text:
    (No. 4572
    Leota Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1955.

      Opinion on Rehearing filed January 8, 1957.

    Robson, Masters, and Ryan, Attorneys for Claimant.
    Latham Castle, Attorney General; Thomas G. Cronin, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Leota Anderson, in her complaint alleges that the State of Illinois negligently maintained the floor of the McDonough Street bridge, which crosses the Deep Waterway in the City of Joliet, Illinois. It further alleges that, while driving across said bridge on April 30, 1953, her automobile was thrown out of control, due to a defect in the bridge floor, and into and against the steel upright of the bridge. She sustained personal injuries, for which she claims the sum of $6,500.00, and damages to her automobile, for which she claims the sum of $612.00.

Her complaint alleges the following acts of negligence on the part of respondent:

"(a) Negligently and carelessly peimitted large holes to remain and exist in the floor of said bridge;
(b) Negligently and carelessly permitted deep ruts and other irregularities to be and remain in the'floor of said bridge;
(c) Negligently and carelessly maintained or failed to maintain the floor of said bridge.”

She further alleges that this condition had existed for a considerable period of time prior to the accident, and that respondent knew, or should have known of the existence of the defect, which she claims caused the accident.

Respondent filed no answer to the complaint, and, under Court of Claims Rule No. 11, a general denial tif the facts set forth in the complaint is considered to have been filed.

It is well established that the State of Illinois does not act as an insurer in the maintenance of its highways and bridges. Respondent can be held responsible in this case only if it is established by the greater weight of the evidence that claimant, while in the exercise of due care and caution, was injured and damaged as the proximate result of a defect, which was dangerous and unsafe for ordinary travel, and of which the state had actual or constructive notice, and was negligent in allowing such defect to remain uncorrected.

The burden of proof is, of course, upon claimant.

In determining the question of liability, we will briefly set forth claimant’s testimony, inasumch as she was the only witness to testify at the hearing with respect to the happening of the accident and the condition of the bridge.

Claimant testified that she was employed by the Caterpillar Tractor Company as secretary to the manager; that on the 30th of April, 1953, at approximately 5:00 P. M., she was driving her Ford sedan automobile at approximately 10 miles per hour across the Mc-Donough Street bridge going home from work. At the time she crossed the bridge it was raining quite hard and the traffic was very heavy going east, the direction in which she was traveling. She was approximately 10 feet behind the automobile proceeding immediately in front of her. She testified that, as she approached and came to the center of the bridge in second gear, the left front wheel of her automobile caught in a deep rut in the road, which caused the steering wheel to spin out of her hand, and the automobile to swerve across the 16 foot roadway out of control, over a curb 10 inches in heighth, and into a steel upright on the north side of the bridge. She hit the windshield, and lost consciousness. ■

She further testified that, when she lost control, she applied her brakes, and the automobile slid into the upright- after going over the curb.

Two sets of streetcar tracks run along the bridge, one eastbound and the other westbound. Claimant testified that her left wheels were to the right of the north or inside rail of the eastbound tracks at the time she lost control of her automobile.

Claimant’s exhibits Nos. 2 and 3, which are photographs of the automobile, indicate a substantial amount of damage at the point of impact, which appears to be squarely in the middle of the front bumper. The damage, as shown by the photographs, appears to us to be more substantial than what could ordinarily be expected in a collision with the upright at the speed and in the manner described by claimant.

Later claimant, on being recalled by her attorney to testify, -identified the rut, which she referred to as claimant’s exhibit No. 7, and circled it in ink.

From an examination of exhibit No. 7, which is a photograph taken on May 1,1953, and identified by claimant as correctly portraying the condition of the bridge floor on that date, we note the place encircled. There appears to be a small hole or break in the wooden bridge floor near the north rail of the streetcar track. The photograph, however, is of no help in determining the size and character of the hole or break. It is| impossible for us to tell from viewing the photograph whether it was a defect of recent or long standing origin, or whether it was of sufficient size to catch the wheel of claimant’s automobile, and cause it to go out of control. Nowhere in the record is there any further testimony concerning the character of this hole or break.

It appears from the record that the surface of the bridge had, for some while, been deteriorating. It was constructed of wood, arid had, in some places, been patched by iron plates. Respondent’s exhibit No. 2, the Departmental Report, established that respondent had, on April 12, 1952, awarded a contract for. the removal of the wooden floor, and replacement of it with a steel grid floor, but, due to the shortage of steel, the contractor had been unable to secure materials, and commence work until May 27, 1953.

Claimant offered another exhibit, No. 5, to show the character of the bridge floor, and also to prove notice to respondent of the condition of the bridge floor. This exhibit was of a photograph published in the Joliet Herald News on Sunday, April 12, 1953, showing the bridge surface, and calling attention to the fact of the deterioration of the flooring, which had made the bridge so bumpy that cars bounced about when crossing it.

From the above, it does not appear to us that claimant has borne the burden of proving either the existence of a defect, which caused the accident, or notice to the state of the defect. Even assuming for the moment the existence of the “rut”, and that it was of sufficient size to have caused claimant to lose control of her automobile, and thus be a danger to the traveling public, yet nowhere is there any evidence from which we can find that the state had notice of the existence of such a rut. The only evidence, as we have stated before, is that the bridge was generally deteriorating. There is no evidence as to the length of time this rut was known by anyone to exist. Nowhere in the evidence is there any contention that any other portion of the bridge floor presented a dangerous hazard to the traveling public.

It is to be noted from claimant’s exhibit No. 5, which she contends establishes notice to the state, that nowhere in the photograph or accompanying comment is there any indication of a rut or hole, which would cause a driver to lose control of an automobile. The hole referred to in that picture is one in which the comment states was patched with an iron plate. The newspaper only complained that the bridge was bumpy. This photograph does not constitute proof of notice to the state of a dangerous defect.

Nor can we say that the general deteriorating condition of the bridge floor was sufficient in itself to establish such notice, either actual or constructive. Claimant does not base her claim on the general condition of the bridge floor, but, rather, a specific hole or rut, which caused her to lose control of her automobile. It is this particular condition of which the state' must have had knowledge before notice can be said to have been proved.

Constructive notice, likewise, has not been proved. Such notice in this case can only be established by a showing that the defect complained of existed for a sufficient length of time from which a presumption of knowledge arose. No evidence was presented as to when this rut originated, or the cause thereof; and, therefore, no time has been established from which knowledge can be presumed.

There is no contention that respondent failed to conduct reasonable inspections of the bridge, and even so there could be no contention that the defect should have been discovered prior to the accident, inasmuch as there is no- proof when the defect came into existence, or no proof that the state should have anticipated the defect, such as from, a history of prior accidents occurring on the floor of the bridge due to defects of such character.

It cannot be contended from the mere fact that the state had let a contract to replace the surface of the bridge that it had notice of a dangerous hazard. Bridge floors, like anything else, wear out, and must be replaced in the natural course of events. The fact that such was contemplated does, not, in the absence of other evidence, indicate a knowledge upon the part of the state that the bridge was dangerous and hazardous to the traveling public.

In addition to the question of notice, claimant has not established to our satisfaction the existence of a defect large enough to have caused her automobile to take the action it did. She submitted no evidence of measurements. She called no witness, who was familiar with the surface of the bridge.

Without further evidence establishing the existence of a defect, we cannot give much weight to claimant’s testimony in regard to the alleged defect, since her testimony is very meager in this regard. She was traveling closely behind the automobile immediately preceding her, bumper to bumper as she described it at one place in her testimony, and in all probability claimant did not see the actual floor of the bridge ahead of her. We note she did not testify that she saw the rut. We also note that, when she was asked by her attorney to point out the rut, she did so without giving any explanation as to how she knew that was the place. She did not testify that she had ever seen that particular rut before, although she crossed the bridge every day. It appears to us to be somewhat unusual that under these circumstances she could be so positive concerning this particular location.

We further note that the location of the alleged rut or hole, which claimant indicated on the photograph, was immediately adjacent to the north or inside streetcar track rail. Her testimony does not convince us that it was not the wet rail, rather than a hole or rut, which caused her to lose control of her automobile. This Court has previously dealt with the question of the necessity of claimant to produce evidence sufficient to satisfy the Court in regard to the proof of the elements required in order to establish liability on the part of the state. In Dominic Di Orio vs. State of Illinois, 20 C.C.R. 53, the Court stated:

“It would establish a dangerous precedent for this Court to hold that the state would be liable for all defects on a highway, which it was under a duty to maintain. There is no evidence in this record of the nature of the hole, its size, how long it had been there, how it had been created, or of any notice to the state of its existence, either actual or constructive. There is, therefore, nothing in the record to show that the respondent was guilty of any negligence. To hold that the state would be liable without notice, actual or constructive, would be making the state an insurer.
This Court, by prior decision, is committed to the rule that the evidence must show that the state had actual or constructive notice of the defect, and negligently failed to take precaution to protect the traveling public. (Dockery vs. State of Illinois, 18 C.C.R. 177).”

