident it was found that there was a “chip out of the [cement] lamp post,” and that some of the cement was “attached” to “the hood cap of the car.” The lamp post was located three and one-half feet from the east curb of Mayfield avenue and about nine feet from the north curb of Potomac avenue, and the tree was located about eighteen feet from the said curb of Potomac avenue. Montez Burke testified that the wheel was knocked out of her hand by the contact, and that she did not apply the brakes on her automobile “after the impact of the two cars.” Police officer Burton, assigned to the State’s Attorney’s office, a witness for plaintiff, testified that he heard the crash, turned around, and saw the Burke car “swerve over towards the north. As it did so it seemed to gain speed. Evidently she must have stepped on the accelerator.” After the collision the automobile of appellant came to a stop within the intersection.

Section 68, par. 343, ch. 121, Ill. State Bar Stats. 1935, provides: “Except as hereinafter provided motor vehicles traveling upon public highways shall give the right-of-way to vehicles approaching along-intersecting highways from the right and shall have the right-of-way over those approaching from the left.” The Burke car was being driven in an easterly direction, in other words, to the left of the Cohen car, and the latter car, therefore, had the right of way under the statute. (We will hereafter refer to certain decisions that construe section 68.) Appellant contends that the manifest weight of the evidence supports his theory of fact that he reached the intersection before the Burke car reached it; that he proceeded across the intersection with due care and caution, and that plaintiff was injured through no fault on his part. We are satisfied that the manifest weight of the evidence shows that the car of appellant reached the intersection first. Not only the testimony of appellant and his son, a high school student, sustains appellant’s theory of fact that he reached the intersection first, but it is also sustained by the testimony of certain witnesses for plaintiff. Fred Fross, testifying for plaintiff, stated that when he first saw the ears the Burke car was fifty feet from the intersection and appellant’s car was twenty-five feet from the intersection. Plaintiff testified that she saw the two cars approach the intersection; that the Burke car “was going pretty fast, in my estimation between 35 to 40 miles” an hour; that her impression was that the car of appellant “was going slow”; that she had driven an automobile and her experience enabled her to judge of the speed of a car. While plaintiff was not asked which car reached the intersection first, nevertheless, in view of the place of contact, the reasonable inference to be drawn from her testimony as to the speed of the two cars as they approached the intersection is that appellant reached the intersection first. No witness in the case save Montez Burke testified that her car reached the intersection first. She testified that when she started to cross the intersection appellant’s car was about forty to fifty feet back and that the speed of appellant’s car at that time was about thirty-five miles an hour. Martha Downey, a witness for plaintiff, stated that Mrs. Burke was traveling “pretty fast” at the time of the impact. The witness Fred Fross, whose testimony has heretofore been referred to, also testified that when he saw the Burke car fifty feet west of the intersection it was going “about 30 to 35 miles an hour . . . right up to the time that both cars met. . . . Honestly the east bound car did not slow down at any time it approached the intersection. . . . The north bound car was going just a little bit slower. In other words, he had started to put on his brakes and had slowed up a little.” Appellant and his son both testified that as appellant approached the intersection he slowed up a little and then started going again. Appellant testified that he was going about fifteen miles an hour when he entered the intersection; that the Burke car hit the left front fender of his car, tore the front bumper off, and pushed his car to the curb. Montez Burke testified that the right front wheel and fender of her car and the left front fender of appellant’s car “came together”; that her car then swung around again and struck the front of appellant’s car.

In Johnson v. Duke, 247 Ill. App. 372 (opinion by Mr. Justice Jones), the court states (p. 376): “We think the weight of the evidence shows that appellee had entered the intersection before appellant reached the west side of it, and that she was driving at a high and dangerous rate of speed at a place where her view was obstructed. Under the circumstances appellee had the right of way. While this right would not relieve him from the duty of exercising due care, he was entitled to assume that persons approaching on his left would observe the law and respect his right. (Partridge v. Eberstein, 225 Ill. App. 209.) The record does not show that appellee was guilty of contributory negligence as claimed by appellant, but on the contrary it shows that he was in the exercise of due care and caution for his own safety and that of his truck at and prior to the time of the accident. Appellant owed him the duty to approach with sufficient care to permit him to exercise his right of way. (Partridge v. Eberstein, supra; Zapf v. Kutten, 229 Ill. App. 406; McCarthy v. Fadin, 236 Ill. App. 300; Fisher v. Johnson, 238 Ill. App. 25.)”

