author: Fearer, J. Fearer, J.

text:
    (No. 4635
    Theron A. Denton, as Administrator of the Estate of Stephen Denton, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1954.

      Petition of claimant for rehearing denied January 11, 1955.
    Frank E. Trobaugh and David A. Warford, Attorneys for Claimant.

      q Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

The complaint in this case was filed with the Clerk of the Court-of Claims on July 30, 1954 by the administrator of the estate of Stephen Denton, deceased. A motion was filed by respondent to dismiss the complaint on August 13, 1954, in which an attack was made on the jurisdiction of this Court to hear the claim.

This is a wrongful death action arising out of the death on August 6, 1953 of Stephen Denton, a minor, who was living with his parents, Theron A. Denton, the administrator, and his mother, Thelma Denton. At the time of the occurrence in question, Stephen Denton was residing with his parents in an apartment, which was owned by the Southern Illinois University, where Theron A. Denton was enrolled as a student on the date of the death of his son.

Claimant charges the agents, servants and employees of the Southern Illinois University with negligence in permitting children to play in vacant apartments in the buildings, which were provided for students and their families, wherein items such as ice boxes and other articles were left. On the day in question, Stephen Denton met his death by suffocation, when the door of an ice box in one of the vacant apartments closed upon him, while he was playing therein.

The jurisdiction of this Court is limited to claims set forth in Sec. 8 of the Court of Claims Act (Chap. 37, Par. 439.8, Ill. Rev. Stats., 1953). This Act covers claims against the State of Illinois, and in specified instances against The Board of Trustees of the University of Illinois.

The Board of Trustees of Southern Illinois University is, by statute, made a body politic and corporate for the purposes of operating, managing, controlling and maintaining the University (Chap. 122, Par. 435.1, Ill. Rev. Stats., 1953). This statute provides that the Board has the power to enter into contracts, and to sue and be sued. (Chap. 122, Par. 435.7, Ill. Rev. Stats., 1953).

This Court, in the case of B and F Hi-Line Construction Corporation vs. State, No. 4477, opinion filed February 8,1952, had occasion to pass upon the question of jurisdiction of this Court on a claim based upon a contract between claimant and The Board of Trustees of Southern Illinois University. We quote from a portion of said opinion:

“The Court is of the opinion that Tire Board of Trustees, being a corporate body, with the right of being sued, that a Court of general jurisdiction would be the place to bring such a suit, and for this reason this Court is without jurisdiction.”

A similar motion was filed in that case, which was sustained. The Court in its opinion held that The Board of Trustees of the University was a body politic and corporate, which could sue and be sued.

The jurisdiction of this Court to hear and determine claims predicated upon alleged negligence is contained in Section 8C of the Court of Claims Act. In an opinion filed on January 8, 1952, in the case of Patrick Davern, Jr., Etc. vs. State of Illinois, this Court held:

“This section can only apply where the state would be liable for a tort action. The section specifically gives a cause of action'against The Board of Trustees of the University of Illinois in tort cases. It does not extend to any other corporate entity.
*******
The state, under a constitutional provision, cannot be sued either at law or in equity, and it cannot by statute waive immunity. It can by appropriate action delegate to the Court of Claims jurisdiction to make awards on claims cognizable by it. This requires a definite action on the part of the state, and, having failed to extend the law to include Boards of Education, this Court is without jurisdiction to entertain such a claim.”

Therefore, the motion to dismiss the complaint filed herein is sustained, for the reason that this Court does not have jurisdiction of negligence cases of agents or employees of the Southern Illinois University, which is operated, managed and controlled by The Board of Trustees of Southern Illinois University, a body politic and corporate, which, by statute, can sue and be sued.

We are of the opinion that, inasmuch as the Court of Claims Act does not specify any Board or University, other than The Board of Trustees of- the University of Illinois, by exclusion this Court would not have jurisdiction to hear this claim.

Supplemental Opinion.

Fearer, J.

An opinion was filed on October 22, 1954 denying the claim of Theron A. Denton, Administrator of the Estate of Stephen Denton, Deceased. In said opinion this Court found that the agents charged with the negligence in the complaint were agents of the Southern Illinois University, and not the agents of the State of Illinois as contended by claimant.