In the instant case, claimant has not, at least to our satisfaction, borne the burden of proving her case. In Flint vs. State of Illinois, 21 C.C.R. 80, a case similar to this one, it was stated at pages 82 and 83:

“This Court must determine both the law and the facts in a case. Unlike courts of review, we cannot say, 'it is for the jury’, nor can we avoid our fact finding duties, as trial courts are able to do in jury cases.”

In deciding this case, we have attempted to apply the facts to the law, as we understand them both to be, and have concluded that the record in this case does not justify our finding for claimant. This claim is, therefore, denied.

Opinion on Rehearing

Claimant, Leota Anderson, in her complaint alleges that the State of Illinois negligently maintained the floor of the McDonough Street bridge, which crosses the Deep Waterway in the City of Joliet, Illinois. It further alleges that, while driving across said bridge on April 30, 1953, her automobile was thrown out of control, due to a defect in the bridge floor, and into and against the steel upright of the bridge. She sustained personal injuries, for which she claims the sum of $6,500.00, and damages to her automobile, for which she claims the sum of $612.00.

Her complaint alleges the following acts of negligence on the part of respondent:

“(a) Negligently and carelessly permitted large holes to remain and exist in the floor of said bridge;
(b) Negligently and carelessly permitted deep ruts and other irregularities to be and remain in the floor of said bridge;
(c) Negligently and carelessly maintained or failed to maintain the floor of said bridge.”

She further alleges that this condition had existed for a considerable period of time prior to the accident, and that respondent knew or should have known of the existence of the defect, which she claims caused the accident.

Respondent filed no answer to the complaint, and, under Court of Claims Rule No. 11, a general denial of the facts set forth in the complaint is considered filed.

It is well established that the State of Illinois does not act as an insurer in the maintenance of its highways and bridges. Respondent can be held responsible in this case only, if it is established by the greater weight of the evidence that claimant, while in the exercise of due care and caution, was injured and damaged as the proximate result of a defect, which made the bridge dangerous and unsafe for ordinary travel, and that the state had actual or constructive notice of the defect, and was negligent in allowing- such defect to remain uncorrected.

Upon the first trial of the cause, claimant failed to prove her case, due primarily to the total lack of evidence sufficient to establish that respondent had actual or constructive notice of the alleged defect. Subsequent to the denial of the claim by this Court, in a written opinion heretofore filed, a new trial was granted claimant on the ground of newly discovered evidence bearing upon this essential factor.

The facts concerning the accident and the defect complained of, as shown by the record now before the Court, are as follows:

Claimant was employed by the Caterpillar Tractor Company as secretary to the manager. On the 30th of April, 1953, at approximately 5:00 P. M., she was driving her Ford sedan automobile at approximately 10 miles per hour across the McDonough Street bridge going-home from work. At the time she crossed the bridge it was raining- quite hard, and the traffic was very heavy going east, the direction in which she was traveling*. She was approximately ten feet behind the automobile proceeding immediately in front of her. She testified that, as she approached and came to the center of the bridge in second gear, the left front wheel of her automobile caught in a deep rut in the road, which caused the steering* wheel to spin out of her hand, and the automobile to swerve out of control across the 16 foot roadway, over a curb 10 inches in heighth, and into a steel upright on the north side of the bridge. She hit the windshield, and lost consciousness.

She further testified that, when she lost control of her automobile, she applied her brakes, and her automobile slid into the upright after going over the curb.

Two sets of streetcar tracks run along the bridge, one eastbound and the other westbound. Claimant testified that the left wheels were to the right of the north or inside rail of the eastbound tracks at the time she lost control of her automobile.

Claimant’s exhibits Nos. 2 and 3, which are photographs of the automobile, indicate a substantial amount of damage at the point of impact, which appears to be squarely in the middle of the front bumper.

The claimant, on being recalled by her attorney to testify, identified the rut, which she referred to in claimant’s exhibt No. 7, and circled it in ink.

From an examination of exhibit No. 7, which is a photograph taken on May 1, 1953, and identified by claimant as correctly portraying the condition of the bridge floor on that date, we note the place encircled. There appears to be a small hole or break in the wooden bridge floor near the north rail of the streetcar track. The photograph, however, is of no help in determining the size and character of the hole or break. It is impossible for us to tell from viewing the photograph whether it was a defect of recent or long standing origin, or whether it was of sufficient size to catch the wheel of claimant’s automobile and cause it to go out of control. Nowhere in the record of the first hearing was there any further testimony concerning the character of this hole or break.

On the re-trial, however, William Daggett, a Police Sergeant of the City of Joliet, assigned to the Traffic Division, testified that he came upon the scene of the accident shortly after it occurred, and before either the claimant or her automobile had been moved.

He testified that the defect circled by claimant on her exhibit No. 7 was a hole, approximately one and one-half or two feet long, about four or five inches wide, and about three or four inches deep. He further stated that he observed a skid mark running from the hole in the bridge floor to that portion of the bridge where the left front of claimant’s automobile struck the bridge girder.

He also testified that, about two weeks prior to the accident in question, he was driving his own private automobile over the bridge, and hit the same hole, ripping his tire. He had observed the condition of the bridge, and stated that it was, on the day in question, in very poor condition, and had been in a bad state of repair for approximately one month prior to the accident, and that the Police Department had received numerous complaints about its condition.

It appears from the record that the surface of the bridge had, for some while, been deteriorating. It was constructed of wood, and had, in some places, been patched by iron plates. Respondent’s exhibit No. 2, the Departmental Report, established- that respondent had, on April 12, 1952, awarded a contract for the removal of the wooden floor and replacement of it with a steel grid floor, but, due to the shortage of steel, the contractor had been unable to secure materials, and commence work until May 27,1953.

Claimant offered another exhibit, marked No. 5, to show the character of the bridge floor, and also to prove notice to respondent of the bridge floor condition. This exhibit was a photograph, published in the Joliet Herald News on Sunday, April 12, 1953, showing the bridge surface, and calling attention to the fact that the deterioration of the flooring had made the bridge so bumpy that cars bounced about when crossing it. .

Although the exhibits are not in and of themselves sufficient to establish constructive notice of the particular defect complained of, the testimony of William Daggett does, in our judgment, coupled with the exhibits, sufficiently establish this indispensable element, which must be proven by claimants in this type of cases.

In our judgment, the record now establishes that respondent had sufficient time to become apprised of the existence of this defect, and should have repaired it, inasmuch as it was of sufficient size to constitute a danger to the traveling public.

With respect to the question of due care upon the part of claimant, we find that the record is sufficient to establish this element. Due to the rain and traffic at the time of the accident, it is understandable that she did not see the hole in time to avoid it.

We, therefore, believe that the record now contains sufficient evidence to support claimant’s contention that the accident was the proximate result of negligence on the part of respondent, and, therefore, will consider the question of damages.

The injuries received by claimant consisted of cuts upon her forehead and both knees. She was rendered unconscious when her automobile struck the girder. She received emergency treatment at St. Joseph’s Hospital in Joliet, and was confined to her home for ten days. She then returned to work, and has been working ever since.

Dr. I. Joshua Speigel examined claimant on May 31, 1956, pursuant to an order of this Court, and found that she had suffered a mild cerebral concussion, and has a numbness of the right side of her forehead, which is present at all times. He found that the numbness was caused by trauma to the supraorbital nerve, which has resulted in “paralysis, partial, supraorbital nerve (right) secondary to traumatic neuritis ’ ’, and, in his opinion, the condition is permanent, which neither medical nor surgical treatment can change.

He found that she has made a “relatively gratifying recovery”, and now “has only occassional mild headaches on the right side of the head”, the type of which comes under the heading of a group of symptoms known as “Post-Concussional Syndrome”, with respect to which no definite prognosis can be made.

Dr. Speigel also reported that he performed a detailed neurological examination upon claimant. His report indicates he found her to be intelligent, bright, alert, cooperative, pleasant, and well oriented in all spheres.

He noted a “well healed transverse laceration above the right supraciliary ridge, and above this was a small three inch square area of hypalgesia and hypesthesia. There was a peculiar bluish ridge above the scar extending upwards and ending in a bluish discoloration”. He further reported that “the laceration of the scalp is now healed, and is in and of itself not a source of disability other than cosmetically”. He noted no other symptoms with the exception that claimant complained that she “has pain in the knees from time to time”.