In L. B. Piper & Co. v. Yellow Cab Co., 246 Ill. App. 487 (opinion by Mr. Justice Wilson), the court states (pp. 490, 491): “Plaintiff below, in the trial and here, invokes the statute of the state of Illinois to the effect that a person driving over and upon and along a public highway had the right of way, at the intersection, of a street or highway over vehicles approaching on his left, and that a person approaching an intersection should give the right of way to a person approaching said highway on his right. It is true and the courts have so decided, that there are instances where, in spite of the statute, a person approaching an intersecting highway, even though under the statute he would be given the right of way, would, nevertheless, by his conduct, be guilty of contributory negligence if he continues on his way under such circumstances as to constitute contributory negligence. But to say as a matter of law that a person so approaching a highway, in spite of the right granted him by the statute, would be required to stop and give the right of way to another, approaching on his left, under all circumstances, would, in effect, be to nullify the statute and deprive him of the right he might have by reason of its enactment. Moreover, if we should say that he would have no right to rely upon the statute and the rules of the. road, then the enacting of such a statute is a useless thing, because no motorist could rely upon it nor could he rely upon the approaching motorist on his left obeying the statute and the rules of the road. In other words, it would put a premium on the action of a person utterly disregarding the relative rights of motorists.”

In Partridge v. Eberstein, 225 Ill. App. 209, the court held that while a driver of an automobile which has the right of way is not relieved from the duty of exercising* due care, such driver is entitled to assume that the driver of another automobile, approaching on the left, will observe the law and give the right of way to the automobile on the right.

In Riddle v. Mansager, 254 Ill. App. 68 (opinion by Mr. Justice Jones), the court states (pp. 73, 74): “The driver approaching from the right has the right of way over one approaching from the left, unless the car on the right is sufficiently far away, so that if being driven with due care, it will not reach the intersection until the car from the left can pass. (Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., supra [243 Ill. App. 89].) Any other interpretation of the statute would encourage racing* to the intersection. It is the purpose of the law to give the driver on the right a preference in passing through the intersection and it is the duty of the driver on the left to respect that right in accordance with the rule herein laid down. A driver on the left owes a duty to the driver on his right to approach an intersection with sufficient care to permit the latter to exercise his right of way. (Johnson v. Duke, 247 Ill. App. 372; Zapf v. Kutten, 229 Ill. App. 406; McCarthy v. Fadin, 236 Ill. App. 300; Fisher v. Johnson, 238 Ill. App. 25.) While the right of way does not relieve the one entitled to it from the duty of exercising* due care to avoid injuring another, he may assume that persons approaching the intersection on his left will observe the law and respect his right. (Partridge v. Eberstein, 225 Ill. App. 209; Johnson v. Duke, supra.)

As tending to prove that the jury did not fairly and impartially consider the evidence in the case appellant strenuously contends that the verdict of the jury finding the Burkes not guilty cannot be justified when all of the evidence is carefully considered. We agree with this contention. In plaintiff’s brief, filed in this court, her counsel states that “the conduct of the defendant, Harry Cohen, in the operation of his automobile was the sole direct and proximate cause of the injuries sustained by the plaintiff.” This statement is surprising, indeed, in view of plaintiff’s attitude in the trial court. In his closing argument to the jury counsel for plaintiff called the attention of the jury to a number of facts that he contended proved conclusively that Mrs. Burke was driving recklessly before and after the collision. After the jury had returned a verdict finding the Burkes not guilty, plaintiff, in addition to filing a motion for a new trial as to them, filed a “Motion for Judgment Non Obstante Veredicto as to Harry Burke, Defendant,” in which plaintiff averred that “under all the evidence in the case, after considering all inferences favorable to defendant, Harry Burke, no ordinary and reasonable man could find from such evidence that . . . the defendant, Montez Burke, was free from negligence in the operation of the automobile by her operated at the time in question, ... nor other than that except for the negligence of said defendant, Montez Burke, the injuries complained of would not have resulted to the plaintiff.” At first blush this motion of plaintiff would seem to be entirely unmeritorious, as Montez Burke testified that she reached the intersection first and proceeded to cross it before appellant reached it, thus making out a prima facie defense for the Burkes; but plaintiff, in the trial court, not only contended that the conduct of Montez Burke in entering the intersection, under the circumstances of the case, constituted reckless conduct, but that, assuming that she entered the intersection first, nevertheless, under all the evidence, including her own, she was guilty of negligence after the collision, and that but for such negligence plaintiff would not have been injured. Plaintiff, after the trial court had denied her motions as to the Burkes, appealed from the verdict and judgment finding Montez Burke and Harry Burke not guilty, but for some reason not disclosed by the record plaintiff in this court voluntarily dismissed her appeal as to them. The verdict of the jury as to the Burkes was entirely unwarranted under the evidence. After a careful consideration of all the facts and circumstances in evidence we have reached the conclusion that the verdict as to appellant is against the manifest weight of the evidence. The manifest weight of the evidence clearly shows that appellant had the right of way at the time and place in question and that there was nothing in his conduct that constituted contributory negligence.