A petition for rehearing was filed by claimant on November 19, 1954, in which our attention was called to the fact that claimant’s complaint charges negligence on the part of the agents, servants and employees of the State of Illinois. We were cognizant of this fact when our opinion denying the claim was written, and it was our finding that the agents, servants and employees referred to in the complaint, against whom such negligent acts were charged, were not agents of the State of Illinois but of the Southern Illinois University. We also concluded that this Court did not have jurisdiction to hear the case, as it did not come under Chap. 37, Sec. 439.8, Par. 8C. This Court has previously held that Par. 8C specifically is this Court’s jurisdiction to hear claims against the State of Illinois in cases sounding in tort, and claims sounding in tort against The Board of Trustees of the University of Illinois, but does not extend to any other corporate entity.

We further found that this Court did not have jurisdiction of negligence cases involving agents and employees of the Southern Illinois University, which is operated, managed, and controlled by The Board of Trustees of said University. We also found that it is a body politic and corporate, which by statute can sue and be sued.

The cases and statutes cited in claimant’s petition for rehearing pertaining to the State Civil Service Act-will not change the law, and hold that this Court has jurisdiction to hear tort actions of agents and employees of Southern Illinois University under Par. 8C, hereinabove referred to. Whether or not the agents and employees of the Southern Illinois University come under the Civil Service Act, and are considered employees of the state for that purpose, rather than employees of The Board of Education of Southern Illinois University, is an entirely different question.

In the case of Paula B. Engleman vs. State of Illinois, which was written and filed on January 19, 1927, the Court made an award for damages for injuries sustained by claimant when the bleachers collapsed, while claimant was attending a football game at the Southern Illinois Normal University. ' It will be noted that this case was decided before the amendment to the Act of 1945. Furthermore, the Court in that case held there was no legal.liability upon the part of the state.

The present Act referred to mentions The Board of Trustees of the University of Illinois, and, by omission, eliminates other State Universities.

After considering the arguments presented, the statutes and cases referred to, it is the opinion of this Court that the petition of claimant for rehearing should be, and is hereby denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4447
    Valley E. Gross, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 26, 1955.
    Joseph M. De Laurenti, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

This case was originally filed by claimant on January 18, 1951. On October 10, 1952, an opinion was filed, in which claimant was granted an award under Section 19b of the Workmen’s Compensation Act. (21 C.C.R. 337.) Included in said opinion was the following statement:

“All future payments being subject to the terms and provisions of the Workmen's Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.”

This case comes within the provisions of the Workmen’s Compensation Act of 1949, as amended.

On January 14, 1953, a petition for further compensation for the period of March 1, 1952 to the present date at the rate of $22.50 per week was filed, in which it was alleged that claimant had not returned to work, that it was impossible for him to return to work, and that the injuries received were totally disabling from the date of the injury, October 13, 1950, to the present time.

Since that time there have been two subsequent hearings. On February 17, 1953 the testimony of Dr. Edward L. Hediger was taken, and, on November 18, 1953 the testimony of Dr. Francis M. Barnes, Jr. was taken. Claimant also testified that he had not returned to work, and that he was still under the care of Dr. Edward L. Hediger. Both Doctors testified that claimant was totally and permanently disabled, and, in their opinion, would be unable to return to gainful employment.

The only question before this Court is whether or not at the present time claimant is permanently and totally disabled as the result of the accident, which occurred on October 13, 1950, while he was employed by the Department of Public Welfare of the State of Illinois. Such permanent and total disablement would entitle him to receive compensation payments from the date of the accident until the sum of $6,000.00 was paid, which would be the maximum allowance under the 1949 Act in the event of death, allowing respondent credit for all payments made, including nonproductive time, in accordance with the findings made by this Court in its opinion hereinabove referred to.

Since no further medical testimony, other than that of Drs. Edward L. Hediger and Francis M. Barnes, Jr., was presented to the Court, and the only additional testimony was that offered by claimant, we are of the opinion that claimant is entitled to an award for permanent and total disability, the maximum amount of which, under the 1949 Act, cannot exceed $6,000.00, and thereafter a pension for life.

It is, therefore, our finding that claimant is entitled to an award for permanent and total disability in the amount of $6,000.00. However, since claimant received the sum of $1,397.87 for non-productive time, and $215.68 for temporary disability, these amounts must be deducted from said award, leaving a balance due of $4,386.45 to be paid to claimant at his compensation rate of $22.50 per week.