The only other medical evidence offered by claimant in the record was the testimony of Dr. Albert C. Field, Oak Park, Illinois, who examined claimant once on December 5, 1953, sixteen days prior to the first hearing of the cause.

Her treating physician, Dr. Lofdahl, was not called as a witness either at the first hearing. or the second hearing.

Dr. Field’s testimony with respect to the condition of claimant’s knees was that .upon each was a scar, and that there was some limitation of flexion of the left knee; that the semi-lunar cartilage was injured, and that he “thought” the condition was permanent.

He further stated that it was then too early to make a definite prognosis as to whether - or not the cartilage should be removed by surgery, but that she should be kept under observation, and, if pain and limitation persisted, surgery would be indicated.

On cross-examination, he acknowledged, in answer to a line of questioning relative to permanency, that he did not know whether she would have improvement or not.

His only expressed basis for finding that the cartilage was damaged was a limitation of extension, pain, rigidity, and muscle spasms in the knee joint at the time of examination, and a pain located over the head of the tibia ’ ’.

Claimant herself testified only at the original hearing on December 21, 1953, and was present before the Court in compliance with its order on October 26, 1956.

In her testimony at the original hearing* she testified that her salary at that time was $100.00 per week; that she lost two weeks time from her employment; that she incurred medical expense of $30.00 for treatment by Dr. G. A. Lofdahl, her family physician, by reason of the accident ; that she could not bend her left knee all the way, and that the right knee was “the same but not quite as bad”, and that the knees pained her; that the right forehead area was numb; that she had headaches, was nervous, and suffered spells of dizziness; that she was examined by Dr. Field at the request of her attorney; and that the cost of repairing her automobile was $612.00, which' she had paid to the Joliet Motor Sales on September'9, 1953.

Claimant acknowledged before the Court on October 26, 1956 that there has been no further medical treatment with respect to her knee condition. The scar on that date did not appear to the Court to be greatly disfiguring, although it was visible at close range.

It is difficult for us to fix money damages in this case. The main complaint appears to be the numbness of the right forehead, which, although discomforting, does not appear from the record to affect claimant adversely.

She does, however, continue to have occasional headaches, which respond to medication, and does still complain that her knees pain her to some extent.

It appears to us, however, that, inasmuch as nothing-further has been done with respect to the knee condition for more than three years, when, from Dr. Field’s testimony, surgery could be resorted to, apparently the condition falls considerably short of being a disabling one. We feel that expressions of pain, unaccompanied by more definite and recent medical testimony, are of little probative value, and can not support a large recovery for that particular injury.

We believe that, upon the record furnished us in this case, an award for the special damages sustained, being loss of earnings $200.00, medical expenses $30.00, and damages to automobile $612.00, a total of $842.00, plus an additional sum of $1,500.00 for personal injuries sustained, is ample.

Wherefore, the claim in hereby allowed in the sum of $2,342.00.


source: Caselaw Access Project

author: Tolson, C. J.

license: Public Domain

text:
    (No. 4602
    The County of Bond and the County of Clinton of the State of Illinois, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    Joseph B. Schlarman and Robert F. Smith, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On January 25, 1954, the County of Bond and the County of Clinton filed their complaint against the State of Illinois for damages to a county line bridge, owned and maintained by the two counties.

The record consists of the following:

1. Complaint.
2. Departmental Report.
5. Transcript of evidence.
4. Abstract of the evidence.
5. Statement, brief and argument of claimant.
6. Statement, brief and argument of respondent.
7. Reply brief of claimant.

The facts of the case are as follows:

State Aid Route No. 1 runs in an east-west direction, and divides the County of Bond on the south and the County of Clinton on the north. The two counties jointly maintain the roads and bridges, and, in particular, a 60 foot, single lane, steel truss bridge across Flat Branch Creek.

Several years prior to the 28th of January, 1952, the date of the accident, the bridge was examined by County Engineers, and found to be safe for a 5 ton limit. Claimants caused signs to be posted 100 feet from either approach to the bridge, bearing the legend “Load Limit 5 Ton”.

On January 28, 1952, Raymond Habler, an employee of the Division of Standards of the Department of Agriculture, was driving a state truck along said State Aid Road. The truck contained equipment for the purpose of testing scales, and weighed 37,000 pounds. He crossed Flat Branch Creek Bridge at a speed of from 25 to 30 miles per hour. The bridge collapsed, and the two counties were compelled to spend the sum of $6,738.58 for repairs.

Witnesses for respondent stated that they did not notice the signs, but the evidence from witnesses for claimants, together with the photographs, admitted in evidence, establish conclusively that the bridge was posted for a 5 ton limit.

The driving of a motor truck weighing 19 tons over and across a bridge posted for a 5 ton limit was a negligent act, and this Court, therefore, finds that respondent was guilty of negligence.

Respondent urges that claimant has not established the true measure of damages, and contends that, when property cannot be repaired, the cost of replacement is not the correct measure of damage. Johnson vs. Clikeman, 343 Ill. 346.

Claimants reply hy stating that the counties did not build a new bridge, but simply replaced the steel girders over existing abutments, and replaced the floor.

Neither parties were able to establish the age of the bridge, so that normal depreciation could be considered, and the record is silent as to the amount received by claimants when the old bridge was junked.

The question of salvage was presented to this Court in the case of Dixon Fruit Company vs. State of Illinois, Case No. 4662, opinion filed March 16, 1956. In this case, a truck had been set afire by an inmate of the Dixon State School, and burned beyond repair. At page 11, the Court said:

“From the evidence we must assume that the truck was not capable of being repaired economically. Consequently, its only value on the market was as junk, and whatever parts might be salvaged therefrom.
The burden of proof on the question of damages, as stated by the Supreme Court of Illinois in N. V. C. & St. L. R.R. vs. Transit Lines, 408 Ill. 336 at page 340, is, ‘The plaintiff has the burden of establishing the damages, which result from the defendant’s tortious act, but, insofar as it may be contended that the damages might or should have been minimized by taking steps to reduce the resulting damages, the burden of proof rests upon the defendant.’
The Court there rejected a rale, which would have required plaintiffs, ‘In cases involving destruction of property to have experts qualify to prove to what use the remaining material might be made, and determine whether any value existed over and above the cost of transportation, and many other factors, which would place upon a plaintiff in a law suit involving the question of damages to personal property an intolerable and unnecessary burden.' ”

In the instant case, the itemized statement contains a figure of $544.03 for “Cost of labor for repair of bridge”. Undoubtedly a portion of this fund was used to remove the old bridge. We believe it also a fair assumption that the old bridge was worth a few hundred dollars as junk.

An award is, therefore, made to claimants in the amount of $6,500.00.


author: Wham, J.

text:
    (No. 4603
    Ena L. Petty, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    Fleetwood M. McCoy, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan and John L. Roach, Assistant Attorneys General, for Respondent.
   Wham, J.

Claimant, Ena L. Petty, received personal injuries, consisting of a broken collar bone and lacerations, when she fell while descending a flight of stairs in the Elgin State Hospital on August 8, 1953, while upon the premises as a visitor of an inmate, for which injuries she has filed a petition against the State of Illinois seeking recovery in the amount of $7,500.00.

She alleges in the petition that her fall was caused by the “careless, negligent and improper application of an extremely slippery polishing material or substance” on the floor of the corridor and the stairway of said hospital.

Respondent, having filed no answer, relied upon Rule 11 of the Court of Claims to effect a general denial of the allegations set forth in the petition.

The evidence offered by claimant consisted of herself and two companions, who had come to visit her nephew, an inmate of the hospital. One of the visitors was the father of the inmate, and the brother of claimant ; the other was a young girl, 16 years of age, the niece of claimant.

These three witnesses all testified that, upon arrival at the hospital, they were directed to the second floor of the building wherein their relative was quartered. They proceeded up the stairs and along a corridor for some distance, whereupon they were informed that he was on the first rather than the second floor. They retraced their steps to the stairway, and, as claimant was stepping from the second floor corridor to the top step, she fell down the flight of stairs receiving the injuries for which she complains.

With respect to the condition of the corridor and the stairway, each of these three witnesses testified in basically the same manner, namely, that the floor of the corridor and the tread of the stairs were so heavily waxed and slickly polished that it seemed as slick as ice, as they walked thereon. Claimant testified that she and the others commented about this condition of the floor, as they came along the corridor after ascending the flight of stairs. She further stated that the wax was so thick, and the surface so slick, that she had a fear she would slip and fall at any minute.

On cross-examination, she admitted that she did not grasp the railing, as she started down the stairs. Respondent’s evidence established that there was a railing on each side of the stairway.