The greater part of plaintiff’s brief is devoted to an argument in support of the contention that as appellant’s motion for a new trial was not preserved in the report of proceedings we cannot review the sufficiency or weight of the evidence. Counsel concedes, as he must, that appellant’s motion for a new trial and the order of the court denying the same are included in the common law record, and he further concedes that the trial court passed upon the motion for a new trial, but he contends that even if the motion for a new trial had been properly preserved in the report of proceedings it would be found “that the trial court had not committed error and that the trial court properly refused to grant the motion of the defendant, Harry Cohen, for a new trial.” In Pralle v. Metropolitan Life Ins. Co., 252 Ill. App. 460, decided before the enactment of the new Practice Act (opinion by Mr. Justice O’Coetuor), the court states (pp. 467, 468): “Counsel for plaintiff contends that the sufficiency of the evidence to sustain the verdict is not before the court, because ‘the bill of exceptions contains no motion for a new trial, order overruling the same, nor objection to such order,’ and that it is not sufficient that a recital in the comm on -law record shows that the motion for a new trial was made and overruled and an exception taken to such order. Since the amendment of 1911 to section 81 of the Practice Act, CahilPs St. ch. 110, par. 81, it is unnecessary to incorporate a formal exception into the record to preserve the rulings of the trial court for review. Miller v. Anderson, 269 Ill. 608. We think the point is not well taken. The judgment order itself obviously is a part of the common-law record and from it, it appears that a motion for a new trial and a motion in arrest of. judgment were made and overruled, and we think the court ought not to be so blind as to be unable to see this in the record. In fact we have never seen a record in a court of review where a motion for a new trial and a motion in arrest of judgment were made and overruled, that these facts did not appear in the judgment order. It is and has been the universal practice for a great many years. The clerk of the court writes into the record the orders that are given by the court.1» The merits of a controversy ought not to be decided on such technicalities.” In support of plaintiff’s instant contention certain cases are cited, that were decided prior to the passage of the new Civil Practice Act, which have no bearing upon the point in question. Plaintiff also cites subsection (c), Rule 1, sec. (1), Ill. Appellate Court, First District: ‘ ‘ The report of the proceedings at the trial consisting of the testimony and rulings of the trial judge and all matters upon which such rulings were made, and other proceedings which the appellant desires to incorporate in the record on appeal, shall be procured by the appellant and submitted to the trial judge or his successor in office for his certificate of correctness, or where this is impossible because of the absence from the district, sickness or other disability of such judge, then to any other judge of said court, and filed in the trial court within 50 days after the appeal has been perfected.” Plaintiff fails to cite section (4) of the same rule, which reads as follows: “A claim that any matter in the trial court record actually before the court on appeal is not properly authenticated may be raised only by motion filed by appellant or appellee before or at the time of filing his brief. Such motions shall be subject to the provisions of Rule 5, and each motion shall be supported by affidavit showing, not only that the matter complained of is not properly authenticated, but that it is in fact incorrect, and that injury will result to the objecting party because of its inclusion. Unless a motion is made in the manner required by this rule, the record shall be deemed to be correct.” Plaintiff filed no motion in accordance with section (4). Subsection (2), sec. 74, par. 198, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.074], reads as follows: “All distinctions between the common law record, the bill of exceptions and the certificate of evidence, for the purpose of determining what is properly before the reviewing court, are hereby abolished. The trial court record shall include every writ, pleading, motion, order, affidavit and other document filed or entered in the cause and all matters before the trial court which shall be certified as a part of such record by the judge thereof. All matters in the trial court record actually before the court on appeal may be considered by the court for all purposes, but if not properly authenticated the court may order such further authentication as it may deem advisable.” Paragraph 259.36, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 105.36], provides the general procedure with reference to appeals taken to the Appellate or Supreme Court, and in section (4) it provides: “A claim that any matter in the trial court record actually before the court on appeal is not properly authenticated may be raised only by motion filed by the appellant or appellee before or at the time of filing his brief. Such motions shall be subject to the provisions of Rule 49, and each motion shall be supported by affidavit showing, not only that the matter complained of is not properly authenticated, but that it is in fact incorrect, and that injury will result to the objecting party because of its inclusion. Unless a motion is made in the manner required by this rule, the record shall be deemed to he correct.” There is no merit in plaintiff’s instant contention, and the record before us must be deemed to be correct.

The judgment of the circuit court of Cook county should be and it is reversed and the cause is remanded for a new trial.

Judgment reversed and cause- remanded for a new trial.

