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    Norma Hill, Appellee, v. Louis Alexander and Frances Terry, Trading as Felix Cocktail Lounge et al., Appellants.
    Gen. No. 42,713.

      Heard in the third division of this court for the first district at the June term, 1943.
    Opinion filed February 2, 1944.
    Lord, Bissell & Kadyk, of Chicago, for appellants; Leonard F. Martin, Bruce S. Parkhill and Harold E. Baily, all of Chicago, of counsel.
    Clarence M. Dunagan, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

A complaint filed in the superior court of Cook county on May 9, 1941 by Norma Hill against Louis Alexander and Frances Terry, doing business as Felix Cocktail Lounge, Eleven Eleven Lawrence Corporation and First National Bank of Chicago, individually and as trustee, charges that on or about January 13, 1941 Louis Alexander and Frances Terry, doing business as Felix Cocktail Lounge, operated a tavern at 1101 Lawrence avenue, Chicago, by and with the consent of Eleven Eleven Lawrence Corporation, owners of the premises; that on that date Louis Alexander and Frances Terry sold or served liquors to one Sol, causing his intoxication in whole or in part; that plaintiff was lawfully upon the premises and was at all times exercising ordinary care for her own safety; that Sol, while intoxicated and as a direct result of the intoxication, walked or staggered through the doors leading to the outside of the cocktail lounge, and as a direct result of the intoxication staggered and fell against the doors of the lounge and did then and there kick loose a door stop which was holding the door open and caused the door to swing shut in and upon the hand of the plaintiff; that as a proximate result plaintiff was greatly hurt, bruised and wounded, and divers bones of her hand and arm were broken, crushed and maimed, and she sustained permanent injuries to various parts of her right hand and right arm, and amputation of the small finger of the right hand, to the damage of plaintiff in the sum of $5,000. The bank, individually and as trustee, was dismissed from the case. The complaint was amended on its face by alleging that the date of the occurrence was January 18, 1941. Defendant answering, admitted ownership of the premises and the sale of alcoholic liquor therein, but denied all other allegations. A trial before the court and a jury resulted in a verdict against defendants for $2,250. Motions for a dirécted verdict, judgment notwithstanding the verdict and for a new trial were denied, and judgment was entered on the verdict, to reverse which this appeal is prosecuted.

Lawrence avenue runs in an easterly and westerly direction. The tavern is located on the south side of Lawrence avenue, facing north. The main entrance to. the tavern is on Lawrence avenue. Along the east wall is a row of booths and along the west wall is a 20 foot bar running north and south. The bar does not run all the way up to the north wall. There is a door from the street leading to a small vestibule, and an inside door from the vestibule to the tavern. Both doors opened out. The hinges of the inside door were on the west jamb and when the door was opened it swung in a northwesterly direction. The distance in the vestibule between the outside and inside doors is about five feet, and the distance between the vestibule door and the first booth is about ten feet. The only testimony introduced by plaintiff was that of herself. She testified that she arrived at the tavern about 2:00 p. m. on Saturday, January 18, 1941, where she met her father. They sat in the second booth from the north end. When she first sat down she observed other patrons at the bar. She testified that as she sat eating lunch she observed a man whom she identified as Sol; that he was eating and drinking; that the bartender poured several drinks of whiskey for him; that Sol got up and walked towards the back and that he “kind of staggered”; that he came back to the bar in a few minutes, sat down and began drinking again; that Sol was rather loud in manner of speech; that after he came back to the bar he had three or four more drinks of whiskey; that she was in the booth with her father for about a half an hour; that then she arose and walked to the music box for the purpose of putting a coin in the slot and playing a record; that the music box was located against the north wall, just west of the vestibule door and on the same side of the tavern as the bar; that it was “.right up against the door I came in. ’ ’ The machine faced south or toward the back of the tavern, and was of the type in which a person first places a coin and then makes a selection. She testified further that as she stood there her left hand was going over the selections on the music box; that she had her fingers over the numbers; that her right hand was on the jamb of the door, with her fingers in the crack between the open door and the jamb; that she stood there with her head bent forward and facing north; that when she entered the tavern the inner door was open; that as she stood in this position Sol came staggering down and started out the door and bumped the door, and as he started to close it he fell back against it, and the first thing she knew her finger was caught in the door; that ‘ ‘ This man I know as Sol is not tall nor is he light but he is not fat.” She testified further that after the accident her father came over to see what was wrong; that one of the customers of the tavern accompanied her to the office of Dr. H. C. Warren, located in the same block as the cocktail lounge; that her father did not accompany her to the office of the doctor, and that her father later appeared at the doctor’s office. She was in Dr. Warren’s office for about 20 minutes. He treated her finger and bandaged it. She saw him on Monday, when he changed the dressing. At his direction she went to the American hospital Thursday and remained there until the following Monday afternoon. The day after arriving at the hospital her finger was operated on by Dr. Warren and an anesthetic was administered for the operation. She suffered severe pain, which continued for almost two weeks. At the end of that period she went back to work, but only worked two days. Then she was off work for a month. The bandage remained on her finger until May 1941. Dr. Warren died about six weeks before the trial. She went to his office about three times a week until May. She further testified: “My finger had to be operated on again. It is very sensitive and. it has a nail on it that has to be removed. I went to Dr. Warren just three weeks before he died and he told me to come back and he would remove the nail, but before I got a chance to go back he died.” She testified further that at the time of the trial her father was employed in the shipyards at Orange, Texas, where he had been since April 1942. She stated that when she went to the music box Sol was sitting at the back end of the bar; that after she got to the music box he started to go out; that he was staggering at that time; that he got off his chair and staggered to the front door; that the door was open; that after he went through the door in the vestibule he fell and staggered against the door. Asked: “And his shoulder bumped the door, is that it?”, she answered: “Yes.” Asked: “Then what did he do?”, she answered: “Then the door started to close and he lost his balance and just kind of fell back against the door and then he straightened up and walked out.” She testified that when Sol fell back against the door he pushed it the rest of the way shut; that Sol then walked out; that she had not seen Sol from the day of the accident up to the time of the trial; that she knew the newsboy; that at the time of the occurrence the newsboy was sitting by a table near the east wall.

Fred Solomon testified on behalf of defendant that he is generally called Sol; that he had been employed for six years in collecting from and repairing music machines, and that at the time of the occurrence he was employed by the man who owned the music machine located in the Felix Cocktail Lounge, where he had occasion to go four or five times a week; that on the day of the occurrence he had occasion to be in the restaurant, which is next door west from and connected with the tavern, around 3:00 p. m.; that he was in the tavern part approximately three minutes talking to Mr. Terry, father of the defendant Frances Terry. Mr. Terry was the only one behind the bar at the time. Witness further testified that he had something to eat in the restaurant part, which is separate from the tavern; that he drank coffee but had no alcoholic liquor; that he was in the restaurant talking to Miss Frances Terry when the waitress came in and told Miss Terry about the accident; that prior to this time he had neither gone in or out of the front door of the tavern, having entered the premises through the restaurant door; that at the request of Miss Terry he took plaintiff to Dr. Warren’s office, returning to the tavern. He testified further that he was sober; that he never drinks whiskey and that he did not observe anyone in the tavern talking in a loud voice or who appeared intoxicated. Mr. James Terry, father of Miss Terry, testified on behalf of defendants that at the time of the accident he was the only one tending bar; that the only patrons in the tavern just before the accident were the plaintiff and her father, Mr. Pike; that Mr. Solomon was in the restaurant side at the time of the occurrence; that plaintiff was at the victrola and had her hand against the door which closed; that her father went out the front door on his way home; that the door evidently caught plaintiff’s finger nail; that after the accident Mr. Solomon came in from the restaurant and that Frances Terry came in later. He testified further that up to the time of the accident he had not served any liquor to Mr. Solomon that day; that there was no intoxicated person sitting at the bar before the accident or anyone talking in a loud voice; and that Bay, the newsboy, was standing right in the center near the front door, but he did not touch it. Defendant Frances Terry testified that at the time of the occurrence she was in the restaurant part talking to Fred Solomon when she first heard of the accident; that she asked Mr. Solomon to take plaintiff to the doctor’s office and that he did; that when she went into the tavern after the accident she did not see Mr. Pike; and that she did not hear anyone in the tavern ordering drinks in a loud voice. Mr. Raymond Brusld testified on behalf of defendants that he is a news dealer and operates a newsstand in front of the cocktail lounge; that at the time of the accident he was standing in the vestibule warming up; that he was acquainted with plaintiff; that the door between the vestibule and the tavern was propped open part of the morning; that he did not notice it immediately before the accident; that the accident happened in the early afternoon; that the upper part of the door is made of glass; that “you could see through the doors half way”; that “standing in the vestibule you could partly see the tavern through the window in that door”; that his attention was called to the accident by the girl’s gasp of pain; that he was gazing at the bartender before the cash register; that Mr. Solomon had just gone into the kitchen; that he knew plaintiff’s father, whose name was Pike; that he saw her father immediately before the accident; that the father was crippled; that he saw him come in and saw him go out; that the witness was in the vestibule at the time the father went out; that the father turned east and walked away; that at the time witness heard the girl gasp she was in front of the juke box, on one side; that she had one hand on the juke box and one hand on the door; that she was holding the inside jamb of the door about three feet above the floor; that at that time Mr. Terry was behind the bar; that as far as witness knew he, witness, was the only one within arm’s reach of the door, or who could have touched it, at or just before the time of the accident; that Mr. Pike had just gone out and the door took some time to slam; that by that time Pike was “25, 50 feet away”; that Pike opened the door; that witness may have pushed against the door; that no one else touched the door; that witness did not touch the door at the time of the accident or before the accident. Asked: “When that door started to slam, what made it slam?”, he answered: “The inertia of the spring.” Asked: “Well, who had opened it ? he answered: ‘ ‘ Mr. Pike. ’ ’ Witness testified further that he was on speaking terms with a man having the nickname of Sol, who was at the tavern at that time; that he learned after the accident that the full name of Sol was Fred Solomon; that Sol was in the kitchen at the time the accident happened; that the kitchen was located at the southwest part of the tavern, behind the restaurant, connected by a passage door; that witness had seen Solomon 15 or 20 minutes before the accident, going in the direction of the kitchen; that at that time he appeared to be sober; that witness saw Solomon when he escorted plaintiff to the doctor; that at that time Solomon was calm and collected and appeared to be sober. Witness testified further that he could not testify as to the sobriety of Mr. Pike; that plaintiff was sober.