Mr. Pitts, brother of claimant, testified that on the way up the stairs he made mention to his companions that the steps were polished. He further testified that the corridor, as well as the stairs, were slippery, and that he also mentioned several places they had missed polishing. He also testified that it was like walking on ice.

Jean Brane, niece of claimant, the other occurrence witness, testified that, when she reached the head of the stairs on the way down from the second floor, she told claimant she had never seen such a floor condition before.

These were the only witnesses offered by claimant with respect to the question of liability.

The evidence offered by respondent is all to the contrary upon the waxing and polishing of the corridor and stairs. Frances Richey, a psychiatric aide of 20 years standing, testified that she supervised the details of cleaning the corridors and stairs in the building wherein the fall occurred. She stated that only clear water was used to clean the corridors and stairs, and that wax was never applied. She further stated that inmate labor was used to mop the floors, and that the time of mopping was always scheduled at approximately 8:00 A. M. No waxing or polishing material was furnished to, nor was it available to the inmates at any time.

This witness was unable to recall specifically conducting the inspection of the stairs and corridor on the particular date of the accident, inasmuch as she did not learn of the accident until the day after. She did state, however, that her duties took her up the stairs and down the corridor in question a number of times each day, and that among her duties was the inspection of the stairs and corridor, and the assignment of inmates to the performance of the necessary labor in keeping the corridor and stairs clean. She stated definitely that no wax was ever used on the corridor and stair, and that she was on duty the day of the accident. She further stated that no supplies were available to the inmates except those passed out to them by institutional personnel.

It appears from the evidence that the floor surface of the corridor was of terrazza, and the stairway surface was a non-skid composition material of carborundum and marble chips. The stairway and corridor were smooth and well lighted. No complaint is made with respect to the construction of the stair or corridor.

Claimant contends in her brief and argument that she has proven her case within the rule announced in Dixon vs. Hart, 344 Ill. App. 432, and followed by this Court in Opal Fox vs. State of Illinois, 21 C.C.R. 12.

We do not agree.

Even considering her evidence alone in its most favorable aspects, we find no indication that the condition complained of was unknown to her, or that she came upon it unexpectedly, or that the floor surface itself was uneven. On the contrary, claimant and her companions all testified that, from the outset, they were well apprised of the condition of the floor and the stair, and further testified that they commented to one another several times concerning it. The authority relied upon by claimant involved a hidden unexpected condition. In the Fox case, supra, an uneven floor with dents, ridges and wavy contour was shown to exist. Both of the cited cases recognized the general rule followed in Illinois, as set forth in Mack vs. Womans’ Club of Aurora, 303 Ill. App. 217. There the court aptly stated: “The waxing of floors of this character is a common practice, and too well-known to be considered negligent in the absence of evidence tending to prove some positive negligent act or omission on the part of the owner of the premises, which contributed to the injury.....We do not consider it was negligence per se for appellant to have the clnhroom floor cleaned and waxed, nor that such act served to charge appellant with the duty of anticipating that one in the exercise of ordinary care would be exposed to danger when using the floor in a manner for which it was intended. ’ ’

The court further held that, where there was no hidden danger, a person must be held to have assumed the risk involved of walking upon the waxed floor.

In the case of Dixon vs. Hart, 344 Ill. App. 432, relied upon by claimant, the court reversed a judgment for plaintiff in a similar case, and stated at page 437: “Does testimony that a floor was ‘polished’ or ‘slick’ without more, as was shown by plaintiff in this case, establish that defendant was negligent in his choice or application of a floor dressing, or that the floor was dangerous for use by the public? We think not. Such descriptions are hopelessly lacking in precision of meaning. What is ‘slippery’ to one person might not be ‘slippery’ to others. And what is ‘slick’ to a person wearing one type of shoe might not seem ‘slick’ to him if wearing another kind of shoe. We do not feel that such testimony furnishes the jury with any real evidence of a probative value in weighing the defendant’s conduct against the care required of him by the law governing such cases. ......Extrinsic evidence of a character more clear and convincing than plaintiff’s completely subjective verbal characterization of the floor as ‘slick’ must be shown before a jury could fairly and intelligently weigh the owner’s conduct in the care of his floors and its causal relationship to plaintiff’s fall.”

To the same effect see the cases of Custer vs. St. Clair Country Club, 349 Ill. App. 316; and Turner vs. Chicago Housing Authority, 11 Ill. App. (2d) 160 at 170.

We believe the above stated rules.to be sound, and will adhere to them. Consequently, the evidence offered by claimant does not, in our judgment, establish a dangerous condition resulting from negligent acts or omissions on the part of respondent within the meaning of the law of Illinois.

There are also two other elements lacking, which in themselves would also preclude a recovery. First, the record is barren of any evidence that respondent had either actual or constructive notice of the alleged condition. Second, if the floor and stair were as slippery as claimant contended, and particularly in view of her testimony that she knew of its condition, and yet did not use the stair bannister in starting her descent, then, in our judgment, she was not in the exercise of due care and caution for her own safety.

Since the burden of proving each of the above elements rests upon claimant, she has failed to prove her case in those respects.

In addition to the above, however, the evidence offered by respondent conflicts quite materially with that of claimant on the question of the floor and stair condition. According to respondent, the floor and stair had never been waxed. Obviously, either the respondent’s witness or claimant’s witnesses were mistaken. After considering at length the record in this case, we cannot say, in our fact finding capacity, that the evidence of claimant impresses us to the extent of establishing a preponderance over that offered by respondent on this material element of the case.

For all of the above reasons, we have concluded that this claim should be, and is hereby denied.


text:
    (No. 4610
    Lillian Stanley, Administrator of the Estate of Joe Stanley, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    R. W. Harris and Wyatt A. Lindsey, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 25,1954, Lillian Stanley, Administrator of the Estate of Joe Stanley, deceased, filed her complaint for the wrongful death of claimant’s intestate.

The record consists of the following:

1. Complaint.
2. Departmental Report.
3. Transcript of evidence.
4. Abstract of evidence.
5. Statement, brief and argument of claimant.
6. Statement, brief and argument of respondent.

The case was argued orally on November 13, 1956, at which time the parties stipulated that HawkeyeSecurity Insurance Company had reimbursed claimant for the loss of an automobile in the amount of $1,172.50, and was entitled to' reimbursement, if an award was made.

The facts of the case are as follows:

On December 4, 1953, the State Highway Department was engaged in repairing State Route No. 146 by removing sections of the pavement, and replacing them with freshly poured concrete patches. A sketch of the area discloses that three miles to the west of the scene of the accident appropriate warning signs and flares were in place to advise the traveling public of road repair work. Progressing toward the east and the scene of the accident were additional signs and flares.

At the crest of a hill, 330 feet from the scene of the accident, was a “Barricade Ahead” sign, which was lighted by a flare. The scene of the accident consisted of a 6 foot by 8 foot area of freshly poured concrete. All of the witnesses testified that this area was not protected by flares.

As to the existence or non-existence of a barricade, the evidence is in dispute.

Robert Hadsell, a foreman on the job, testified that a barricade was put up when the patch was broken out, but the barricade was removed when the ready-mix truck dumped the concrete. He and the rest of the crew had moved west at the time of the accident, and could not testify that the barricade was actually in place at the time of the accident.

Three eye witnesses, who were driving behind the Stanley car, and saw the accident, testified positively that there were no flares or barricades in place at the time of the accident.

With reference to the accident itself, the evidence discloses that Joe Stanley was driving a Chevrolet car in an easterly direction on Route No. 146. According to the witnesses he was traveling between 45 and 50 miles per hour when the right wheels of his car hit a freshly poured concrete patch, which caused his car to go out of control, and resulted in his death.

The accident occurred between 4:30 and 5:00 P.M. The sun had set, and cars were using their head lights.

A witness for respondent testified that a departmental rule required that flares be set out before 4:00 P.M. Notwithstanding this departmental rule, the flare trucks drove past the area in question around 4:30 P.M., but did not stop to put out flares.

From this evidence, the Court finds, as a question of fact, that respondent failed to provide flares and barricades to warn the public of the freshly poured concrete patch. It necessarily follows that such failure constituted negligence on the part of the state.

Respondent urges, as an additional defense, that claimant failed to exercise due care for his own safety, and argues that the series of signs and flares should have put him on notice that other repairs were being made in the area.

This Court has on many occasions held that the state is not an insurer against all accidents upon its highways.

Grant vs. State of Illinois, 21 C.C.R. 563.
Gray vs. State of Illinois, 21 C.C.R. 521.
Beenes vs. State of Illinois, 21 C.C.R. 83.

We have also followed the common law rule that a claimant must exercise due care for his own safety.