John J. Sullivan, P. J., and Friend, J., concur.


text:
    William Polischuk, Appellee, v. E. Perry Vaughan and Carl Kustin, Defendants. E. Perry Vaughan, Appellant.
    Gen. No. 40,609.
    opinion filed October 31, 1939.
    Rawlins & Wright, for appellant; Fay Warren Johnson, of counsel; Hyland J. Paullin, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Sadie Clancy, Appellee, v. Guy A. Richardson et al., Defendants. Guy A. Richardson et al., Appellants.
    Gen. No. 40,614.
    opinion filed October 31, 1939;
    rehearing denied November 15, 1939.
    Frank L. Kriete, Anson H. Brown and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel; V. Russell Donaghy, for appellee; David A. Schallman and Leo G. Hanna, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full. ’ ’


text:
    Patricia Brett, Appellee, v. Century Petroleums, Inc., Appellant.
    Gen. No. 40,641.

      Opinion filed October 31, 1939.
    Robertson, Crowe & Spence, of Chicago, for appellant ; Burt A. Crowe, of counsel.
    Wright & Kamin, of Chicago, for appellee; Alfred Kamin, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Upon trial of an action for damages for personal injuries sustained by plaintiff a jury returned a verdict finding Century Petroleums, Inc., a corporation, appellant, guilty and assessing plaintiff’s damages at $600.

The complaint charges that defendants, Century Petroleums, Inc., a corporation, and Christ Chulos, possessed, operated and controlled a certain automobile service station at the corner of Western avenue and Peterson road, Chicago; that on January 5, 1935, plaintiff was a patron of defendants in said service station and was walking with all due care and caution for her own safety in and on said premises; that defendants then and there carelessly and negligently permitted a certain greasing pit to remain unmarked and unguarded without any signs or warning of danger, and- carelessly and negligently permitted certain parts of said premises to become and remain dark and unlighted so that they thereby became and remained dangerous to patrons; that as a direct and proximate result of the misconduct of defendants and while plaintiff was walking on the premises she was caused suddenly and without notice to her to fall into the pit, inflicting divers injuries upon her, for which she asks judgment. The defendants answered separately, and thereafter Chulos, the operator of the service station, was, on his own motion, dismissed from the cause. The answer of Century Petroleums, Inc., (hereinafter called defendant) denies the general allegations of the complaint and alleges that neither it nor its agents were guilty of the acts of negligence charged by plaintiff but that on the contrary the injury and damage to plaintiff, if any, was caused through her own fault and negligence.

Defendant contends that “the plaintiff was guilty of contributory negligence as a matter of law. a. The plaintiff failed to prove that before and at the time of the accident she was in the exercise of due care and caution for her own safety, b. The court erred in overruling the motion of the defendant to withdraw the evidence from the jury and instruct the jury to find the defendant not guilty at the close of the plaintiff’s evidence and again at the close of all the evidence, c. The court erred in refusing to grant defendant’s motion for judgment non obstante veredicto.”