Of this amount, the sum of $3,465.00 has accrued from February 28, 1952 to February 10, 1955, and is payable to claimant forthwith. The balance of $921.45 is payable to claimant in forty weekly installments of $22.50, beginning on February 17, 1955, with one final payment of $21.45. Thereafter, claimant is entitled to a pension for life of $480.00, payable in monthly installments of $40.00.

Dr. Edward L. Hediger rendered claimant professional services in the amount of $184.50, which appears to be the only unpaid medical bill, all previous medical bills apparently having been paid by respondent. An award is, therefore, made in favor of Dr. Edward L. Hediger for professional services in the amount of $184.50.

Henry P. Keefe was employed to take and transcribe the testimony in the hearings of this case, and charges in the total amount of $82.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Henry P. Keefe in the amount of $82.00, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act Concerning the Payment of Compensation Awards to State Employees”.


text:
    (No. 4395
    Glenn Larson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1955.
    J. P. Wilamoski and Young and Young, Attorneys for Claimant.

      Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

The petition in this case was filed in the Court of Claims on February 5, 1951. A hearing was had before the Commissioner on September 10, 1954 in the city of Kewanee, Illinois.

At the hearing, a stipulation was entered into between the parties, by their respective counsel, as follows: On December 18, 1948, claimant, Glenn Larson, was employed by the Division of Highways of the Department of Public Works and Buildings of the State of Illinois as a section man. His territory included parts of Route No. 34 in Henry and Bureau Counties, Illinois. On said day at the hour of 9:00 P.M., claimant was driving a snow plow dli that portion of the highway, which had been assigned to him for maintenance. The snow plow struck an obstruction, skidded across the highway, and overturned, catching his right leg under the truck. The truck and plow were the property of the Division of Highways of the State of Illinois, and were furnished to claimant to be used in his work.

It was stipulated that at the time of the accident claimant was earning, or receiving, a monthly salary of $203.00. The claim was brought under the provisions of the Illinois Workmen’s Compensation Act, which was in full force and effect as of the date of the accident. Respondent, the State of Illinois, elected to accept the provisions of said Act in effect at that time.

It was further stipulated and agreed that the injury, received by claimant upon said date, occurred during the course of, and arose out of his employment by respondent; and, that at said time he was 59 years of age, married, but had no children under sixteen years of age dependent upon him.

It was further stipulated and agreed that claimant was paid compensation for temporary total disability in terms of full salary and compensation at the rate of $19.50 a week from December 19, 1948 to and including March 11, 1950, a period of 64 weeks, making a total sum of $1,353.37; and that respondent has paid all hospital, medical and surgical expenses, totalling $5,609.87, for treatment and services rendered claimant on account of said injury.

. It was further stipulated that the only issue in the case to be decided at this time is the nature and extent of the injury to claimant, as the result of said accident, and that a final determination can be made at this time, by reason of the fact that the injury has reached stage of permanency.

This is one of the few “carry-over” cases, which had not been passed upon at the time the Act was amended removing compensation cases from the Court of Claims.

The only evidence that the Court has to pass upon, as to the extent of specific loss sustained, is the testimony of claimant. He stated that he was not suffering any further pain in his right leg, but that it was necessary for him to wear a specially constructed shoe, which was made by a firm specializing in orthopedic appliances. This was made necessary by reason of the fact that there was a shortening of 1% inches in his right leg, as a result of the accident.

The Commissioner, who heard this case, examined claimant’s right leg and the appliances therefor, and stated for the record that claimant was wearing a specially constructed black shoe, with a built-up heel, approximately 3 inches high, and with a sole, approximately % of an inch in thickness.

Claimant further testified that his right foot was deformed in the ankle and instep. At the time of the hearing his ankle was stiff, and there was also a depression on the inside of the ankle, which appeared to be the entire depth of the flesh. He stated that he experienced difficulty in walking; that it tired after he was on it for a period of time; that he used two canes to aid him in walking; and, that he could walk a short distance without the aid of canes.

Claimant further testified that he had made attempts to obtain employment, but had been unsuccessful, the reasons for which being his physical condition and age. On cross-examination, he further testified that he was not employed in any capacity, and that he had not worked since December 18, 1948. He further testified that the only injury, which he had received in the accident, was the fractured right ankle, and that he had had no previous injury to his ankle or leg.