Plaintiff, in rebuttal, testified that the Fred Solomon who testified for the defendant was not the “Sol” about whom she testified in her case in chief. Asked as to whether Mr. Solomon was the man who took her to the doctor, she answered that she did not know.

The first point urged by defendants is that an action under the Illinois Dram Shop Act for damages for personal injuries cannot be maintained where the damages are not the result of the violation by the intoxicated person of any legal duty to the person injured, and that there is no proof that the damage sustained by plaintiff was the result of £ wrongful or tortious act of Sol, the alleged intoxicated person, and that hence as a matter of law plaintiff cannot recover. Plaintiff replies that whether Sol’s intoxication was the proximate cause of her injuries, whether she was in the exercise of due care for her own safety, and whether the intoxicated man was negligent, were all questions of fact properly left to the jury to determine, and that the verdict returned is supported by the evidence. Plaintiff calls attention to the fact that the court gave, at the instance of defendant, an instrnetion requiring the plaintiff to prove by a preponderance of the evidence, among other things, that immediately and before the time of the accident she. was in the exercise of ordinary care for her own safety, and another instruction that if the jury found from the evidence that at or immediately before the accident she was not in the exercise of ordinary care, that she was negligent, and that such negligence contributed to cause the accident, then the jury should find the defendants not guilty. Plaintiff does not complain of these instructions. This case arises under the provisions of section 14 of the Dram Shop Act (sec. 135, ch. 43, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 68.042]), which reads:

“Every husband ... or other person who shall be injured in person . . . by an intoxicated person, or in consequence of the intoxication ... of any person, shall have a right of action . . . against any person or persons who shall by selling or giving alcoholic liquor have caused the intoxication . . . of such person . . . .”

Defendants, speaking of the right of action given to those persons “injured” by an intoxicated person, urge that the word be given its well accepted meaning at common law. They maintain that the word “injured” in the text means a wrongful act resulting in damages, the invasion of a legal right of the plaintiff, the violation of a legal duty of the defendant. Defendants insist that there is no evidence of negligence on the part of Sol and that the proof shows that plaintiff was guilty of contributory negligence as a matter of law. From the statement of the respective positions it will be observed that plaintiff concedes that the burden was on her to prove by a preponderance of the evidence that Sol’s intoxication was the proximate cause of her injuries; that Sol was negligent and that she was in the exercise of due care for her own safety. Both parties state that the case is based on the Dram Shop Act, yet they state their respective positions as though the case were tried as a common-law action involving proof of negligence, proximate cause and due care. It is difficult to know from the complaint in the instant case- whether the plaintiff is relying on the Dram Shop Act or on the common,law. In King v. Haley, 86 Ill. 106, speaking of this section of the Dram Shop Act, the court said (108):

“A cause of action is given to any one who may be injured in his person or property, or means of support, by any intoxicated person, jointly or severally against such person or persons who may have caused the intoxication, in whole or in part, of the person who commits the injury. An action is also given to any one who may in the same manner be injured ‘in consequence’ of the, intoxication of any one, whether habitual or otherwise, against the parties who may cause such intoxication. In the one case it is for the direct injury inflicted by ‘an intoxicated person,’ and in the other it is for such damages as may arise ‘in consequence’ of such intoxication. This is the plain meaning of this section of the statute as expressed in unambiguous language. The General Assembly have seen fit to enact that any one who may be injured by any ‘intoxicated person,’ either in his person or property, or means of support, may have a cause of action against the parties who may have caused the intoxication of the person who commits the injury, and we have no rightful authority by judicial construction to deprive such party of the right secured, which to him in many instances may be of the utmost value. What reason is there why there should not be an action for the direct damage done by a drunken person, as well as damages that arise in consequence of such intoxication? The injury to the ‘person’ is most likely to be the direct act of the ‘intoxicated person,’ and the injury to the ‘means of support’ would generally arise in ‘consequence of the intoxication’ incapacitating the party for attending to business, or causing him to waste his estate.”

A party complaining of the wrongful act of a tavern keeper in causing the intoxication of another, from which damage results to him, must not be an active and willing agent with the tavern keeper, assisting in causing such intoxication. However, this does not state a rule of contributory negligence. It is founded on the principle that no person can profit by his own wrongdoing, or recover for an injury from a force put in motion by his own wrongful illegal act. In Jury v. Ogden, 56 Ill. App. 100, plaintiff 25 years of age and unmarried brought action under the Dram Shop Act for alleged injury to her means of support caused by the intoxication of her father, produced by liquor sold to him by the defendant. She obtained a judgment for $1,200. She was not a pauper, nor was there any contract between them binding her father to support her. The proof was ample that when sober he was what a father should be, and there was no reason to doubt that but for his intoxication she would have remained with and been supported by him so long as she lived. The court said (105):

“It is obvious that the injury in person or property mentioned in this act is an injury to or in violation of a legal right, in actual enjoyment before and at the time of the injury thereto; and the means of support are put in the same category. The question is whether they also must be of legal right, that is, given by law, and in like actual enjoyment, to support an action for injury in respect thereof under this act, or will it suffice that they are in actual enjoyment without any claim of right thereto which might be enforced by law.”

This case is support for defendants’ contention. In Whiteside v. O’Connors, 162 Ill. App. 108, the court said (116):

“We conclude that if the husband of plaintiff in error committed suicide while in the state of intoxication and the defendants in error contributed in whole or in part to produce such intoxication the rule announced in Jack v. Globe, supra, is applicable, and that it was only incumbent upon plaintiff in error to show that the intoxication of her husband was the cause of his suicide, either proximate or remote. See also England v. Cox, 89 Ill. App. 551. If, however, a recovery is sought by plaintiff in error for injury to her means of support in consequence of the intoxication, habitual or otherwise, of her husband whereby he neglected his business and became impoverished, or whereby he' became deranged or despondent and committed suicide, it is incumbent upon plaintiff in error to show that the intoxication habitual or otherwise of her husband, which intoxication was caused in whole or in part by defendants in error, was the proximate cause of injury to her means of support in the manner indicated.”

The common law gives no remedy for injury or death following the mere sale of liquor to the ordinary man, either on the theory that it is a direct wrong, or on the ground that it is negligence which imposes a legal liability on the seller for damages resulting from the intoxication. The reasoning of these cases is that the drinking, not the selling, is the proximate cause of the injury. In Bistline v. Ney Bros., 134 Iowa 172, the Supreme Court of Iowa made an exhaustive study of the subject we are considering. The court said (page 177):

“It is to be remembered that this statute creates a new right of action, and, to sustain such action, the person injured is not required to establish all the elements of an injury actionable at common law. It is enough if the facts alleged and proven include all the elements which the statute upon reasonable and fair construction may be said to prescribe. . . . The very purpose of the statute is to extend such liability to include injuries which, under the common law, would be held too remote.”