Perry vs. State of Illinois, 21 C.C.R. 311.
Bodie vs. State of Illinois, 21 C.C.R. 386.

The evidence discloses that claimant’s intestate was driving between 45 and 50 miles per hour. For a distance of three miles the state had set up barricades and flares to warn him of danger.

If it appears from the evidence that he was driving in a reasonable and proper manner, so that he was free from contributory negligence, we believe that he had a right to assume that the road was in a reasonably safe condition, in the absence of further flares and barricades.

We further believe that, when the state opens up a highway for repair purposes, it is duty bound to adequately warn the public of the danger, which it has created, as this is a man-made condition of danger, as distinguished from one created by the elements, such as a “heat blow-up”.

In the case of Barfee vs. State of Illinois, 19 C.C.R. 86, an almost identical fact situation was before the Court. Claimant was driving on U. S. Highway No. 50 at 5:45 P.M., and drove into a pavement excavation, which was not protected by flares. The Court found the state guilty of negligence for failure to set out flares, and made an award to claimant.

The Court, therefore, concludes in the case at bar that the state was guilty of negligence, and that claimant’s intestate was free from contributory negligence.

An award is, therefore, made to Hawkeye-Security Insurance Company in the sum of $1,172.50 to reimburse it for the loss paid to claimant.

An award in the amount of $7,500.00 is hereby made to claimant.


author: Fearer, J.

text:
    (No. 4614
    Guy A. Thompson, Trustee of Missouri Pacific Railroad Company, Debtor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    Walker and Williams, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claim was filed in this Court on behalf of Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, on March 23, 1954.

The record consists of the following:

Complaint.
Motions for extensions of time in regard to filing pleadings.
Departmental Report.
Transcript of evidence.
Statement, brief and argument of claimant.
Statement, brief and argument of respondent.
Commissioner’s Report.

It is a claim for demurrage charges for coal delivered to the Illinois State Penitentiary at Menard, Illinois. The dates involved are between September 19, 1952 and October 6, 1952, when various and sundry cars of coal were delivered to the penitentiary. The cars were kept in the custody of respondent, and on the tracks of said penitentiary on the various dates set forth in the complaint. The dates the cars were placed on the tracks, unloaded, and made available for removal were also set forth.

The tariff charges for intrastate shipments, published and in full force and effect at the various times mentioned, are set forth in exhibit A, attached to the complaint and made a part thereof. The authorized demurrage charges were also set forth for each particular car, the total amounting to $342.00, which is not disputed by respondent.

It is not disputed, and so found by the Commissioner, that the delay in the unloading of the cars was caused by a riot of the inmates at the penitentiary on September 22, 23, 24 and 25.

The present warden at the penitentiary was not the warden at the time the demurrage charges were incurred, and the bills for demurrage were not transmited to him prior to September 30, 1953, when funds for the 67th G-eneral Assembly lapsed, which is the reason they were not paid.

As found by the Commissioner, there is very little dispute as to the facts. There is no question but what the cars were spotted on the tracks in the penitentiary on the dates set forth in the complaint. There was a riot in the penitentiary during said period of time, and the cars were not unloaded due to the riot on the dates set forth in the complaint, and hereinabove referred to. The charges made for demurrage were proper, and were on file with the Illinois Commerce Commission. The computations were correct, and proper charges were made in accordance with the exhibits attached to the complaint and made a part thereof. Furthermore, respondent does not dispute the correctness of the charges, but only questions the liability of respondent due to the fact that the delay in unloading', which caused the demurrage, was due to the riot, which was beyond the control of the agents of respondent.

The Commissioner submitted the matter to this Court, because there was a question of law to be decided, and made no findings in regard thereto.

Bespondent cites the case of Illinois Central Railroad Co. vs. State, 18 C.C.R. 214, where the proposition that a contract for the payment of demurrage eharg*es with the state is null and void unless expressly authorized by law. There is no question in our mind but what the demurrage charges, as set forth in the complaint, were authorized by law, and are correct charges.

In the second point of its brief, respondent calls attention to the following cases:

Southern Railway Co. vs. White, 284 F. 560.
Chesapeake & Ohio Railway Co. vs. Board, 100 W. Va. 222; 130 S. E. 525; 44 A.L.R. 826.

These eases fall under the proposition that the obligation to pay demurrage is imposed by law, and payment is excused when the delay is caused by the intervention of a “vis major”, such as an insurrection.

Respondent in its argument states that it does not deny the loaded cars were delivered to the penitentiary; that the demurrage charges were in effect in the tariff on file with the Illinois Commerce Commission, and that the computation of the charges made by claimant is correct, since each car was identified, and the period of delay established by competent evidence introduced by claimant. Respondent also admits that the demurrage charges have not been paid.

It is further set forth that the only question remaining to be decided in this case is whether or not, under the law in force and the facts established by the record, the demurrage charges are legally due.

The question remains in respondent’s mind as to whether or not the riot or the intervention of “vis major” excuses the payment of demurrage, and cites the case of Chesapeake and Ohio Railway Company vs. Board, 100 W. Va. 222. In this case it was held that the payment of demurrage was excused, and the court said:

“The same general principles, which the federal court found applicable in the White Case, apply to the one now before us. True, in that case the relief was granted because of an act of God, and here the relief is sought because of the act of man. We see no reason, however, to distinguish in this case between a storm of wind, lightning, and rain, and a storm of human passions. We find no cause to differentiate here between a flood of water and a flood of men. This ‘armed march’ was a human tide, before which the defendants were as helpless as before elemental storm and flood.”

Claimant in his brief argues that a railroad is given no choice but to exact the payment of all charges properly accruing under its tariffs, as filed and approved by the Commerce Commission, and this rule applies to demurrage charges. It cites the case of Davis vs. Keystone Steel and Wire Co., 317 Ill. 278, in which case the court said:

“Since the demurrage was a proper terminal charge for which the appellant was liable as a part of the transportation of the cars, it was payable by the appellant in accordance with the demurrage rules — and it was the duty of the appellee to collect it unless the existence of the strike excused the payment. The mies make some exceptions to demurrage charges, such as in the case of certain weather conditions, delay or irregularity of the carrier in delivery, resulting in the bunching of cars, errors in notice or other railroad errors, none of which apply to the circumstances of this case, but no mention is made of failure to load or unload because of a strike. . . . The duty to unload is, therefore, absolute in the absence of the expressed exceptions."

The case cited was decided at a time when the tariffs contained no provision in relation to strikes, and it stands for the proposition that, unless the excuse for payment can be found within the exceptions contained in the tariff, the duty to pay is absolute.

There is a vast difference betwen a struck plant and a riot of the inmates of a penitentiary, as the inmates are not employees of respondent. The act of employees striking is a legal one, whereas the riot of the inmates in a penitentiary is an unlawful act. If it had been the intention to excuse the payment of demurrage in the case of riots, such an exception should have been placed in the tariff.

It is also found that, except for the eight cars, which were located within the plant during the riot, the remainder of the cars arriving were placed on the penitentiary’s private tracks where they could have been unloaded by employees at the penitentiary, so that no demurrage would have accrued on such cars. The biggest delay, which resulted in the bulk of the accrued demur-rage, arose not because of the riot, which lasted from September 22 to September 25, but because of the delay, in getting back to work after the riot had subsided.

In Words and Phrases, volume 44, page 314, we find “vis major” being defined in many ways, and it appears throughout that it is not applicable to the case in question. In the majority of the cases, it was defined as something, which results immediately from an actual cause without the intervention of man, and could neither have-been prevented by the exercise of prudence, diligence and care, nor the use of those appliances, which the situation of the party renders it reasonable that he should employ. Story defines “vis major” to be any irresistible natural cause, which cannot be guarded against -by the ordinary exertions of human skill and prudence.

It is, therefore, the opinion of this Court that an award should be made for demurrage charges to claimant in the sum of $342.00.


text:
    (No. 4618
    Lawrence B. Stedman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.
    Hollerich and Hurley, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Wham, J.

This action is brought by claimant, Lawrence B. Stedman, against respondent, State of Illinois, to recover $7,500.00 in damages for personal injuries sustained when he fell into a canyon located in Starved Bock State Park on September 11, 1952.

The record reflects that claimant was rightfully upon the premises, having rented one of the cabins constructed by respondent in the park, which, in conjunction with the lodge and dining room, were operated for the benefit of those who wished to visit the park and remain overnight. The facilities were located in Starved Bock Park on high ground overlooking the Fox Biver valley, and consequently bounded by and in the midst of rough terrain and canyons.

The park itself, of which these facilities were a part, consists of several hundred acres of land preserved in its rugged natural state as a scenic and historical attraction, and is maintained for the benefit of and use by the people of Illinois.