The Commissioner made a further statement for the record to the effect that, upon his examination, he found a scar, approximately two inches in diameter, on the inside part of the right calf of claimant; that the right calf was markedly smaller than the left calf; and, that at the time of the hearing the right ankle was swollen.

Respondent offered the Report of the Division of Highways, dated July 9, 1954, which was admitted into evidence under Rule 16 of the Court of Claims. Objection was made by counsel for claimant to a letter, dated December 12, 1950, which was attached as an exhibit to the Report. It was written by Dr. Hugh Cooper, and contained an expression of his opinion as to the extent of the injury to claimant’s right leg. Objection was sustained as to the letter, in that it was for this Court to pass upon the question of permanent disability. We are of the opinion that the objection was well taken, and the Commissioner hearing the case should have sustained the objection to the exhibit.

In reading the Report and the exhibits attached thereto, there is no question but what claimant suffered a severe and permanent injury to his right leg, necessitating both medical and surgical treatment, which was quite extensive, as indicated by the medical reports • attached to the Report of the Division of Highways. The fractured area became ulcerated, and after long and careful treatment skin refused to form over said area, and two skin grafts were performed to remedy this condition.

The Commissioner, who heard this case, had an opportunity to examine claimant’s right leg and ankle. Being conversant in compensation matters of this nature, and by reason of his experience, he found that claimant suffered an eighty per cent disability, and recommended to this Court that an award be made for 152 weeks at a rate of $19.50 a week, which would make a total sum due of $2,964.00.

We are, therefore, of the opinion that, under the Workmen’s Compensation Act at the time the injury was incurred, claimant is entitled to an award in the sum of $2,964.00. The entire amount of the award has accrued, and is hereby ordered paid in full.

Lucille Redebaugh, 115½ W. Third Street, Kewanee, Illinois, was employed to take and transcribe the testimony in the hearing of this case, and charges in the total amount of $23.50 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Lucille Eedebaugh in the amount of $23.50.

This award is subject to the approval of the Governor, as provided' in Section 3 of “An Act Concerning the Payment of Compensation Awards to State Employees”.


author: Wham, J.

text:
    (No. 4553
    Bettie B. Bovey and Robert W. Bovey, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1955.

    Morey C. Pires, Attorney for Claimant.
    ■ Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Wham, J.

This is a case involving a claim against respondent, State of Illinois, by claimant, Bettie B. Bovey, in the amount of $7,500.00 for injuries to her person, and hospital and medical expenses incurred thereby, and by claimant, Robert W. Bovey, her husband, in the amount of $2,000.00 for past and future loss of Ms wife’s services.

The claim grew out of a headon collision between the Bovey automobile, driven in a northerly direction by claimant, Bettie B. Bovey, and an automobile driven in a southerly direction by one Lowell Zander. The collision occurred on the 22nd day of November, 1951, on a public bridge, owned and maintained by respondent, known as the Grand Detour Bridge, which spans the Rock River on Illinois State Bond Issue Route No. 2, approximately four miles northeast of Dixon, Illinois, and one half mile south of the Village of Grand Detour, Illinois.

It is claimant’s contention that the accident was caused by the dangerous condition of the bridge floor, which fact was known to respondent, and that respondent failed to properly warn members of the traveling public, including claimant, Bettie B. Bovey, of such condition. It is respondent’s contention that the accident resulted from contributory negligence on the part of claimant, and, further, that respondent was guilty of no negligence.

The facts of the case, as appearing from the testimony presented by both claimant and respondent, for the most part are uncontradieted, and are as follows:

Grand Detour bridge is approximately 996 feet long and 26 feet wide. It was constructed by the State of Illinois, and opened for public use in 1947. It slopes from south to north, and has a fall of approximately 6 feet. The surface of the bridge, at the time of the construction thereof, as well as the accident involved herein, consists of a steel grid floor assembled in sections. Each section was constructed of parallel steel plates one-quarter inch thick running lengthwise, and bisected by other steel plates running crosswise. This construction left rectangular openings in the floor of the bridge approximately two and one-half by one and five-eighths inches. The design and method of construction were of sound engineering practice, but there was an error in the fabrication of the sections of the steel grid floor at the manufacturing plant, so that, when the sections were assembled at the site of the bridge, there was a misalignment of the longitudinal plates at a point where one section joined the next section.