The accident happened in defendant’s building, located at Western avenue and Peterson road, Chicago. Defendant operated a gas filling station, a building used for washing and greasing cars, and a second building, separate from the first one, that contained a repair shop. An office was located in the east end of the first building. Defendant’s premises were located on the southwest corner of the intersection of the two streets. Plaintiff, a married woman, owned a Pontiac car and on the evening in question drove it to the corner of Crawford avenue and Irving Park boulevard to meet a Mr. Frank, and at that point the latter got into plaintiff’s car. “It was a rather dark, hazy night; streets had melted snow on them.” At the intersection of Peterson road and Western avenue her car collided with another car, “just a slight bump.” Plaintiff states that the left front wheel of her car was damaged. Frank testified that the “automobile steering-knuckle was bent.” Frank went to defendant’s gas station to get assistance. He came back with an automobile mechanic from the station, Joseph Grabow, who, after looking at the car, told Frank and plaintiff that he “could fix the car up temporarily so that they could drive away.” Grabow said that he could not do the work on the car in the street and the car was driven to the gas station, either by Frank or Grabow, where it was stopped at “the third door of the west end of the building.” Frank and Grabow agree that the automobile remained in that position until it was repaired. The repair work was finished shortly after the accident to plaintiff, and plaintiff and Frank then drove the car from defendant’s premises. There were three garage doors, facing north, in the west end of the building, all of which were closed at the time. Grabow went into the shop, in “an extra building, not the garage building,” and got some tools and started to work on the car. Frank remained at the car watching Grabow do the work. Plaintiff testified that when the car stopped outside the west end of the building she walked from her car east to the office of the filling station and entered therein for the purpose of going to the “ladies’ room”; that at the time she entered the office her car was outside; that she had never been at the filling station before, and that “the whole set-up on the southwest corner covered by the gas filling station property and the buildings adjacent to it and on it were unfamiliar to me. ’ ’ She further testified that as she got out of the car the mechanic was walking toward a door to her right and he stated that he would take charge of the car, hut that she did not see what he did; that the office at the east end of the building was “an ordinary-lighted office”; that Mr. Chulos (operator of the service station) was in the office when she entered it and she saw a negro attendant coining out of the washroom; that the size of the office was about twelve by fifteen feet; that she remained in the rest room for about three or four minutes and then reentered the office; that Chulos was the sole person there at that time; that the office door through which she had entered was then closed; that she then turned to the left and went through an open door that she had seen an attendant go through and which she thought would lead directly to her car; that this door was on the west wall of the office and was wide open; that if there had been a “No Admittance” sign over this door she would have seen it; that Chulos was facing toward the open door; that at the open door there was a small step leading down from the office to the “garage”; that after she went through the door she saw a car parked there. During- her direct examination the following occurred: “ Q. There was a car parked there. A. Yes. Q. Where was this car parked in reference to this door-way that you went through? A. You mean, the distance or the position of the car? Q. The position of the car. Just tell us where that car was. A. . . . The car was drawn up so that the wind-shield was about even with the door. Q. How far was this car from the wall as you walked along there? A. There was just a passage-way; I would say, two feet. Q. What was the condition of the inside of this repair place in reference to lighting conditions? A. The corner was black. Q. What was the general appearance there ? A. There was a reflection from the light from the office through the door on this car, on the greasing pit. Q. Was there any light lit in the garage? A. No; not that I saw. Q. In so far as the garage doors were concerned, were there any windows in it ? A. At the top, I think, there was a reflection of the light through there. Q. Reflection of what light? A. The outside light. Q. What did you do then? A. I walked along the car. Q. How far did you walk along the car ? A. From the distance of the wind-shield to the back of the car, the end of the car. Q. Then which way did you walk? A. I turned left. Q. And then which way — What did you do? A. My foot hit the rail or whatever it is, and I went into the grease pit. Q. Could you see this grease pit? A. No.” Upon cross-examination plaintiff testified that her car was outside when she left it and that when she came out of the rest room she saw that the door through which she had entered the office, was closed. * Q. And the door, you say, that was at your left, that was wide open. A. Yes. Q. Did you know where you were going? A. I was going to my car. I supposed that had been driven in to be repaired. Q. You supposed it had been. A. Why, naturally. . . . Q. You had never been in that building or that garage before. A. No. Q. You walked through that door. That, you say, was open. A. I saw the attendant going through that door, and I went through the same door. . . . Q. The colored man. A. Yes. Q. When you went through that door, you were facing and walking towards the west, weren’t you? A. Yes. Q. Was it dark in this garage ? A. It was — I could see the reflection of the light on a car. The rest of it, I could see no light whatever. Q. As I understood you yesterday, you stated that outside of the light that was reflected on the automobile that was standing there, it was black, outside of that. A. I said the corner was black. Q. Which corner ? A. The corner where I fell in the pit. Q. That would be the northeast corner of the garage. A. Yes. Q. That was black. A. That was black. Q. Did you pay any attention or notice whether or not there were any electric lights lighted in the garage proper as you walked through that door? A. I couldn’t see any lights. Q. If there had been lights lighted, — obviously if there was one right in front of you, you could have seen that. A. Certainly. Q. So, your idea of it now is, at least, there were no lighted electric lights in the garage. A. There were none that I saw; none. Q. And the only light that you had to guide you in going into that garage and seeking for your car, which you supposed was in there, was the light that shone from'the office on to the side of an automobile that was standing near the office door. A. The automobile didn’t obstruct my view of the rest of the garage. Q. I say, the only light there was was that reflected from the office on to that car. A. That’s the light I saw. Q. Did you take any particular glance around the door as you went through it? A. I suppose, unconsciously I saw the door. Q. On the door there’s an ordinary wide door frame, isn’t there? A. I don’t remember particularly diagnosing the door. Q. • Did you look at the top of the door on the frame and see a white placard or piece of pasteboard— A. There was no— Q. I haven’t finished. Do you know what I am going to ask you? A. Yes. Q. What am I going to ask you? A. If there was any ‘No Admittance’ sign. There was not. Q. You didn’t see any ‘No Admittance’sign there, did you? A. No, sir. Q. . . . How far away from the garage door was this car that you saw standing there? A. Not very much further than the width of my body. Q. How wide is your body? A. I would say, two feet, at least, with my coat on. Q. So, about two feet from the door leading into the office from the garage stood an automobile. A. Yes. Q. So that, when you stepped out of the door of the office, you were right close to and beside the automobile, obviously. A. Quite close, yes. Q. You then turned to your right, and as you turned to your right or to the north,— A. Yes. Q. —you were then facing that northeast corner. A. Yes. Q. And that location where you were facing and walking towards was pitch black and dark. A. The floor was pitch black, yes. Q. What about five feet above the floor? Was that light? A. The reflection of gray, I would say. Q. Could you see where you were walking? A. I couldn’t see the floor, no. Q. . . . You didn’t know what was on the floor, of course. A. I thought it was just a concrete floor. Q. I am not asking what you thought. I say, you didn’t know what was on the floor, did you? Not being able to see it, obviously, couldn’t tell what was on it. A. It was concrete, yes. ... Q. I know, but you couldn’t see any objects on the floor. A. No objects. Q. It was that dark. A. Yes. Not at the door, back it was. Q. I am talking about looking towards this corner towards which you were walking. That was black, as you expressed it. You mean by that, it was dark and you were unable to see. A. Yes. Q. How many steps did you take towards the north, about? A. I would say, eight or ten, approximately. Q. . . . When you turned out of the door of the office and started towards the north, could you see the door of the garage? A. No. . . . Q. . . . The doorway that was open, through which you had just passed, did any light stream through there? A. It reflected on the car, yes. Q. Were there any windows in the wall of the garage or office— A. No. Q. —leading into the building or garage at all? A. No. Q. You are quite sure of that. A. There were no windows between the garage and office that I saw. Q. And you were taking very careful attention, weren’t you? You were careful, I say, as you went along. A. Self-preservation ; yes. Q. You knew you were in a strange place. A. Yes. Q. And you had to look out for yourself. You knew that, didn’t you? A. Yes. . . . Q. Now, you took, you think about eight or ten steps to the north. A. I walked the length of the body of the car. I would say that would be about eight or ten feet. Q. And having walked that eight or ten steps, did you then see the door of the garage in front of you or the wall or anything? A. No. Q. Anyway, you got to the end of the automobile. A. Yes. Q. You were still then in a dark place. A. Yes. Q. And you turned to the left. A. I did. Q. Why did you turn to the left. A. Because I expected that was where my car was. . . . Q. The car beside you, was that your car. A. No; but I thought the next one was. Q. When you got to the end of the automobile, were you looking ahead of you as you turned to the left to go west— A. No. Q. Around the end of the car? Were you looking ahead of you? A. No. I was looking to the side as I turned. Q. . . . Did you look at the floor ? A. Tes. Q. What? A. I was looking where I was going. Q. Could you see anything? A. No. Q. Could you see the floor, even? A. No. Q. Could you see your feet below you? A. I didn’t look at my feet. . ... Q. You couldn’t distinguish any objects on that floor. A. No. Q. It was that dark. A. Yes. Q. You turned back of the car. How many steps did you then take? A. I took— No, my foot hit this — whatever it was — and in I went. Q. What was it? A. I never saw it.” The witness further testified that she went outside after the accident and found her car was in the position where she had left it.