Claimant was employed by the Rueben H. Donnelly Corporation of Chicago, Illinois as District Sales Manager, and was, on the date in question, working in the vicinity of Utica, Illinois, in connection with the preparation of a classified section of the telephone directory. Several other employees were under his direction, and, in the course of his employment, he had arranged to remain overnight at Starved Bock Park and meet with the employees whom he was directing. •

About noontime on September 11, claimant registered at the lodge, was assigned and went to one of the cabins located a short distance from the lodge, met several of his fellow employees, and returned to the lodge dining room for lunch. Thereafter, he went about his business in Utica, returned to his cabin at 5:30 P. M., and again met with his fellow employees in the dining-room at the lodge for dinner. After finishing the meal, it was the intention of claimant and his companions to hold a sales meeting in claimant’s cabin.

At approximately 8:00 P. M.,' the group, including claimant, left the dining room of the lodge, and went out upon the patio adjoining the dining room upon the north. This patio overlooked a precipice or canyon approximately fifty feet deep.

After a few minutes of conversation, the group started toward the cabin in an easterly direction along a pathway bordering the edge of the precipice. This path was approximately fifteen feet from the edge of the canyon.

After proceeding along the path for some distance, and upon reaching a vantage point, which presented a clear view of the dam and the city lights of Utica and Ottawa in the distance, claimant and two of his companions, a Mr. Art Houser and Miss Alta Vick, left the pathway, and moved to the edge of the canyon, where claimant proceeded to point out to them the various sites. Suddenly he slipped over the edge of the precipice into the canyon, and sustained severe and permanent injuries to his person, consisting of fractures of a vertebrae and ribs, and numerous cuts, bruises and lacerations to various parts of his body.

Claimant contends that respondent was negligent in several particulars, namely, failing to place proper signs or notices warning patrons of the precipice; failing to erect barriers or guard rails at or near the edge of the precipice to prevent persons from falling over it; and failing to provide lighting so that persons could see the edge of the precipice at night.

While it is true that respondent is under the duty to exercise reasonable care in maintaining its parks, it is likewise the law that respondent is not an insurer against accidents occurring to patrons while using the park facilities. Kamin vs. State of Ill., 21 C.C.R. 467.

The fundamental question here to he determined is whether or not respondent was under the duty to provide warning signs, guard rails and lights at the particular place where claimant fell. The significant factor to us is that claimant intentionally left a path, which was at least 15 feet from the edge of the precipice. If he had remained upon the path, he obviously would not have been injured. Ho complaint is made with reference to the surface of the path, nor with respect to its location.

We do not believe that respondent should be required to anticipate that patrons of the park would be more likely to leave the path in the night time at this particular place, than in any one of the innumerable places along the brinks of the many canyons throughout the park. To require the maintenance of signs, rails, and lights along the many miles of pathways would place a burden upon respondent, which no reasonable man would require.

The fact that this path provided access to the cabins from the lodge, and would, therefore, be more heavily traveled than paths in other portions of the park is not of great significance. Actually, there would, if anything, be less reason to expect a person to depart from this path while on the way to his cabin, than if walking in a more secluded portion of the park where the principal usage of the path is for hiking.

Adult patrons of Starved Rock Park certainly know the character of the park’s terrain, and respondent is entitled to take that into consideration in determining when, where and how safeguards and warnings should be installed.

In addition thereto, it is onr judgment that the lack of guard rails, signs and lights was not the proximate cause of claimant’s injury, but was merely a condition, which rendered possible the happening of the accident.

The proximate cause in our judgment was the intentional departure from the path by claimant in the night time having reason to believe that the path was near the precipice, even though not knowing the exact distance therefrom. He knew there were no lights, and he was not entitled to presume that a guard rail was in place. He testified that he had walked to the cabins at 5:30 P. M. on the day of the accident. He went from the cabin to the lodge dining room at about 7:00 P. M. on the same evening. Moreover, he had arrived at the lodge, and checked in at his cabin at noon of the same day, and he evidently had sufficient knowledge of the surroundings to point out to his companions the places of interest in the distance.

We cannot bring ourselves to believe that claimant had no general knowledge of the terrain bordering the path from the lodge to the cabin, from which path he intentionally departed. Consequently, we feel that he did not exercise that degree of care and caution for his own safety, which is required of a prudent person, and that his actions of leaving the path in the night time, and under the above recited circumstances, were the proximate cause of his injuries.

We, therefore, believe that his claim should not be allowed. To hold otherwise would, in our judgment, be a departure from the recognized principles governing actions of this nature, would place an unwarranted burden approaching that of an insurer upon the State of Illlinois, and would, in effect, ignore the requirement that a claimant must, in order to recover, be in the exercise of due care and caution for his own safety. The claim is hereby denied.


text:
    (No. 4642
    W. Gordon Garretson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    Sorling, Catron and Hardin, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On September 10, 1954, claimant, W. Gordon Garretson, filed his complaint seeking to recover the sum of $642.24, the same being the balance alleged to be due him for architectural services from the State of Illinois.

The record consists of the following:

Complaint.
Amended answer.
Reply of claimant.
Departmental Report.
Transcript of evidence.
Statement, brief and argument of claimant.
Brief and argument of respondent.
Reply brief of claimant.

The facts of the case are as follows:

On February 5,1946, claimant entered into a contract with the Department of Public Works and Buildings of the State of Illinois for architectural services for the construction of a combined shop, garage and office building at Joliet, Illinois. Claimant prepared drawings and specifications, and, in addition, was to furnish supervisory service. Claimant was paid a substantial portion of his fee, but alleges in his complaint that a balance of $642.24 is still due.

There is no question as to the work having been completed, or the validity of the charges. The sole question is whether or not his final bill was barred by the statute of limitations.

Respondent argues that the appropriation lapsed before the claim was made, and is, therefore, barred by the statute of limitations.

Claimant replies that his contract for supervisory services was a continuing one, and, until such time as he was formally advised by the Department that the building was accepted, and, therefore, nothing more required of him, he held himself in readiness to furnish such additional supervision as may have been required.

At the time of the hearing, the architect for the Department of Public Works and Buildings was no longer an employee of the State of Illinois, and was not available to testify in this case. As a result, the evidence does not disclose with certainty when the building was completed and accepted by the state, so that a time certain could be established from which the statute of limitations would begin to run.

A Departmental Report, dated October 25, 1954, signed by E. A. Rosenstone, Director of the Department of Public Works and Buildings, contains the following paragraph:

“The Division of Architecture and Engineering has no records to indicate that a requisition was furnished to them for this fee. However, it has been established that the services were performed, and that Mr. Garretson is entitled to the amount of $642.24 from the State of Illinois.”

Bule No. 16 of- the Court of Claims is as follows:

“All records and files maintained in the regular course of business by any State Department, commission, board or agency of respondent, the State of Illinois or the) Board of Trustees of the University of Illinois, and divisions and agencies under the control of such Board of Trustees, and all departmental reports made by any officer thereof relating to any matter or case pending before the Court shall be prima facie evidence of the facts set forth therein; provided, a copy thereof shall have been first duly mailed or delivered by the Attorney General or the Legal Counsel of the Board of Trustees of the University of Illinois to the claimant, or his attorney of record.”

It is well settled law that the statute of limitations is an affirmative defense, and the burden of proving it rests upon the party pleading it.

Burnett vs. West Madison State Bank, 375 Ill. 402, 31 N.E. (2d) 776.
Hood vs. Commonwealth Trust & Savings Bank, 376 Ill. 413, 34 N.E. (2d) 414.
Jones vs. Katz, 325 Ill. App. 65.

Respondent has not shown by a preponderance of the evidence that the claim was barred by the statute. In fact, the Departmental Report, under rule No. 16 of the Court Claims Act, establishes a prima facie case in favor of claimant.

An award is, therefore, made to claimant in the amount of $642.24.


text:
    (No. 4650
    George Schneider, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.
    Michael F. Ryan, Attorney for Claimant.
    Latham Castle, Attorney General; Thomas G. Cronin, Assistant Attorney General, for Respondent.
   Fearer, J.

George Schneider filed a complaint in this Court, in which he seeks an award of $10,338.29 for back salary as a Communicable Diseases Investigator I in the classified service for the Department of Public Health of the State of Illinois. The amount asked represents salary due and owing him for the period from April 1, 1951 to December 22, 1953, being from the date he was illegally prevented from performing his duties as a Civil Service Communicable Diseases Investigator I in the Department to the date of the judgment order directing his reinstatement to said position at the rates provided for said position, as set forth in the bill of particulars attached to said complaint.