The approaches at either end of the bridge were paved with concrete. At the time of the accident, there were no speed limit signs, slow signs, or other signs at or near the bridge. The only sign in the immediate vicinity was a sign, 36 inches square, with black letters 6 inches high, on a yellow background, which stated “Bridge Slippery When Wet — Frosty”.

It appears from the evidence that the Division of Highways of the State of Illinois was advised by many complaints of members of the traveling public generally that an automobile crossing the bridge was subject to a weaving, side swaying motion by reason of the misaligned sections. In May of 1949, as a result of the complaints, the Division of Highways welded small buttons to the grid surface to prevent the slipperiness, and to eliminate the side swaying motion. It appears from the evidence that the buttons did not accomplish this purpose.

In regard to the extent of the side swaying motion imparted to vehicles, there is a conflict in the testimony. Mr. Merton M. Memler, Assistant District Engineer with the Division of Highways at the time of the accident, and now District Engineer, stated that he had never felt the swaying sensation himself. Mr. Ralph M. Ferguson, then District Engineer, testified he never experienced difficulty crossing the bridge.

Irrespective of this, however, the matter was discussed by Mr. Ferguson with his superiors in the Springfield office of the Division of Highways, both verbally and in writing, at different times during 1948, at which time it was determined that the buttons, heretofore mentioned, should be installed.

In addition to this, there were several independent witnesses, who testified on behalf of claimants in the instant case, that they themselves had observed the swaying motion; and one witness, a Mr. William Haefliger, testified that he had crossed the bridge many times, and that the weave and sway of the front wheels would be as much as two feet when various sections of the steel matted bridge were crossed. Another witness, Charles Brockwell, who crossed the bridge twice daily, stated that he always noticed the sway, and that on one occasion in September of 1951 his truck had completely reversed directions, because of the misalignment of the sections. Other witnesses, who testified to this same condition, were Mr. Paul Swedberg, and claimant, Bettie B. Bovey.

In addition to the complaints concerning the swaying motion of the bridge, as early as 1948 complaints were being made to the Division of Highways in regard to the slipperiness of the bridge during damp and icy weather. In the spring of 1948, the sign referred to above, which reads, to-wit: “Bridge Slippery When Wet — Frosty”, was installed. Subsequent to the installation of the sign, an accident, which occurred on the bridge on Easter day of 1950, at a time when the bridge was a sheet of ice, and the pavement approaches thereto merely damp, brought to the attention of the Division the tendency of the bridge floor to ice more suddenly than the other bridges and roadways in the area. The Division became advised of this accident from a report submitted by a State Police Officer, Robert Nichols, who reported the facts of the accident, and stated: “The bridge is made of steel mat, is very dangerous when wet or icy.” Mr. Ferguson testified that he knew of this accident in 1950, and so advised the office of the Division of Highways in Springfield.

Briefly, the facts of that accident, as testified to by claimant’s witness, Melvin Fiscal, are as follows:

On Easter Sunday morning of 1950, Mr. Fiscal in traveling north crossed the- bridge, while it was wet, at 15 miles per hour. Although it was wet, there was no ice on the bridge. Later, while driving south at about 9:30 A. M., he started to cross the bridge. There was no ice on the pavement, but the bridge had a coating of ice a quarter of an inch thick. He saw a driver approaching the bridge from the south, and flashed his lights to warn the driver to slow down. When the automobile from the south entered the bridge, it slid sideways half the length of the bridge until it was in his lane. It struck his automobile headon. Almost immediately thereafter, an automobile following Mr. Fiscal collided with the back end of the Fiscal automobile. A few minutes later a transport truck stopped at the south end of the bridge, the driver got out of the truck, walked on the bridge, decided he could go through, but, while driving on the bridge at about 5 miles per hour, and attempting to go around one of the automobiles involved in the accident, the truck failed to respond to his attempts to turn it, and slid straight ahead into the automobile.

The evidence further shows from the testimony of Mr. Ralph Ferguson, then District Engineer, that, since the happening of the Easter, 1950 accident, the Division became concerned over the tendency of the bridge to freeze quickly, and from that time on gave consideration to a solution to cure the sudden freezing quality of the bridge. He stated that the steel surface was subject to a considerably quicker freezing action than a bridge constructed with a concrete or asphalt surface, and that the Division, prior to the Bovey accident, and after the accident of Easter, 1950, had numerous discussions concerning a method of resurfacing the flooring of the bridge.