In Volans v. Owen, 74 N. Y. 526, plaintiff’s minor son, a young man about 20 years of age, living with his father, went to Ogdensburg and procured at various hotels and saloons intoxicating liquors, and becoming intoxicated, fell and injured his head. In consequence he became sick and for several months was confined to his bed in his father’s house. Plaintiff sued for damages on the ground that he was subjected to medical and other expenses of his son’s illness and was deprived during the time of the services which the son had been accustomed to render upon his farm. The New York court of appeals said (529):

‘ ‘ One of the grounds urged in support of this exception is that the injury, for which an action lies under this statute, must be one for which, by the pre-existing law, a remedy by action existed. It is claimed that the act does not create a cause of action for an injury not before remediable by action, and that the only change wrought by the act was to extend the pre-existing remedy, so as to make the vendor of liquors and the landlord, under the circumstances specified in the act, liable for injuries committed by an intoxicated person, instead of confining the remedy to the immediate wrong-doer, according to the general rule of the common law. This construction of the statute is inadmissible. Both direct and consequential injuries are plainly included in the remedy given, and the Legislature, by giving a right of action for injury to ‘means of support’ — a cause of action unknown to the common law — evidently intended to create a new ground and right of action.”

It will be observed that the New York court called the intoxicated person “the immediate wrongdoer.” We agree with the statement in the case of Sauter v. Anderson, 112 Ill. App. 580, that in the Dram Shop Act the legislature did not intend to make the seller of liquor responsible for all the acts of the buyer while intoxicated thereby, when the acts were not in any way caused by the intoxication. The liability is for injuries to others done by the intoxicated person, or resulting from his intoxication, and not for anything else. If, for instance, an intoxicated person is killed by lightning, or a shot by a highway man, or a burglar, or meets with other misfortune having no reasonable or logical relation to his drunkenness, no one would think of asserting a cause of action in favor of his dependents against the seller. If it appears that notwithstanding the drunkenness the injurious act is wholly chargeable to some other cause or influence, or that the injury was not caused by the wrongful act of the intoxicated person, then judgment should be entered for the defendants. In the Bistline case, the Iowa court further said (182):

“While cases may be found in which the ordinary rule of proximate cause is spoken of as applicable to claims for recovery of damages for injury done by an intoxicated person, there is scarcely one in which a recovery has been sustained that such rule is not ignored or treated as superseded by the statute. For instance, where the owner of a building let his property for saloon purposes, and the tenant sold liquor to a third person who became intoxicated thereon, and in such a condition abused and caused the death of a horse owned by a fourth person, the latter was permitted to recover damages from the landlord. Bertholf v. O'Reilly, 74 N. Y. 509, (30 Am. Rep. 323). See, also, Dunlap v. Wagner, 85 Ind. 529 (44 Am. Rep. 42). Again, where the intoxicated person undertook to drive home and fell in such manner as to be beaten to death by the wheel of his own wagon, the wife was held entitled to recover. Mead v. Stratton, 87 N. Y. 493 (41 Am. Rep. 386). The seller has been held liable for damages suffered by reason of an assault committed by the intoxicated person. English v. Beard, 51 Ind. 489; Mastad v. Swedish Brethren, 83 Minn. 40 (85 N. W. 913, 53 L. R. A. 803, 85 Am. St. Rep. 446); Pickard v. Tearo, 34 Ill. App. 398; Doty v. Postal, 87 Mich. 143 (49 N. W. 534); McClay v. Worrall, 18 Neb. 44 (24 N. W. 429). Injury to the wife’s means of support by the suicide of the husband while intoxicated affords a right of action. Lawson v. Eggleston, 52 N. Y. Supp. 181 (28 App. Div. 52, affirmed in 164 N. Y. 600, 59 N. E. 1124); Blatz v. Rohrbach, 42 Hun (N. Y.) 402. This case was reversed upon appeal, but not upon the point here referred to. In Indiana, it is held that a wife may recover damages for injury to her means of support occasioned by the imprisonment of her husband for a crime committed while intoxicated upon liquors sold him by the defendant. Homire v. Halfman, 156 Ind. 470 (60 N. E. 154). She may recover for an assault upon herself by her husband while intoxicated. Wilson v. Booth, 57 Mich. 249 (23 N. W. 799); Schlosser v. State, 55 Ind. 82. So also where the injury is occasioned by the reckless driving of a horse by an intoxicated person. Aldrich v. Sager, 9 Hun. (N. Y.) 538; Hackett v. Smelsey, 77 Ill. 108; Mulcahey v. Givens, 17 N. E. 598 (115 Ind. 286). For other illustrative cases, see Boos v. Sliney, 11 Ind. App. 257 (39 N. E. 197); Stafford v. Levinger, 16 S. D. 118 (91 N. W. 462, 102 Am. St. Rep. 686); King v. Haley, 86 Ill. 106 (29 Am. Rep. 14); Peterson v. Knoble, 35 Wis. 80; People v. Brumback, 24 Ill. App. 501; Smith v. People, 141 Ill. 447 (31 N. E. 425); Curran v. Percival, 21 Neb. 434 (32 N. W. 213); McCarty v. Wells, 51 Hun (N. Y.) 171 (4 N. Y. Supp. 672); Bacon v. Jacobs, 63 Hun. 51 (17 N. Y. Supp. 323); Bodge v. Hughes, 53 N. H. 614; Fortier v. Moore, 67 N. H. 460 (36 Atl. 369); Weick v. Lander, 75 Ill. 93. Not all of these authorities state the rule as broadly as do the eases from Michigan and New York; but the logical tendency of all is in the same direction. As already noted, there are among them opinions which profess to apply the rule of proximate cause; but in each instance the term ‘proximate’ is used in the sense of an originating cause, from which the injurious effect is logically traced through an intervening series of acts or events. This rule is, of course properly applicable where the right of .recovery is based upon the second clause of the civil damage statute which makes the liquor dealer liable for injury sustained ‘in consequence’ of the intoxication of any person. But where recovery is sought under the first clause for injury done ‘by an intoxicated person,’ the adjudicated cases are practically unanimous that when the plaintiff has proved the unlawful sale to a person on whom she is dependent for support, and the intoxication of such person thereby produced and an injury done by him while in that condition to her means of support, she has made the case for which the statute provides. In other words, the statute indulges in the reasonable presumption that an act done to the injury of his family by a person whose faculties are abnormally excited, or confused by drink, especially where the act is of a character not ordinarily to be expected from a sane and sober person, is the result of his intoxication. If when these have been shown the defendant claims that notwithstanding the drunkenness so wrongfully occasioned, the injurious act is wholly chargeable to some other cause or influence, it is open to him to establish that fact in defense. It is certainly not required of the plaintiff, that, after proving the wrongful sale of the liquor by defendants to her husband, his resultant intoxication, and his suicide while in that condition (and upon each of these points there was evidence on which the jury could properly find in her favor), she must then proceed to prove by a preponderance of the evidence that the deceased would not have committed suicide had the defendants not sold him the liquor. We find no precedent or authority imposing that burden upon her, and we can conceive of no good reason for establishing such a rule.”

The Illinois courts hold that “the party causing such intoxication in whole or in part cannot escape liability because he may not have reasonably foreseen the com sequence.” Roth v. Eppy, 80 Ill. 283.

Section 14 of the Illinois Dram Shop Act (sec. 135, ch. 43, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 68.042]) provides for two separate and distinct causes of action, one for the direct injury inflicted by “an intoxicated person,” and the other for such damages as might arise “in consequence of such intoxication.” When the action is for the injury resulting from the direct affirmative act of an intoxicated person the doctrine of proximate cause has no application and a liability accrues upon proof of that fact, but where the action is for an injury resulting “in consequence of intoxication, habitual or otherwise,” it is incumbent upon the plaintiff to show that such intoxication was the proximate cause of the injury. In the case of Whiteside v. O’Connors, 162 Ill. App. 108, it was held that if the husband of plaintiff committed suicide while in the state of intoxication and the defendant contributed in whole or in part to produce such intoxication, it was only incumbent upon plaintiff to show that the intoxication of her husband was the cause of his suicide, either proximate or remote. The court said (116):

“If, however, a recovery is sought by plaintiff in error for injury to her means of support in consequence of the intoxication, habitual or otherwise, of her husband whereby he neglected his business and became impoverished, or whereby he became deranged or despondent and committed suicide, it is incumbent upon plaintiff in error to show that the intoxication habitual or otherwise of her husband, which intoxication was caused in whole or in part by defendants in error, was the proximate cause of injury to her means of support in the manner indicated. ’ ’

In the Volans case the New York court pointed out that by giving a right of action for injury to “means of support,” a cause of action unknown to the common law, the legislature intended to create a new ground and right of action. That court said (529):

“The words, ‘means of support’ in connection with the' designation of the persons, in whose favor the remedy is given, viz; husband, wife, child, parent, etc., denote that it was not alone a common law injury, or an injury before remedial by action, to which the statute was intended to apply.”