Henry Frank, plaintiff’s witness, testified that he drove the car into the gas station grounds and in front of the west door; that Grabow opened the door to get some tools; that plaintiff asked to go to the washroom and she got out of the car and walked to the office; that he watched Grábow work on the car; that the latter opened the west door and brought out an acetylene gas drum to heat that part of the machine that had to be repaired; that after Grabow had been working on the car a few minutes he, Frank, heard a scream, and an attendant hollered that a lady had fallen down into the pit; that he followed three or four people into the place where plaintiff was; that when he went into the “garage” (the place where the grease pits were) it was very dark, but that lights were then flashed on and the garage was brilliantly illuminated, so that he could see, plainly and easily, the pit and “all around me”; that “there was a flange on the edge of the pit, six or seven inches high . . . from the floor level”; that over the pit into which plaintiff fell there was an automobile that had been “driven to the far south end of the pit” ; that between the rear or north end of the automobile and north end of the pit “there was an exposure of about four feet”; that he did not know whether there was a sign, “No Admittance,” above the door leading into the room where the grease pits were, as he “didn’t pay any attention to warning’ signs. ’ ’ The undisputed evidence shows that there was but one car in the grease pit room at the time in question and that the employees who worked in the pits had ceased work for the day before the time of the accident; that each of the three pits was about twenty feet long, five feet wide and six feet deep. All of defendant’s witnesses testified that above the door leading into the room where the grease pits were was a sign, “No Admittance.”

“. . . The question of contributory negligence is one which is preeminently a fact for the consideration of a jury. It can not be defined in exact terms and unless it can be said that the action of a person is clearly and palpably negligent, it is not within the province of the court to substitute its judgment for that of a jury which is provided for the purpose of deciding this as well as the other questions in the case. As was stated in Thomas v. Buchanan, 357 Ill. 270: ‘The question of due care on the part of the plaintiff’s intestate is always a question of fact to be submitted to a jury whenever there is any evidence in the record which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care on the part of the deceased.’ ” (Blumb v. Getz, 366 Ill. 273, 277.) It is a settled rule that the question of contributory negligence in a given case must be decided upon the particular facts of that case.