Over objection of respondent, Mr. Ferguson testified that, approximately one year after the Bovey accident, a solid bituminous surface was installed on the floor of the bridge, and that, since such installation, the safety problem created by the quick freezing propensity of the steel grid surface has been solved. Respondent’s objection was based upon the general rule that no change of condition made after the occurrence of the Bovey accident is admissible in evidence to establish an implied admission that respondent was guilty of negligence in causing the injury.

We agree with respondent that such is the law in this state. However, it is also the law that there may be other evidential purposes for which the acts in question may be received in evidence.

In Jones on Evidence, Vol. 1, pp. 540-541, it is said:

“According to the general rule, which is to be deduced from the authorities, such evidence is incompetent. The courts recognize, however, a number of exceptions to the rule, one being in case the evidence is offered to prove conditions existent at the time of the accident, and another where the evidence may become pertinent on the question as- to whose duty it was to make repairs.”

Although Illinois recognizes the general rule, it likewise recognizes exceptions to the rule. In the case of Kuhn vs. I.C. R.R. Co., 111 Ill. App. 323, which case involved an action for damages based upon public nuisance, the court held at page 329, as follows:

“We hold that the evidence offered, to the effect that the smokestacks were raised after suit was brought and that the nuisance was thereby largely, if not entirely, abated, though incompetent as an admission of negligence, was competent as tending to show that the lowness of the stacks caused the damage complained of in the declaration.’’

See also City of Chicago vs. Dalle, 115 Ill. 386, at 388 and 389.

It appears to us, that this evidence is admissible, since it, considered in the light of all the evidence, tends to establish the existence of the particular hazard involved at the time of the accident, namely, a considerable difference in the freezing quality of the steel grid surface with that of the more common bituminous or concrete surface bridge. This fact, therefore, bears upon the existence of the condition that claimant contends caused the accident, and for that purpose is admissible.

Mr. Ferguson testified that a concrete surface would place too much weight on this particular type of bridge construction, and that the Department did not know how to place a blacktop surface on the bridge, until they became advised of a certain process, which they learned of after the Bovey accident. It further appears from the evidence, however, that this process, known as the Nelson Stud Welding Process, was in existence, although unknown to the Division. It had been developed by a Chicago firm, and consisted of welding stud bolts to the grid floor, which secured in place a metal mesh, over which a bituminous surface was spread, and is the method, which respondent eventually used.

Mr. Ferguson testified that he had made repeated requests for a solution to the problem created by the surface of the bridge, and, although the Division did not ignore his requests, they seemed to find no solution to the problem.

From the evidence, it is clear to us that the Division, long prior to the Bovey accident, had actual notice of the hazardous condition of the bridge floor, especially the hazard existing during those periods wherein the bridge was icy and slick, although the roadways and other bridges in the area were free from ice.

In spite of "that knowledge, the only other precaution taken by respondent was an order, issued by the Division of Highways to Mr. Ferguson, to put flares at the end of the bridge when he found the bridge becoming icy. Mr. Ferguson testified that, by the time word would arrive at his headquarters, the bridge was in such a condition, it would have been icy for some while. This procedure was followed by Mr. Ferguson from the happening of the Easter day accident in 1950.

On the day of the accident in question, claimant, Bettie B. Bovey, a married woman, now 36 years. of age, and the mother of one child, left her home in Grand Detour driving a 1949 green Ford Convertible, which was in good mechanical condition. She drove south across the bridge at about 7:30 A. M. At that time the bridge was dry, and the pavement was free from ice and frost. She proceeded to her mother’s home in Dixon, Illinois, four miles south of Grand Detour, and, after visiting for a short while, started on her return trip to Grand Detour. Mrs. Bovey testified that the temperature, when she left her home in Grand Detour, was rather mild for that time of the year. She stated that she could tell no particular difference in the temperature upon leaving her mother’s home, and that the only difference in the weather was that a mist was falling, causing the pavement and the bridge to become damp. Mrs. Bovey testified that the paved road was free from ice, that there was no snow or frost on the countryside, trees and vegetation, and that on her return trip she crossed a bridge with a concrete surface, which was free from ice and not slippery. Mrs. Bovey testified that she was proceeding at approximately 45 miles per hour, and, as she approached the bridge, slowed to a speed of approximately 25 miles per hour. As she entered upon the bridge surface, her car swerved suddenly to the right against the curb of the sidewalk running along the east edge of the bridge, and from that point on her car was completely out of control. It slid along the bridge toward the other end, and she collided with an automobile being driven in a southbound direction. The accident occurred at approximately 9:00 A. M.