A consideration of the cases under the Dram Shop Act shows that they fall into two general classifications, one where the injury to the person, property or means of support is by an intoxicated person, and the other where the injury to the person, property or means of support is in consequence of the intoxication, habitual or otherwise. In either classification an action is given to the injured person or persons against any person or persons who shall by selling or giving alcoholic liquor, have caused the intoxication in whole or in part of such person, and against any person knowingly renting, leasing or permitting the occupation of the premises and having knowledge that alcoholic liquors are to be sold therein, or who, having leased the same for other purposes, shall knowingly permit the sale of any alcoholic liquors that have caused in whole or in part the intoxication of any person. The cases are further divided into those where the intoxicated person commits suicide, is killed or incapacitated by the consumption of the intoxicating liquor, and where the plaintiff sues to recover because of loss of means of support, etc. In that class of cases the persons injured in means of support are given a right of action. That is the conclusion of the New York court of appeals in the Volans case referred to, when it said that the legislature in using the words “means of support,” denoted that “it was not alone a common law injury, or an injury before remedial by action to which the statute was intended to apply.” There is another class of cases that has arisen under section 14 of the Dram Shop Act, and that is the one into which the instant case falls. That classification includes cases where the intoxicated person assaults third persons or where the intoxicated person causes injury to the property or person of third persons, where redress, if the assailant or wrongdoer were sober, would be sought against him by an ordinary action at common law.. In that class of cases there was a remedy at common law against the assailant or tortfeasor but not against the tavern keeper or landlord. We have carefully examined the reported cases and find that where the action was by a third person for the assault or other wrong committed against the person or property of plaintiff and action brought under the Dram Shop Act that in each case the evidence showed that the plaintiff could recover at common law against the assailant or tortfeasor. In Bertholf v. O’Reilly, 74 N. Y. 509, the evidence showed that the horse died as a result of over-driving by plaintiff’s son and that his treatment of the horse was caused by his intoxication., In Wilson v. Booth, 57 Mich. 249, the wife was allowed to recover for an assault upon herself by her husband while he was intoxicated. In Aldrich v. Sager, 9 Hun. (N. Y.) 537, plaintiff was injured by the reckless driving of a horse by an intoxicated person. In Sauter v. Anderson, 112 Ill. App. 580, there was evidence that Anderson, who was sober, made an unprovoked and murderous assault upon Wilder and that he killed Anderson in necessary self defense. The widow sued under the Dram Shop Act, contending that Wilder was drunk. The court said (584) :

“Upon that theory, even if Anderson, who was sober, made an unprovoked and murderous assault upon Wilder, and though Wilder then killed Anderson in necessary self-defense, yet if Wilder .was then intoxicated, those who sold Wilder the liquor which made him intoxicated and the owners of the building in which the liquor was sold to Wilder, would be liable in damages to Anderson’s family for Anderson’s death, and of course would be liable to Anderson himself if he was not killed but was disabled. We cannot hold the legislature so intended. A statute which would make the seller of liquor responsible for all the acts of the buyer while intoxicated thereby, when the acts were not in any way caused by the intoxication, would in our judgment be so unreasonable as to be invalid. Liquor dealers may very properly be held responsible for the natural results of their traffic, but not for conduct which is in no way caused by it. ’ ’

We are of the opinion that in cases that fall within the classification of the case at bar that section 14 of the Dram Shop Act provides a remedy to one injured in his person or property by an intoxicated person against the tavern keeper and his landlord in order to compensate for the tortious acts of the intoxicated person. The act does not create a right of action for all acts of intoxicated persons, but only for the tortious acts of intoxicated persons. In this class of cases the act gives a right of action against the dram shop keeper and his landlord in addition to the one given by the common law, against the tortfeasor. We have been unable to find a case where such a statement is made, but we believe that this is the law that has been applied in all the reported cases. In the Ranter case the court recognized that there could be no recovery against the tavern keeper and landlord where the intoxicated person killed his assailant in necessary self defense. In the O’Reilly case the intoxicated person caused the death of a horse by over-driving it while he was intoxicated. In the Wilson case the wife was assaulted by her husband while he was intoxicated. In the Aldrich case plaintiff was injured by the reckless driving of a horse by an intoxicated person. We conclude that in the instant case it was necessary for plaintiff to prove by a preponderance of the evidence that the tavern keeper sold intoxicating liquor to Sol; that his intoxication was caused in whole or in part by the sale of the liquor; that Sol was guilty of negligence which was the proximate cause of the plaintiff’s injuries; that plaintiff was in the exercise of due care for her own safety, and the damages. There was evidence that the tavern keeper sold intoxicating liquor to Sol, that as a result he became intoxicated and that plaintiff was injured when the door closed pinching one of her fingers. We turn to a consideration of whether there is any evidence that the injuries sustained by plaintiff were caused by the wrongful or tortious act of Sol, the alleged intoxicated person. The rule is that negligence and contributory negligence are questions of fact for the jury. They become questions of law only when the evidence is so clearly insufficient to establish negligence or due care that all reasonable minds would reach the conclusion that there was no negligence, or that there was contributory negligence. A motion to direct a verdict for the defendants or for a judgment notwithstanding the verdict preserves for review only a question of law, whether from the evidence in favor of plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for plaintiff. The only evidence in the record that the injury to plaintiff was caused by an intoxicated person is plaintiff’s own testimony. She testified that Sol came staggering toward the door from the rear of the bar; that as he started toward the door he bumped it with his shoulder, and as it started to close, he fell against it and the first thing she knew her finger was caught in the door. She did not testify as to any facts from which the jury could infer that Sol knew or should have known that her finger was on the door jamb and was in a position of danger. Plaintiff was not conscious that her own finger was in the crack between the door and the jamb, for she testified: “I didn’t notice my finger, but it must have been.” In the absence of evidence that Sol knew or should have known that plaintiff’s finger was in a position of danger, she has failed to establish that Sol owed any legal duty to her for breach of which she would be entitled to an action against defendants for damages caused by an intoxicated person under the Dram Shop Act. We are of the opinion that as there was no evidence of negligent conduct on the part of Sol, it was the duty of the court to direct a verdict at the close of all the evidence. We find further that as a matter of law, plaintiff was guilty of contributory negligence which was the proximate cause of the injury. She testified that she observed Sol leaving the rear end of the bar and staggered up to the door, falling against it, causing- it to start to close, then straightening up and again falling back against the door from the side, pushing it all the way shut. She not only placed her finger in a dangerous place, but she permitted her finger to remain in a dangerous place when she knew Sol was approaching the door. We are of the opinion that all reasonable minds would draw but one conclusion, namely, that plaintiff was guilty of negligence which proximately contributed to the injury, and that the trial court should have directed a verdict for the defendants.

Defendants maintain that in the alternative the trial court should have allowed defendants’ motion for a new trial because the verdict is against the manifest weight of the evidence. The only testimony that there was an intoxicated person named Sol who slammed the vestibule door on plaintiff’s finger is the uncorroborated testimony of plaintiff. She described Sol: “This man I know as. Sol is not tall, nor is he light but he is not fat.” She stated that she did not recognize Fred Solomon, the witness who testified for the defendants. He testified that he was known as “Sol.” She said she saw Fred Solomon the day of the trial, but “never saw him before that I know of.” Fred Solomon took her to the doctor’s office, and according to all the testimony except that of plaintiff, he was the only person in the tavern at the time by the name of Sol. She testified that while she was eating she observed Sol drinking and that she saw “each drink that was served to him,” and that “in each case I saw him actually pick up the glass and drink the drink.” The music box was to the west of the vestibule at the front end of the tavern, on the same side of the tavern as the bar and facing south, and when she was looking at the selections she was facing to the front of the tavern, or north. In order for her to read the selections she had to bend her head and lean forward. At the time she was selecting a record and while in a position which required her to follow the list of selections with her left hand, and facing north, according to her testimony 1 ‘ Sol came staggering* down and started out the door, which he bumped, and as he started to close it he fell back against it, and the first thing I knew my finger was caught in the door.” On cross-examination she testified that after she got up to the music box she observed Sol got off his stool and staggered up to the front door. It is obvious that plaintiff could not have seen what Sol was doing while she was facing in the opposite direction. Having observed Sol for an appreciable time while she was eating lunch, it is remarkable that she was not able to give a better description of him. In fact, she gives no description. She merely states what he was not. Raymond Bruski, the newsman, testified that he was standing in the vestibule warming up at the time of the accident; that he heard plaintiff gasp; that at that time he was the only one within arm’s reach of the door; that Pike, plaintiff’s father, had just gone out; that it took some time for the door to slam, and that at the time of the accident no one else touched the .door beside Pike. Pike did not go to the doctor’s office with his daughter. He arrived there in about 20 minutes and accompanied her home. Fred Solomon.testified he did not hear .any one in the tavern identified as being plaintiff’s father. J ames Terry testified that Pike was not in the tavern at the time first aid was being given plaintiff. Miss Frances Terry testified that Pike was not in the tavern when she arrived on the scene of the accident. Plaintiff states that her father was crippled, which was the reason he did not accompany her to the doctor’s-office. At the time of the trial he was working in a shipyard in Texas. He did not testify as a witness, nor was his deposition taken.. Defendants state that the testimony of Raymond Bruski that Pike slammed the door, which injured his daughter, is the only explanation of the accident worthy of belief. There is no evidence in the record that Pike was intoxicated. We are convinced that the verdict is against the manifest weight of the evidence. It is unnecessary to consider the final point urged by defendants, that the verdict is excessive.