Defendant contends that “plaintiff was a licensee upon the premises of the defendant and the only obligation the defendant owed to the plaintiff was to refrain from wilfully and wantonly injuring her. No such charge is made against the defendant in this case.” Defendant further contends that even though plaintiff be considered as an invitee to defendant’s office and washroom, that under no possible view of the evidence could she be considered an invitee into the room where the grease pits were located. Plaintiff contends that “plaintiff was an invitee upon the premises of the defendant and was entitled to the exercise of reasonable care for her safety”; that the facts and circumstances in the case indicate an invitation to plaintiff to enter the room where the grease pits were and “to traverse the premises along the pathway which resulted in this accident.”

“If appellee was a mere licensee and went upon appellants’ premises for purposes of his own and was not for any purpose connected with the business of appellants he cannot recover without proof that appellants knowingly and willfully injured him. The owner of premises owes no duty to exercise ordinary care to keep his premises in a reasonably safe condition to persons who may be upon such premises as mere licensees. (3 Elliott on Railroads, sec. 1250; Gibson v. Leonard, 143 Ill. 182; Illinois Central Railroad Co. v. Hopkins, 200 id. 122.) If, as appellants contend, appellee was a mere licensee at the time of his injury he is not entitled to recover, and the court erred in overruling appellants ’ motion to direct a verdict. On the contrary, if appellee was on the premises at the time and place of the accident by the invitation, either express or implied, of appellants, they owed him the duty to exercise ordinary care for his safety while upon said premises.” (Pauckner v. Wakem, 231 Ill. 276, 279.) In that case it was held that under the facts the plaintiff was lawfully upon the premises of the defendants by their implied invitation and that therefore they owed him the duty to exercise reasonable care for his safety while thereon. The court further held (p. 282): “Here the invitation to appellee was to go into the warehouse to get such goods belonging to his employer as were wanted, and for this purpose the invitation must be held broad enough to give appellee the protection of the law while lawfully upon that portion of the premises reasonably embraced within the object of his visit.” (Italics ours.) Plaintiff relies upon the Pauckner case in support of her contention that she was an invitee when she entered the room where the grease pits were and had a right “to traverse the premises along the pathway which resulted in this accident.”

In Chattanooga Warehouse & Cold Storage Co. v. Anderson, 141 Tenn. 288, 210 S. W. 153, 154, the court said: “Implied invitation is thus defined by Shear-man & Redfield on Negligence (6th Ed.) sec. 706: ‘Invitation by the owner or occupant is implied by law, where the person going on the premises does so in the interest or for the benefit, real or supposed, of such owner or occupant, or in the matter of mutual interest, or in the usual course of business, or where the person injured is present in the performance of duty, official or otherwise.’ The great weight of authority, however, qualifies this definition of implied invitation by providing that where one goes upon the premises of another, for any of the purposes stated ábove, he must confine himself to such parts of the premises as are included in the invitation. ’ ’

In Southwest Cotton Co. v. Pope, 25 Ariz. 364, 218 Pac. 152, 156, the court said: “We will grant in this case that Pope’s visit was for the mutual advantage or common interest of both himself and the defendant, and that seems to be the principal criteria distinguishing a visitor from a licensee . . ., still his visit should have been confined to that part of defendant’s premises set apart for the transaction of such business. . . . Prom the cases we think this rule, which we take almost word for word from Ryerson v. Bathgate, 67 N. J. Law, 337, 51 Atl. 708, 57 L. R. A. 307, is deducible: That the owner’s liability for the condition of his premises is only coextensive with his invitation, and it is incumbent upon a plaintiff to show not only that his entry upon the premises was by invitation of the owner, but also that at the time the injury was received he was in that part of the premises into which he was invited to enter, and was using them in a manner authorised by the invitation, whether express or implied.” (Italics ours.)

In Shaw v. Goldman, 116 Mo. App. 332, 92 S. W. 165, 167, the court said: “And therefore it has been frequently held that even though one comes upon the premises lawfully, as by invitation to trade or to labor, and enters other portions thereof .to which he was neither invited nor ordered, for the purpose of his own convenience, pleasure, or curiosity, he thereby becomes a licensee while occupying such portions of the premises to which he was neither invited nor ordered, and takes upon himself the risk of so doing, and in such case there is no duty incumbent upon the proprietor or the occupier of the premises to provide him a reasonably safe place, within the meaning of the rule herein-before indicated. ’ ’ Many other cases to the same effect might be cited, if it were necessary.

We may concede that plaintiff’s evidence shows.that she was an invitee to defendant’s office and washroom, but we do not think that it shows that she was an invitee to the room where the grease pits were and had the right, as an invitee, to traverse that room as she did under the conditions that surrounded her.