In addition to the complaint and transcripts of evidence, the record consists of the following:

Answer.
Amended answer of respondent.
Departmental Report.
Motion of respondent for an order requiring claimant to answer under oath certain interrogatories.
Order of the Chief Justice that claimant answer under oath certain written interrogatories propounded by respondent.
Answer of claimant to certain written interrogatories of respondent.
Motion of claimant to strike Departmental Report.
Order of the Chief Justice denying motion of claimant to strike the Departmental Report.
Claimant’s exhibits Nos. 1 to 7.
Respondent’s exhibit No. 1.
Brief and argument of claimant.
Brief and argument of respondent.
Reply brief of claimant.

George Schneider, after taking and passing a Civil Service examination, was certified and appointed as a Communicable Diseases Investigator I for the Department of Public Health of the State of Illinois on November 2, 1943 with “war tenure” status. His employment was terminated on April 14, 1949 by reason of the abolishment of the position due to the fact that the work load was insufficient to continue the independent position. This appears in the Departmental Report.

On August 17, 1949, claimant requested the Civil Service Commission to place his name on the reinstatement list, and on August 19, 1949 the Commission complied with his request. On March 27, 1951, the President of the Civil Service Commission advised claimant that on February 2, 1951 the Commission had ordered his name stricken from the reinstatement list, as set forth in exhibit A, which is attached to the complaint and made a part thereof.

Upon refusal to return his name to the reinstatement list, claimant instituted a mandamus suit in the Superior Court of Cook County for the reinstatement of his name and for appointment to fill any vacancy existing in the position of Communicable Diseases Investigator, being entitled “People of the State of Illinois, ex rel George Schneider, vs. Maude Myers, Et Al, No. 51 S 19698’! Within a short time after the complaint was filed in the Superior Court of Cook County, the President of the Civil Service Commission advised claimant by letter that lie was entitled to have his name placed on the reinstatement list.

It is further alleged in the complaint that on May 27, 1953 claimant filed an amended and supplemental complaint for mandamus in the Superior Court hereinabove referred to, wherein it was asserted that he had discovered that a person, with less seniority than he, had been reinstated as a Communicable Diseases Investigator on or about April 1, 1951, and demanded reinstatement to his position with back salary. (Claimant’s exhibit No. 1.)

The defendants in said litigation, the Director of Public Health, members of the Civil Service Commission, Auditor of Public Accounts and State Treasurer, all represented by the Attorney General, filed a motion to dismiss the amended and supplemental complaint. (Claimant’s exhibit No. 3.) The motion to dismiss was denied by the Superior Court. The defendants, having elected to abide by the motion, did admit the allegations of the amended and supplemental complaint for mandamus, and on December 22, 1953 a judgment order for the writ of mandamus commanding the reinstatement of the claimant to his position as a Communicable Diseases Investigator was entered by the Hon. Donald McKinlay, Judge of the Superior Court of Cook County. (Claimant’s exhibit No. 5.)

Prior to the entry of the judgment, claimant amended his complaint, and eliminated the claim for back salary due to the lapse of the biennial appropriation. (Claimant’s exhibit No. 2.) A judgment order was entered without prejudice to claimant’s back salary rights. Pursuant to this judgment order, claimant was reinstated to his position, and has been receiving the salary therefor at the rate of $319.00 per month since. December 22, 1953.

The records of the Department filed in this cause show that one Elmer Bay Longenbaeh was laid off in 1949, and reinstated as a Communicable Diseases Investigator on March 15, 1951.

In the motion filed to the complaint for mandamus in the Superior Court of Cook County, it is alleged that Mr. Longenbaeh, who was a party to the suit, had less seniority than claimant, and that claimant was entitled to reinstatement in preference to him. It was further admitted in the record, by reason of the motion filed by respondent, wherein all matters well pleaded were admitted, that Longenbaeh was working on the date of claimant’s reinstatement on December 22, 1953, and continued to work along with claimant since that time as a • Communicable Diseases Investigator.

At the hearing before Commissioner Presbrey, it was shown that the salary attached to claimant’s position was $270.00 a month for the biennial period from July, 1949 to July, 1951; from July 1, 1951 to July 1, 1952 it was $297.00 per month; for the period of July 1, 1952 to January 1, 1953 the salary was $309.00 per month; and that for the period of January 1, 1953 to December 22, 1953 the salary was $319.00 per month.

Bespondent, at the time of the trial, did not offer any evidence, but merely offered in evidence its exhibit No. 1, a Departmental Beport, to which there have been filed certain objections. By the order entered by this Court, these objections were overruled with a recitation in said order that only such matters, which the Court believed to be competent evidence, if testified to by a member of the Department, would be considered in the determination of this case.

By way of argument respondent contends, first, that the record does not disclose that claimant took and passed a Civil Service examination for his appointment and certification as a Communicable Diseases Investigator with “war tenure” status, although there is no. dispute on the fact, that claimant did hold the position on “war tenure” status.

The state further disputes the fact that Elmer Bay Longenbach had less seniority than claimant.

Further, by the operation of law, claimant lost the seniority he had to Elmer Bay Longenbach during the period of time for which claimant is seeking back salary, and that Longenbach had, in fact, greater seniority than claimant.

It is further argued that George Schneider was given a war certification on November 2, 1943 for the position of Communicable Diseases Investigator; and, that he occupied that position until April 14,1949, at which time the position was abolished, and claimant’s employment was terminated.

The war certification provided that the tenure of all Civil Service appointments made during the war emergency shall terminate upon the establishment of appropriate eligible lists derived from competitive examinations to be held as soon as practicable after the termination of the unlimited national emergency.

In 1949, Senate Bill No. 300 was passed by the General Assembly, and later was approved by Governor Stevenson on August 1, 1949. The bill amended the Civil Service Act, and eliminated reference'to war duration certificates. The meaning of the bill was clear, in that persons, who had only war duration certification, and whose services were terminated before August 1, 19.49, were not entitled to reinstatement with permanent certified status. Elmer Bay Longenbach was laid off on October 31, 1945, and had thereby gained eligibility for permanent certification by virtue of Senate Bill No. 300,

effective August 1, 1949. His name, therefore, was on a reinstatement list, and when reinstated was given permanent certification on March 15, 1951. Claimant’s position was terminated on April 14, 1949. Therefore, he was never on a permanent certified status. Since claimant was not employed by the state on August 1, 1949, he could not be placed on a permanent certified status. The only way this could be accomplished was for him to take and pass an examination conducted by the Civil Service Commission.

Plaintiff’s contention that he had seniority to Longenbach is without merit, because Longenbach was not laid off until October 31,1949, three months after he had been placed on a permanent certified status.

Claimant testified he was certified to and appointed to his position on November 2, 1943. Under the law it is impossible to be certified and appointed until one first passes a Civil Service examination. The Departmental Report filed by respondent, and admitted as part of the evidence in this case, being that part of the Report which; this Court believes to be competent, admits that claimant was certified on November 2, 1943. In the Departmental Report, a letter from Robert L. Hunter, then President of the Hlinois Civil Service Commission, to the effect that claimant’s name was on the eligible register for Communicable Diseases Investigators appears.

In claimant’s exhibits, being pleadings filed in the Superior Court of Cook County in the mandamus suit, it was alleged that claimant took and passed a Civil Service examination for his position. By the motion filed, the truth of the allegations of the complaint were admitted, and in the order entered by the Superior Court, wherein claimant was reinstated, certain findings were made, all of which are binding upon respondent.

The question as to back salary was eliminated by the amendment to the amended and supplemental complaint for mandamus, for the reason that the appropriation had lapsed, which would prevent the court from entering a writ to compel the defendant to pay the back salary.

This Court has previously held that, where a Civil Service employee is illegally prevented from performing his duties, and is subsequently reinstated to his position by a court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his illegal removal.

Poynter vs. State of Illinois, 21 C.C.R. 393.
Smith vs. State of Illinois, 20 C.C.R. 202.
People vs. Thompson, 316 Ill. 11.

We camiot agree with respondent’s contentions and matters set forth by way of defense to claimant’s claim for back wages, except that any earnings of claimant during the period of time when he ws illegally prevented from performing services for respondent shall be a set-off against any award that might be made, which was this Court’s ruling in the case of Poynter vs. State of Illinois, 21 C.C.R. 393, and also in the case of Kelly vs. Chicago Park District, 409 Ill. 91.

It is our contention that respondent had an opportunity of defending the question of seniority, and all rights pertaining to claimant’s position as to whether or not he was illegally discharged, and all questions, except the questions of back salary, in the mandamus suit. As to these matters, which are determining factors in arriving at a decision in this case, they are res judicata, and cannot be raised in this suit by way of defense. These issues have already been decided in favor of claimant.