Because of these views the judgment of the superior court of Cook county is reversed and the cause remanded with directions to enter a judgment notwithstanding the verdict for the defendants and against plaintiff.

Judgment reversed and cause remanded with directions.

Kiley, J., concurs.

Hebel, P. J., took no part.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Arthur F. Carr, Appellant, v. Lee J. Behl Hotel Corporation, Appellee.
    Gen. No. 42,729.
    Heard in the third division of this, court for the first district at the June term, 1943.
    Opinion filed February 2, 1944.
    Edward J. Piggott and Clarence S. Piggott, both of Chicago, for appellant; Clyde L. Todd, of Chicago, of counsel.
    Albert M. Howard and Walter A. Christopher, both of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Arthur F. Carr filed a complaint in the circuit court of Cook county, alleging that on January 8, 1940 and prior thereto the Lee J. Behl Hotel Corporation was in possession of and operated as a hotel the premises known as Hotel Leland, located at the southwest corner of Racine and Leland avenues, Chicago; that the west wall of the hotel was bounded by a public alley running north and south between Leland and Wilson avenues; that about 62 feet south of the northernmost point of the west wall there was a door which opened in, the base or threshold of which was a few inches from the alley pavement; that immediately inside the hotel building there was a flight of concrete steps which lead down into a basement; that the presence of the basement steps and door opening inward in such close proximity to the public alley constituted a condition which was dangerous to lawful use of the alley and therefore a duty rested on defendant to securely shut the door; that defendant knowing the condition of the door and cellar and the close proximity to the public alley, did negligently and carelessly fail to securely close the door by lock or otherwise so as to protect the public lawfully using the alley from the hidden dangers resulting therefrom, and did then and there permit the door to be and remain unlocked or unfastened or ajar, thereby subjecting the lawful users of the alley to the dangers of accidently falling therein; that plaintiff as a result of the aforesaid negligence, while in the exercise of due care and caution for his own safety, accidently fell through the doorway and thereby sustained serious injuries to his person, and he asked damages of $20,000. Defendant answering, admitted that it was in possession of the premises and operated the Hotel Leland; denied that the door or the premises constituted an unsafe condition, or that it negligently or carelessly failed to close or securely lock the door, or that any duty rested upon it so to- do; denied that the door or the premises presented any hidden danger, or that it negligently permitted the door to be left open, unlocked or improperly fastened, or that it subjected plaintiff to great danger; and denied that the injuries suffered by plaintiff were proximately caused by a failure to perform any duty. Another defendant, the Leland-Racine Building Corporation, the owner of the fee and lessor of the premises, was dismissed from the case. The case went to trial before the court and a jury. At the close of plaintiff’s evidence, the court allowed defendant’s motion for a directed verdict and judgment was entered against plaintiff, who appeals. Plaintiff’s theory of the case is that defendant owed a duty to the public, including plaintiff, to exercise ordinary care in maintaining the door in question in a reasonably safe condition so as to avoid injury to the public, including plaintiff, while in the lawful use of the public alley and in the exercise of due care and caution for his own safety; that defendant’s failure to discharge this duty constituted negligence and was the proximate cause of plaintiff’s injuries. Defendant’s theory is that plaintiff has failed to show any negligence on the part of defendant; that defendant has not breached any duty it owed to plaintiff; that even if defendant did owe' a duty to plaintiff which it breached, this was not the proximate cause of the accident; that the proximate cause of the accident was the slipping of plaintiff on the icy pavement; that the only duty defendant owed plaintiff was to refrain from knowingly injuring him, and that the court, as a matter of law correctly determined the proximate cause of the accident.

Plaintiff was a lather. About 5:00 p. m. on Monday, January 8, 1940 he parked his automobile north of Wilson avenue on Clifton avenue. He made arrangements to meet his wife there later and then walked north on Clifton avenue to Leland avenue, where he entered a department store. Leland avenue runs in an easterly and westerly direction and is a block north of Wilson avenue, the latter also running in an easterly and westerly direction. Eacine avenue runs in a northerly and southerly direction. He wished to contact William Kerwin, a contractor, concerning a lathing job. On being informed that Kerwin had just left the store, plaintiff walked out and thinking he saw Kerwin going west on Leland avenue, he set out to overtake him. When plaintiff reached a point where the public alley in the rear of the Hotel Leland intersects the south sidewalk of Leland -avenue, he realized that the person he was following was not Kerwin. Thereupon' plaintiff turned south into the alley, intending to walk to Wilson avenue and then east to Clifton avenue, where his car was parked. He walked south into the alley about 40 or 50 feet when an automobile turned into the alley from Leland avenue. This automobile had its bright lights on and plaintiff stepped closer to the west wall of the hotel. The automobile did not continue to the point where plaintiff was walking, but backed out into Leland avenue. Plaintiff continued to walk south along the east side of the alley about two feet from the hotel building wall. Plaintiff was a man well acquainted with the alley. He had worked as a lather on the hotel when it was under construction and had also worked on the building immediately to the south. He had traveled in the alley many times and it was well known to him. It was getting dark and the building walls rising high, added to the general darkness. There was no light in the alley. The surface of the alley was icy and covered with a light snow. It was not pitch dark. Plaintiff could see that there was snow and ice on the ground. Three inches of snow had fallen the day before, and a light snow also fell on that day. The snow covered the pavement and the ground was white. Plaintiff took three or four steps, when he slipped on an icy spot in the alley, causing him to lose his balance and his body started to fall toward the hotel door. In an effort to protect himself and regain his balance, he raised his left arm. His left arm first struck the brick wall at the north edge of the door and his left hand then came in contact with the door, which opened, and he fell down the concrete steps into the basement of the hotel. He testified that the door did not open until some part of his body came in contact with it. He also testified that when his hand came in contact with the door it “flew open.” After several painful efforts plaintiff was able to drag himself out of the basement and into the alley. Within a few minutes a patrol wagon with two police officers arrived and they placed him in the wagon. Officer Frank Weimer, one of these men, testified that he examined the door in the hotel and found that it would open when pushed against with the hand. Officer Walter Peterson, the other man, testified that he examined the door and lock both from the inside and outside; that he found the lock would not operate so as to keep the door securely fastened shut; that the catch in the lock would not respond to the turning of the door knob and would not engage in the groove on the door frame; that the door when pulled closed would open if leaned against or pressed; and that there were two or three steps going down into the basement. Plaintiff was taken to the County hospital. The fall resulted in a fracture of the femur of plaintiff’s left leg. He was in the hospital from January 18, 1941 to April 17, 1941 and again from May 4, 1941 to July 14, 1941. His leg was operated on and was placed in traction for 40 days during the first period and for 69 days during the second period. Up to the day of the trial he was under the care, observation and treatment of members of the hospital staff. His injuries are severe and permanent.

Plaintiff argues that the court erred in directing a verdict for the defendant; that the evidence made out a prima facie case of negligence; that defendant was under a duty to exercise reasonable care in keeping the premises in a safe condition; that defendant failed to exercise reasonable care in discharging this duty; that whether or not plaintiff would have received the same injuries by falling against the door and then to the pavement of the alley was a question for the jury, and that the evidence showed that defendant’s negligence wait the proximate cause of the injuries. Plaintiff also urges that it cannot be held as a matter of law that the losing of his balance was the proximate cause of Ms injuries, being nothing more than a concurrent or combining cause, and that defendant’s negligence was an additional cause which concurred with the slipping or losing of his balance in bringing about the injuries. Plaintiff also states that under the evidence the presence of the snow and ice in the alley was at most an act of God, and that while the snow and ice may have produced the original slipping and loss of balance, this condition alone could not have produced the injuries, and that the injuries were caused by defendant’s negligence causing the door to be left ajar or not securely fastened shut. Plaintiff’s brief indicates an exhaustive study of the authorities on the subjects discussed. We have read these cases and are of the opinion that they are not applicable to the factual situation presented by the record. We are also of the opinion that plaintiff failed to make out a prima facie case and that the court was right in directing a verdict for the defendant. The defendant was in no way responsible for the icy condition of the alley pavement. The alleged negligent act of keeping the door unlocked or of having a defective lock on the door, was nothing more than a condition. The act of plaintiff inmaMng a misstep, or in slipping on the ice and snow and falling on and against the door, caused his injuries. Illinois Cent. R. Co. v. Oswald, 338 Ill. 270; Briske v. Village of Burnham, 379 Ill. 193. We are satisfied that the alleged negligence of defendant was not the proximate cause of the injuries suffered by plaintiff. What constitutes proximate cause has been defined in numerous decisions. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury wMch resulted from his act. Illinois Cent. R. Co. v. Oswald, 338 Ill. 270; Hartnett v. Boston Store of Chicago, 265 Ill. 331; Neering v. Illinois Cent. R. Co., 383 Ill. 366.