However, in our opinion there is but one question necessary to decide in passing upon defendant’s contention: Does plaintiff’s evidence show that she was guilty of contributory negligence as a matter of law? We are constrained to answer that question in the affirmative. In reaching this conclusion we have kept in mind the settled rule that if plaintiff presented any evidence fairly tending to prove the allegation of her complaint that at the time and place in question she “was walking on the said premises in the exercise of all due care and caution for her own safety,” then it cannot be held that she was guilty of contributory negligence as a matter of law.

It is undisputed that the car was taken to defendant’s premises so that Grabow “could fix the car up temporarily so that they could drive away,” and that when plaintiff left the car to go to the washroom it was standing outside of the west end of the building, and was never moved from that position until Grabow had repaired it. The work was completed a short time after the accident, at which time plaintiff and Frank drove away in the car from defendant’s premises. Plaintiff entered defendant’s office for the sole purpose of going to the ladies’ washroom. After remaining in the washroom for a few minutes she reentered the office. She testified that Chulos, the operator of the station, was then seated in the office. She did not return to the place where she had left her car to ascertain if it was still there, nor did she even speak to Chulos or to anyone else, although there were two colored attendants about the place. She testified that she had never been at the place before and that she was unfamiliar with the “set-up” of defendant’s buildings and premises; that she knew she was in a strange place and would have to look out for herself; that when she came out of the rest room she saw that the door through which she had entered the office was closed; that she went through the doorway leading to the room where the grease pits were to go to her car, because she “supposed that it had been driven in to be repaired,” and she thought the open door would lead directly to her car. Had she made an inquiry of Chulos she would have learned that cars were not repaired in that room but in a separate building, and that her car was still where she had left it. As soon as she stepped into the grease pit room she should have known that her car was not being repaired there, because the room was in darkness. She does not claim that she saw any sign or heard any sound that would indicate that there was any person in the room or that work of any kind was being done there. As we have heretofore stated, the undisputed evidence is that the employees who worked in the room had ceased work some time before the accident. Under the conditions that confronted her the natural instinct of self-protection should have caused her to at once reenter the office. The unfamiliar place, the darkness, should have warned her not to proceed. She had just had an accident, due, apparently, to the fact that it was a “dark, hazy night,” and that accident should also have tended to make her careful. She testified that after she entered the open door she traversed the room, as she did, because she thought that she would find her car next to the car parked there; and that when she got to the north end of the parked car she turned to the left, although she could then see nothing, not even the floor. Frank’s testimony shows that between the north end of the parked car and the north end of the pit, the pit was exposed for about four feet. Although the pit was five feet wide and six feet deep plaintiff could not see the exposure, and as a consequence stepped into it. It is difficult to understand why she took the risks she did merely to ascertain if her car was parked in the place.

After giving to plaintiff the full benefit of her evidence and the law applicable thereto, we are forced to the conclusion that her injury resulted from her gross carelessness at the time of the accident and immediately prior thereto.

Holding, as we do, that plaintiff was guilty of contributory negligence as a matter of law, the judgment of the superior court of Cook county is reversed.

Judgment reversed.

John J. Sullivan, P. J., and Friend, J., concur.


text:
    Martha Ehrenwerth, Executrix, Appellee, v. Carrie Moog, Appellant.
    Gen. No. 40,655.
    opinion filed October 31, 1939;
    rehearing denied and additional opinion filed November 15, 1939.
    Herbert M. Wetzel and William J. Earley, for appellant; George H. Sugrue, of counsel; Heile, Cavender, Milchrist & Kaiser, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.’’


text:
    John Wielgosiak and Lottie Wielgosiak, Appellees, v. Best Built Company, Appellant.
    Gen. No. 40,708.
    opinion filed October 31, 1939.
    Joseph B. Bergman, for appellant; Joseph B. Bergman and Samuel J. Sherman, of counsel; Edward A. Sinden, for appellees.
   Opinion by

Justice Scanlan.

“Not to be published in full. ’ ’


author: Justice Wolfe.

text:
    Raymond Miollis, Appellant, v. Maze Lactic Cultures, Inc. et al., Appellees. Pure Milk Association et al., Appellees.
    Gen. No. 9,405.
    opinion filed August 25, 1939;
    rehearing stricken November 29, 1939.
    Thomas Hart Fisher, for appellant; Willard C. Walters, of counsel; Schuyler & Hennessy, for appellees; William C. Graves, Henry E. Jacobs and Martin Burns, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published, in full.”


author: Presiding Justice Dove.

text:
    Otto G. Kasnick, Appellant, v. Ernest Saunders, et al., Appellees.
    Gen. No. 9,381.
    opinion filed September 19, 1939;
    rehearing denied November 30, 1939.
    Owens & Owens, for appellant; Vincent G. Rinn, of counsel; Earl C. Starbuck, for appellees.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”