In regard to the amount of the award, this is of considerable concern to this Court. Interrogatories were served upon claimant by respondent covering primarily his earnings during the period of time when he was illegally prevented from performing services for respondent.

There was filed in this Court an answer to the interrogatories to the effect that, for the period from April 1, 1951 to July 1, 1951, claimant was engaged in the tavern business with his wife, Anna B. Schneider, as co-owner. During that period of time he was not employed by anyone, since he was engaged in the tavern business, and during the same period of time he received no daily, weekly or monthly wages; that for the year-1951 the net profits from said business were $480.78, which further appears from the statement of profit and loss for the year ending December 31,1951, prepared by his auditor, Frank Rosulek. Claimant sets forth in the answer to the interrogatories filed covering the period from July 1, to December 1, 1953 that he was still engaged in the tavern business with his wife, and that he had no other employment during that time. To the interrogatories in regard to his daily, weekly or monthly wages, he answered that he received no daily, weekly or monthly wages. The net profits for said business for the year 1952 were $972.67, and for the year 1953 said business showed a loss of $509.25. A statement of profit and loss for the year ending December 31, 1952, which was made by the same auditor, showed a net profit of $972.67. A statement of profit and loss for the period of January 1, 1953 to November 6, 1953, prepared by the same auditor, reflected a loss of $509.25.

Claimant further answered the interrogatories in regard to employment, either temporary or permanent, during the period of December 1, 1953 to and including December 22,1953, to the effect that he was not employed between those dates. During that period he stated he was unemployed, and did not receive wages or salary of any kind. He contended the answers to the above questions represented his employment and all wages earned by him from April 1,1951 to and including December 22,1953.

On the 26th day of October 1956, pursuant to a notice given by this Court, claimant and his counsel appeared to answer certain questions under oath in regard to his earnings during the period of time that he was not employed by the State of Illinois, and not receiving wages from the state. Certain other questions were asked of him in regard to his testimony at the time of the trial, his answers to the interrogatories, and also the statements filed by him, which were prepared by his auditor. One such item is an item of expense, which covers wages paid to claimant’s daughter, and is as follows:

In the statement of profit and loss ending December 31, 1951 there appears to be wages paid of $1,032.00; in the profit and loss statement ending December 31, 1952 wages of $1,048.00; and, in the statement between December 1, 1953 and November 6, 1953 wages of $864.00.

As we recall from claimant’s testimony, these wages were paid his wife’s daughter during a period of time when claimant was spending a small portion of his time at the tavern, which appears from his testimony at the time of the trial, and also from his testimony offered before this Court.

Claimant did not testify to any regular hours of employment at the tavern. He testified, and the record so reflects, that outside help was employed, and wages paid therefor, which seems to us to be unreasonable, due to the fact that the business for the three year period showed a very small profit. In fact, in one of the years there was a loss.

Furthermore, it apears to be unreasonable, under the circumstances, for claimant to sit idly by, and voluntarily make no effort to seek employment outside of the tavern business, or to devote more time to the tavern business, all of which would have been in mitigation of any award to be entered in this case.

Another matter, which was gone into at the time of the trial, and also at the time of the examination of claimant before this Court, was the question of claimant living out of the tavern during the entire period of time that he was unemployed. Claimant testified that he stayed and ate at the tavern during that period of time.

It is well settled in this state that a claimant must do all in his power to mitigate damages, and we do not feel that claimant has done what the law requires of him in mitigation, and, in that regard, sitting as a jury, we have the right to fix the damages, and make an award, which we believe would be fair to all concerned. We are, however, not bound by the bill of particulars, stipulation, or answer to interrogatories, and can arrive at a figure in addition to the deductions made for other earnings in the amount of $676.65.

It is, therefore, the order of this Court that claimant be awarded the sum of $4,759.51.


text:
    (No. 4674
    Benjamin M. Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    Irving W. Eiserman and Earl E. Friedlander, Attorneys for Claimant.
    Latham Castle, Attorney General; Thomas G. Cronin, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On April 18, 1955, claimant filed his complaint seeking damages in the amount of $7,500.00 for the alleged negligence of respondent in failing to maintain a public highway in LaGrange Highlands in a safe condition.

The record consists of the following:

1. Complaint.
2. Answer.
3. Departmental Report.
4. Transcript of evidence.
5. Brief and argument of claimant.

The facts of the case are as follows:

On July 31, 1954, claimant resided at 1720 W. 55th Street, LaGrange Highlands, Illinois. About 9:45 P.M., claimant was crossing 55th Street, and tripped over a steel rod, which was alongside of the road, and fractured his right wrist. Claimant was an engineer for Armour and Company, and had resided in the neighborhood about three years.

In June, 1953, because of the hot weather, the highway adjacent to 1712 55th Street expanded, which resulted in a ‘blow-up”, and allowed the steel rods on each side of the highway in front of 1712 to 1715 55th Street to protrude.

The Highway Department was notified, and the following day put up barriers. About two days later, the highway was filled in with asphalt, but the steel rods on each side of the highway, which are used as reinforcing rods, were allowed to remain in a raised condition. The neighborhood is dark, and has no street lights. Claimant could not pin point the exact location, but knew approximately where the upraised rods were to be found.

On the night in question, at about 9:30 P.M., claimant had gone across the street to visit a neighbor. It was a very dark night, and he crossed 55th Street safely. About fifteen minutes later, as he was returning to his home on what he thought was the same route he had previously traversed, his right leg caught in the steel rods, which were upraised, and he fell arms forward. As a result his right wrist was fractured, and his right arm was injured. His right arm was placed in a cast from the fingers to just below the right elbow. The cast was changed several times, but he was obliged to wear it for six or seven weeks. He was on vacation, which had just begun, so he had no actual loss of earnings. He returned to his employment, which, by that time, was in Omaha, Nebraska, but could only partially perform his work. While in Omaha, Nebraska, he saw the company doctor, who made no charge, but gave him diathermy treatments four times a week for about three or four months. Prior to July 31, 1954, his right hand had been in perfect condition, but since the accident he has experienced numbness and stiffness in his hand, any change of weather gives him a good deal of pain, and he has trouble with his grip. He expended $81.00 to Dr. D. J. Freriks; $25.00 to McNeil Memorial Hospital; $15.00 to Dr. J. L. Grout; and $6.63 for drugs.

There is little dispute as to the facts with the exception of the Departmental Reports, which indicate that the pavement ‘ ‘ blow-up ’ ’ occurred in July of 1954, rather than 1953.

However, witnesses living in the neighborhood testified that the “blow-up” occurred in June of 1953, and that the raised reinforcing rods had been quite a nuisance for more than a year, prior to the date of the accident. Commissioner Presbrey found in his report that the condition complained of had occurred in June of 1953.

This Court has held that the state is not an insurer against accidents occurring on highway.

Beenes vs. State of Illinois, 21 C.C.R. 83.
Terracino vs. State of Illinois, 21 C.C.R. 177.

However, in this case, respondent had actual knowledge of the condition of the pavement, as it had erected temporary barricades until the area had been- patched with a black top. The Departmental Report does not attempt to explain why the raised reinforcing rods were not removed, and the Court, therefore, finds that respondent was negligent in permitting this condition to remain for over a year.

Respondent urges that claimant was guilty of contributory negligence, as he admitted he knew of the rods for many months prior to the accident. A review of the evidence discloses that 55th Street was not lighted. The night in question was dark. Claimant had successfully crossed the highway at 9:30 P.M., and was returning home at 9:45 P.M. when the accident occurred.

In the case of City of Springfield vs. Coe, 69 Ill. App. 277, plaintiff was walking along a city street, which was being repaired. The accident occurred during the night time, and the street was not lighted. Plaintiff stepped into a hole, and broke her arm. A jury awarded her $2,000.00. The city sought to reverse the judgment on the ground of contributory negligence.

At page 280, the court said:

“The fact that though in possession of such knowledge she was not at the time thinking of the condition of the street did not necessarily bar recovery. Her admissions upon this point were proper for consideration, together with all the circumstances in proof, in arriving at a conclusion upon the ultimate question whether she used ordinary care and prudence.”

Kenneth Reister, a neighbor, testified that the reinforcing rod was directly in front of his driveway, and that, for months prior to the accident, he had tried to get the road commissioner to remove it. He further stated that he tried to remove it.

In reviewing the evidence, the Court finds that claimant used ordinary care for his own safety, and, therefore, finds claimant was free from contributory negligence.

An award is, therefore, made to claimant in the amount of $127.63 for medical and hospital expenses. Since there was no loss of wages from his employment, an additional award of $1,000.00 is made for pain and suffering.