Entertaining these views the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Kiley, J., concurs.

Hebel, P. J., took no part.


text:
    Joseph P. Risch, Appellee, v. Consumers Petroleum Company and William Dieterich, Appellants.
    Gen. No. 42,755.

      Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed February 2, 1944.
    Rehearing denied March 7, 1944.
    Andrew J. Farrell, of Chicago, for certain appellant.
    Wyatt Jacobs and Walter A. Christopher, both of Chicago, for certain other appellant.
    Stacy W. Osgood, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Joseph P. Riseh filed a complaint in the circuit court of Cook county against Consumers Petroleum Company, John W. Greene and William Dieterich to recover damages for injuries suffered on Saturday, December 27, 1941 at Western avenue and Argyle street in Chicago. On motion of plaintiff, John W. Greene was dismissed from the case., A trial before the court and a jury resulted in a verdict for plaintiff in the sum of $3,500. Motions for judgment notwithstanding the verdict and in the alternative for a new trial, were overruled, and judgment was entered on the verdict. Each defendant appealed and filed separate briefs.

Plaintiff was 59 years of age at the time of the occurrence. He had been employed by a cigar manufacturer for 35 years, stripping tobacco, and his earnings were $18 per week. The manufacturer was located at 2343 Farragut avenue, which is about four blocks north of Argyle street. The accident happened about 5:45 p. m. The plaintiff walked to Western avenue and south on the east side of Western avenue. It was raining and rather dark. He arrived at the northeast corner of Western avenue and Argyle street. Western avenue runs in a northerly and southerly direction and is 100 feet wide at this point from building line to building line. Argyle street runs in an easterly and westerly direction and is 66 feet wide from building line to building line. There is testimony that Western avenue is 75 feet wide from curb to curb and that Argyle street is 28 feet wide from curb to curb. Argyle street runs into Western avenue from the east, but does not extend west of Western avenue. Bails for north and southbound trolley cars are located in the center of Western avenue. There is a 1 ‘Stop Sign” in the parkway between the curb and the north sidewalk of Argyle street, facing east and a few feet east of the east sidewalk of Western avenue. There were three occurrence witnesses, plaintiff, the codefendant William Dieterich and John W. Greene, the driver for the Consumers Petroleum Company, the corporate defendant. Dr. Bichard F. Greening testified in reference to the nature and extent of plaintiff’s injuries. Lester A. Clark, Alfred H. Frederick, Earl W. Bad-ford and Walter J. Smith, court reporters, testified from their notes in the impeachment of both the plaintiff and the codefendant Dieterich with reference to statements made out of court. William Currin, a police officer assigned to the Accident Prevention Bureau, testified with reference to the happenings in his presence after the accident. After the accident plaintiff was put in the automobile of the codefendant William Dieterich and taken to the Bavenswood hospital. He sustained an oblique fracture of the tibia of the left leg and a fracture of the outer surface of the condyle of the femur of the right leg. His bill in the hospital amounted to $566.90 and a fair and reasonable charge for the doctor’s services would be $900. Plaintiff returned to work on June 15, 1942. The defendants are not questioning the amount of the damages. John W. G-reene, called by plaintiff under section 60 of the Civil Practice Act, testified that he was driving an oil truck in a westerly direction on Argyle street. He had made a delivery of oil on Winnemac avenue, a block north, and was on his way to make another delivery in the vicinity of Irving Park boulevard and Western avenue, a mile and quarter south. It was dark and visibility was poor. It was raining and misty; his windshield wipers were working. He stopped his truck six or seven feet east of the east crosswalk of Western avenue. At this time plaintiff walked south on the crosswalk in front of his truck. The left side of the truck was two or three feet north of* the center of Argyle street. The truck was six or six and one half feet wide. Witness saw a “reflection of lights” to his left as plaintiff started to pass in front of the truck. There were no cars parked near the corner. The lights reflected on the side windows of the truck. It seemed to the witness that “he was coming from the south and making a right turn onto Argyle.” Witness did not see the other car. The lights seemed to be facing in witness’s direction and they appeared to be 15 or 20 feet away from his truck. Plaintiff was almost past the truck at the time witness saw the lights. After plaintiff passed in front of the truck, witness started up his truck, drove two or three feet and heard a noise. He stopped, looked out the side of his truck and saw a passenger car alongside of the truck. It was a two-door sedan and the door on the left hand side was opposite the door of the truck, two or three feet separating the two vehicles. The driver of this car was William Dieterich. The car was close to the center line of Argyle street. He did not hear any horn. Witness sat in the driver’s seat “for a minute.” The driver got out of his car and came around the rear of his car and remarked to witness: 11 The man is in front of yonr wheel.” Witness opened the door and got out. In the meantime Dieterich had the man underneath his arms and was lifting him up. Witness testified that plaintiff was in front of the front left wheel of his truck. He observed plaintiff from the time plaintiff left the curb, and said, “the lights of my truck shone right on him.” On cross-examination by the attorney for Dieterich, witness testified, “I believe we saw signs on the Dieterich car where the man had brushed against the car and wiped the rain from it. That was the door on the side of his two-door sedan. The place where the water was brushed off was just about right opposite the driver. I didn’t see the car. I saw the reflection of the lights. I couldn’t tell how fast the car was going. The rear end of the car was on the crosswalk after the accident.” He testified further that the left wheel of the truck was over the man’s leg; that he told the police that the man walked into the door of the Chevrolet. He stated further that he did not see the man walk into the door. The attorney for the corporation asked the witness upon what he based his statement to the police that the man walked into the door of the Chevrolet and an objection by the attorney for the individual defendant was sustained. He stated: “I looked at the door of the Chevrolet after the accident and I saw that something had brushed against the side of the door and wiped the rain clear from it.” His headlights were lighted at the time of the accident. The right side of his truck was about four feet from the north curb of Argyle street when he stopped at the stop sign. The stop sign is about six feet east of the crosswalk. He testified further that ‘ ‘ the man passed in front of my truck. He walked in front of my truck and was just by the front of the truck, maybe one or two seconds, until I heard a noise and then I stopped. It was a sound like somebody running up a piece — like somebody running up against a tin or something like that. It was a kind of a thud. My truck at that time was moving much slower than a walk, just starting out, moved a couple of feet and then stopped. I stopped right away quick after I heard the thud. I was north of the center of Argyle after I stopped, maybe a couple of feet. The other automobile was about three feet from my truck after I stopped. It was facing in a general direction east.. He was facing my truck a little bit. My left front wheel was two or three feet from the crosswalk, that is, two or three feet east of the crosswalk after my truck had stopped the second time. I had not reached the crosswalk at that time.” It was witness’s impression that the automobile was coming from the south and turned into Argyle, although it could have been coming from the north and turning east into Argyle, “You could just make out an outline of a pair of glasses and they were blurred so bad you couldn’t tell how far they were from you.” Both drivers were taken to the district police station, where they remained a couple of hours. A statement signed by Mr. Greene was received in evidence without objection as plaintiff’s exhibit. In this statement the witness said that the Chevrolet sedan turned to the right from Western avenue and that “the man walked into the side of the Chevrolet coach right at the door. The impact threw the man to the pavement and the left front wheel of my truck ran over his leg.” ■

William Dieterich, the individual defendant, called as a witness by plaintiff, testified that he owned a two-door Chevrolet automobile, 1940 model; that before the accident he was visiting his mother at 5009 North Oakley, which at that point is one long block east of Western avenue, and a few doors north of Argyle street; that from there' he drove to a store at Winnemac and Western'avenues on an errand for his mother. Winnemac avenue is a block north of Argyle street. He then drove south on Western avenue to Argyle street. He was in the southbound car tracks of Western avenue, making a turn east into Argyle street. His lights were on. He stopped a second or two for northbound traffic to pass. When he stopped he saw the truck about 125 feet east of Western avenue. When he started up again he saw “the truck was a little closer, I would say 75 feet.” When he got to the northbound car tracks the truck was about 60 feet east of the crosswalk. When he got to the east curb line of Wéstern avenue the truck was about 25 feet from the crosswalk, and when he got to the crosswalk the truck was about 15 feet from the crosswalk. The truck was moving, but he did not say how fast. He did not know if the truck stopped for the stop sign, that it “was traveling at all times I saw him.” Interrogated as to whether on January 9, 1942 at his home he was asked by Mr. James O’Brien in the presence of Lester A. Clark certain questions and whether he made certain answers, he answered: “I think so.” He was then asked whether at that time the following questions were asked and the following answers were made by bim:

“Q. What about our truck? Where was it just at that time?
“A. The truck was coming right around the corner.
“Q. Was it stopped?
“A.- The truck was stopped and started off again. The guy was on the floor.
“Q. It had stopped before?
“A. Yes.”

He stated that he could not recall the questions or the answers. Mr. Dieterich testified further that it was raining; that his side window was “kind of blurry”; that he could see forward; that his lights were shining ahead; that he “never” saw a pedestrian on the crosswalk at any time; that when he approached the crosswalk his car was facing east; that both the windshield wipers were working; that he was able to see the entire crosswalk as he drove towards it; that he did not see a man walking on the crosswalk; that he did not know which direction the man fell; that Ms car was a little south of the center line of Argyle at the time of the impact, maybe about three feet; that the man was lying right across the center line of Argyle and the truck was three feet north of the center line. “The man came in contact with my car first. I heard the impact right behind me, just a little back of me. The impact was with the left side of my automobile. The impact was between the door and the fender on the left hand side.” He testified that he stopped within about five feet; that “I stopped as quickly as I can”; that he opened his right door and went around the rear of his car; that the first time he saw the man on the pavement was after he went around the rear of his automobile; that the truck was stopped but the driver had not opened the door; that “he opened the door when I started to pick up the man”; that when he picked up plaintiff, his head was facing to the south; that “before the impact I would say the truck was about 20 feet away from the crosswalk. The truck was about 25 feet east of the east crosswalk of Western avenue at the time the impact took place on the crosswalk.” Officer Currin testified that he and Officer Griavin took statements from the drivers.

Plaintiff testified in his own behalf that when he arrived at the northeast corner of Western and Argyle he looked east and saw a truck about a block away. The truck was going west. He then looked west but did not see anything and he walked across proceeding south. When he got to the middle of Argyle street the truck was by the alley and going west at about 20 or 25 miles an hour. He was on the crosswalk. “Then I made a couple of steps and I looked back of me, then I saw a Chevrolet. Before I looked to the west and after I crossed the center of the street I saw an automobile about 10 feet away from me. • It was going south. It was still on Western and facing southeast, kind of straddling. I started to go back, then the car hit me and spun me around. The car hit me before I knew anything. The front of the fender on the left side hit me. It knocked me right on the crosswalk. I laid on my shoulder and I had my leg facing north. I was there about a couple of seconds, then I tried to get up, then I saw the truck about 10 or 15 feet away from me. It was going fast. I put my head down. I was afraid they might run over my head. You see, I couldn’t make it no more. They run over my legs, both of them, the left one more than the right one. I hurt my kneecap when the truck run over me, both of them. ’ ’ On cross-examination he testified that he could tell by the headlights that the vehicle a block away was a truck. When he got to the middle of the street the truck was near the alley, “I would say 35 or 40 feet away.” The truck was traveling north of the center of the street. He looked back of him and saw the automobile coming. He walked about five feet to the south of the center of the street. At that time he saw the automobile about 10 feet away to his right and he was standing still. “I tried to get back, you see. It was facing back, kind of southeast, so it was on Western avenue. I kept looking át the automobile. I tried to get back. The front fender of the automobile hit me. I tried to step back and by that time when I tried to get back it hit me, the front fender hit me and spun me around and then I landed right in the crosswalk. I figure T was about 2% to 5 feet south of the center when it hit me. I was standing still. . . . It only hit me and spun me around. I don’t know whether I came in contact with the left front of the automobile or not.” The attorney for the corporate defendant interrogated plaintiff relative to a pretrial deposition taken on August 8, 1943. He was asked whether in that deposition the following questions were put to him and whether he made the following answers :

“Q. When did you see the truck?
“A. After it run over me.
“Q. Where were you lying with reference to the truck? Were you in front of it or behind it?
“A. I was in front of it.”

In the trial he answered that he did not remember whether the questions were put to him or whether he made the answers. He was also asked as to the following questions and answers:

“Q. The front wheel, wasn’t it?
“A. Yes.
“Q. You were under the front of that?
“A. Yes.
“Q. That was after everything happened, wasn’t it?
“A. Oh, yes.”

In the trial he admitted that the latter questions were put to him and that he gave the answers. He did not recall whether he was asked, “When you came to, you were in front of the left front wheel, weren’t you?”, and he did not recall that he answered, “Yes.” He stated that the last time he saw the truck it was 15 feet away from him and that he “mentioned that.” He was then interrogated by the attorney for the corporate deféndant about an interview at the Ravens-wood hospital on December 29,1941 with Mr. James C. O’Brien, in the presence of a court reporter named Walter Smith. He was asked whether in that interview Mr. O’Brien asked him the following questions and whether he made the following answers:

“Q. How did this accident happen?
‘1 A. How it happened ?
“Q. Yes.
“A. I was walking across the street, one fellow coming from the west and was going north on Western avenue, and I was about 2 or 3 feet away from the curbstone, about 3 feet, and he cut the corner and he hit me and he knocked me under the Consumer oil truck and I got my both legs under there.
“Q. The front of the truck, was it?
“A. What?
“Q. He threw you under the front of the truck?
“A. Yes.
‘ ‘ Q. Which way were you going ?
“A. I was going south.
“Q. What part of the truck hit you first?
“A. The front part, both of them. That one didn’t hit me at all. I mean the Consumer’s. He just ran over me after. ’ ’

In the trial he answered that the questions were not put to him and that he did not make the answers. He was also asked as to whether Mr. O’Brien asked him the following questions and whether he gave the following answers:

“Q. This car was going to go north and turn the corner, is that it?
“A. Yes.
“Q. And hit you, and threw you back in front of that truck?
“A. Yes.
“Q. Was there anybody with you at the time?
“A. Nobody with me.
“Q. Did you see the Consumer truck before it hit you?
“A. No, I did not.”

Answering the interrogatory as to whether the questions were put to him by Mr. O ’Brien and whether he made the answers indicated, he said, “Not that I remember.” The testimony as to the impeachment of the witness at the request of the attorney for the individual defendant was admitted only as to the corporate defendant, and the jury was so instructed.

Walter J. Smith, the shorthand reporter, testified about the interview at the Ravenswood hospital on December 29, 1941. He read from his original shorthand notes as to the questions put by Mr. O’Brien and the answers made by plaintiff. Outside of the presence of the jury the attorney for the individual defendant requested the shorthand reporter to read the questions and answers on this interview. The court permitted this to be done, over the objection of the attorney for the corporate defendant. The attorney for plaintiff then stated that in the presence of the jury he would like to ask Mr. Smith, the shorthand reporter, to read certain parts of the interview at the hospital. The attorney for the corporate defendant objected. In the presence of the jury the attorney for plaintiff was permitted to have Mr. Smith testify that in the interview at the hospital the following questions and answers were made :

££Q. Had the truck just started up at the time?
££A. No, both of them were going full speed, otherwise it never would have happened.
“Q. You didn’t know it was there until after you were in front of it?
££A. If I got by that Consumer truck I would have been all right.”

Lester A. Clark testified that on January 9, 1942 he accompanied Mr. O’Brien to the home of Mr. Dieterich, the individual defendant. He testified as to the questions asked of and the answers made by that defendant. Mr. Earl W. Radford, another shorthand reporter, read from his notes as to questions put to plaintiff and answers made by him in a pretrial deposition taken on August 18, 1942. The testimony of the reporters supported the contention of the corporate defendant as to the statements made by the witnesses in the interview at the hospital, at the home and in the pretrial deposition. Alfred H. Frederick, a shorthand reporter, also testified as to the pretrial deposition of plaintiff. John Greene, the driver of the truck, called by the corporate defendant, testified that he had been driving automobiles since 1911; that he had been employed by the corporate defendant for 15 years; that it was raining and misty the evening of the accident; that his windshield wipers were working; that the glass on the door was wet with raindrops; that the visibility was bad from the side and that he could not see through the side window “very well.” William Dieterich, the individual defendant, called in his own behalf, testified that he was a tool and die maker ; that after he stopped his car for the northbound traffic he started out in first speed; that he “Must have gone about 5 to 8 miles an hour ’ ’; that he did not get into second speed at any time; that he could “see good” at the time; that he did not see anyone on the crosswalk; that when the front part of his automobile was almost past the crosswalk he felt an impact on the side of his automobile just behind the driver’s seat; that he looked around and saw a man falling; that he stopped within 5 feet; that no part of witness’s automobile came in contact with the man, so far as he could see; and that there were no marks on the side of witness’s car that he knew of. On cross-examination by the attorney for plaintiff, witness stated that after he stopped his car he got out on the right hand side and that the truck was then about 20 to 25 feet away.

The only point urged by the individual defendant is that the verdict as to him is against the manifest weight of the evidence. The testimony of John W. Greene, the driver of the truck, and of William Dieterich, the driver of the Chevrolet automobile, tends to sustain the latter’s position that plaintiff walked into the side of the automobile. It is strange that Dieterich, although having a good view to the east, did not see plaintiff as he walked south on the crosswalk. Deiterich testified that he had a clear view of the crosswalk and that he observed the truck as it was being driven in a westerly direction toward Western avenue. Plaintiff had a right to walk on the crosswalk. He was seen by Mr. Greene as he walked in front of the truck. Both the truck and the automobile were to the right of the'center of the street in the direction in which each was proceeding. It is undisputed that plaintiff had walked approximately five feet south of the center of the street before the impact. He testified that he was struck by the front part of the left front fender of Dieterich’s automobile, and that he was knocked down on the crosswalk. In our opinion, the evidence warranted the jury in finding that William Dieterich was negligent in the operation of his automobile, that such negligence was the proximate cause of the injuries suffered by plaintiff, and that- plaintiff was in the exercise of due care for his own safety. We find that the verdict as to William Dieterich is not against the manifest weight of the evidence.

We turn to a consideration of the contention of the corporate defendant that it was not guilty of negligence as a matter of law. The rule is that negligence and contributory negligence are questions of fact for the jury. They become questions of law only when the evidence is so clearly insufficient to establish negligence or due care that all reasonable minds would reach the conclusion that there was no negligence, or that there was contributory negligence. A motion to direct a verdict for the defendant preserves for review only a question of law, whether from the evidence in favor of plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. The evidence is clear that plaintiff was in the exercise of due care for his own safety. He was walking in a southerly direction on the crosswalk. He testified that when he was knocked down by the front fender of the Chevrolet automobile, he lay on his shoulder with his “leg facing north”; that he was there “about a couple of seconds ’ ’; that he tried to get up; that then he saw the truck 10 or 15 feet away from him; that it was going fast; that he put his head down as he was afraid the truck might run over his head, and that the truck ran over his legs. Although this testimony is contrary to statements which he is alleged to have made in the interview at the hospital and in the pretrial deposition, in passing on a motion for a directed verdict or a judgment notwithstanding the verdict, we are required to assume the truth of such testimony. We are unable to say as a matter of law that the corporate defendant was not guilty of negligence.

The trial court directed Walter Smith, the shorthand reporter, to read in detail, outside of the presence of the jury, the statements made by plaintiff to Mr. O’Brien on December 29, 1941. This reporter had testified in impeachment of the plaintiff. On direct examination he was merely interrogated with reference to the questions put and the answers given, directly impeaching the testimony of the plaintiff, in accordance with the foundation laid prior to that time while the plaintiff was on the stand. Counsel for plaintiff picked out two isolated questions and answers. The answers clearly contain conclusions and inferences that could not be properly introduced as evidence. The conclusions were: “No, both of them were going full speed, otherwise it never would have happened,” and “If I got by that Consumer truck I think I would have been all right.” We agree with the corporate defendant that under the circumstances shown by the record it was improper to require the reporter to testify as to the isolated questions and answers. It is clear that the jury should not have been permitted to hear these answers containing conclusions. The corporate defendant also complains that it was prejudiced by the action of plaintiff’s attorney in putting* the following question to Mr. Smith, the shorthand reporter: “And does it appear from your notes that any nurse came in and asked you to leave because Mr. Eisch wasn’t in any condition to give a statement?”, to which question the witness answered, “No.” On motion of defendant the answer was stricken and the jury was instructed to disregard “the last statement.” There is no evidence in the record that plaintiff was not in any condition to give a statement, nor was there any evidence that a nurse came in and asked the witness and Mr. O’Brien to leave. We agree that asking this question was likely to create an inference in the minds of the jury that plaintiff’s condition was such that he could not give a clear statement of the occurrence and that a nurse did instruct Mr. O’Brien and Mr. Smith to leave. The physical facts in the case presented tend to show that this defendant was not guilty of negligence. The impeaching testimony tends to impair the value of the testimony of plaintiff as to the movement of the truck. In this condition of the record we find that it was error for the court to require the shorthand reporter to read the “answers of plaintiff giving his conclusions that both cars were going at full speed, or that the accident would not have happened and that if he “got by” the truck he would have been all right. We would not reverse for that reason alone. In our opinion the verdict is against the manifest weight of the evidence as to the corporate defendant.

The corporate defendant maintains that the court erred in giving* an instruction on the credibility of witnesses and the weight to be given to their testimony, on behalf of the individual defendant. It complains of. the second paragraph of the instruction, which reads: “If you believe that any witness has knowingly or wilfully testified falsely to any fact material to the issues in this case, you are at liberty to disregard the whole of the testimony of such witness, except in so far as the testimony may have been corroborated by other credible evidence or other credible facts and circumstances in the evidence.” Defendant points out that this instruction was held to be reversible error in People v. Flynn, 378 Ill. 351. We observe that the Flynn case states that it would have been better to.use the expression “other credible evidence.” That phrase was used in the instruction in the instant case. However, in the Flynn case the court held that the use of the words “as to any material fact in issue in this case” without explaining to the jury what facts were material, made the instruction objectionable. The court pointed out that one of defendant’s witnesses was impeached on immaterial facts and that “it may well be that the jury believed she had been impeached, instead, upon material facts.” In People v. Wells, 380 Ill. 347, commenting on the same subject, the Supreme Court said (358)

“Undoubtedly the rule is, that where this instruction is given, other instructions should be given defining the issues, so as not to throw the burden on the jury of ascertaining what are and what are not material issues of fact. Such an instruction has been many times condemned and held to be improper as it leaves the jury to determine the legal question as to what are material facts or essential elements of the crime charged.”

Plaintiff points out that the cases in which the instruction-was condemned were criminal cases. In our opinion the remarks of the Supreme Court are applicable to similar instructions given in civil cases. We do not say that we would reverse this case because of the giving of the instruction. However, as the case is to be tried again, the rule laid down in the Flynn and Wells cases should be observed. The corporate defendant also complains of the refusal of the court to give the following instruction:

“The court instructs you that if you find from the evidence, under the instructions of the court, that the plaintiff was suddenly and without any negligence on the part of the driver of the defendant, Consumers Petroleum Company, placed in a position of danger, then in order to charge the defendant, Consumers Petroleum Company, with the duty to avoid injury to the plaintiff, the plaintiff must show by a preponderance of the evidence that the circumstances were such that the driver of the defendant, Consumers Petroleum Company, had time and opportunity to become conscious, by the exercise of ordinary care, of the facts and circumstances before him. And if you further believe under the instructions of the court, that the circumstances as shown by the evidence did not charge the said defendant, Consumers Petroleum Company, with the duty as thus defined, or if you believe from the evidence under the instructions of the court that the driver of the defendant, Consumers Petroleum Company, did not have an opportunity or reasonable time to perform by the exercise of ordinary care such duty as thus defined, then you should find the defendant, Consumers Petroleum Company, not guilty.”

Plaintiff points out that 15 other instructions were given at the request of the attorney for this defendant and that one of these instructions contains a statement of the same theory, to all intents and purposes, as the refused instruction. The court is not required to give repeated instructions announcing the same rule or law but in slightly different language. Under the circumstances, the court did not err in refusing to give this instruction, although we believe it presents defendant’s theory in a clearer manner than the one given.

For the reasons stated, the judgment of the circuit court of Cook county is affirmed as to the defendant William Dieterich, and reversed and the cause remanded as to the defendant Consumers Petroleum Company, a corporation, with directions to proceed in a manner not inconsistent with this opinion. In view of the fact that there is no complaint by defendant or plaintiff as to the amount of damages awarded, on a retrial of the case it will not be necessary for the jury to make any finding as to damages.

Judgment affirmed as to William • Dieterich and judgment reversed and cause remanded as to Consumers Petroleum Company.

Kiley, J., concurs.

Hebel, P. J., took no part.