Subsequent to the time that Mrs. Bovey crossed the bridge, while proceeding to her mother’s home in Dixon, the bridge floor suddenly became frozen. It appears from the evidence that some time prior to 8:30 in the morning the bridge started to ice. Witness, Amos Conley, a service station operator in Grand Detour, whose station was located approximately one-half mile north of the bridge, was called to come to the bridge, and tow a disabled automobile away. Mr. Conley testified that, when he arrived, he found a 1948 Chrysler coupe had slid into the side of the bridge, bending the bumper against the wheel, requiring it to be straightened. He stated that the bridge floor was icing at that time. Mr. Conley further testified that, prior to being called to the bridge to tow the Chrysler automobile away, a Chevrolet coupe had stopped at his station for slight repairs, and he was informed by the driver that the bridge was icy, and the coupe had slid into the guard rail.

Mr. Conley further testified that, approximately one-half hour prior to the occurrence of the accident in which Mrs. Bovey was injured, Mr. Ralph Ferguson, the District Engineer, stopped by his station, and asked if he, Conley, had heard of any complaints about the bridge that day. Mr. Conley told Mr. Ferguson about the accidents, which had occurred, and further stated that it, the bridge, “didn’t look too good”. Mr. Ferguson was on his way to church at the time, and did not go to the bridge "prior to the happening of the Bovey accident, nor did he take any action with respect to setting out flares.

It appears from respondent’s exhibit Ho. 1, a motor vehicle accident report, that a third accident occurred on the bridge that morning before the Bovey accident. After the Chrysler 'automobile had been towed in, a Mercury, driven by Carl Marine, proceeding south was sideswiped by a Plymouth automobile going north at approximately 8:45 A. M. The report indicates that this accident occurred while the vehicles were crossing the bridge, which was coated with- ice and slippery, and that the northbound vehicle skidded, went out of control, and struck the southbound vehicle. The Plymouth automobile was driven across the bridge, and parked at the north end thereof, whereas the Mercury automobile was abandoned by the west sidewalk between the center and south end of the bridge.

At the same time that Mrs Bovey approached from the south, a green Oldsmobile sedan, driven by Lowell Zander, was entering the north end of the bridge in its own lane, followed by a Buick automobile, driven by a Mr. Paul Swedberg. When Mr. Swedberg entered the bridge, he did not know it was icy. After entering the bridge, he saw the Bovey car approaching from the south, and sliding out of control toward the Zander automobile. Mr. Swedberg then tried to stop, turned sideways, and slid approximately 150 to 200 feet into the Oldsmobile ahead of him, after it, the Oldsmobile, had already collided headon with the Bovey automobile in the Oldsmobile’s traffic lane. After he stopped, Mr. Swedberg got out, and almost fell down on the icy bridge, because of the icy condition. No occupants in the Zander automobile were called as witnesses by either claimants or respondent.

It was in this accident that Mrs. Bovey received the injuries, for which she brings suit. Before discussing the question of damages, we will first address ourselves to the question of liability.

From the evidence in this case, it clearly appears that the steel grid floor of the bridge was unquestionably subject to becoming icy and slick on occasions, when the' approaching highway and other bridges in the area did not become icy. It also is clear from the evidence that the flooring in this type of bridge freezes more quickly than the ordinary concrete surface or bituminous surface bridge.

It is also apparent from the record that respondent had knowledge of this condition for more than a year prior to the Bovey accident, recognized the hazard it presented, and, in fact, the Division of Highways was attempting to arrive at a solution by devising a method to resurface the bridge.

It also appears from the evidence that the manner in which the bridge was constructed was faulty, at least to the extent that it imparted a swaying motion to vehicles proceeding across the bridge, due to defective fabrication of the steel grid sections. This, respondent also was cognizant of, and had attempted to find some solution to correct the situation.

Under these circumstances, even though respondent might not have been negligent in failing to devise a method for surfacing the bridge, which the evidence shows was not known by the Division of Highways until after the Bovey accident, it nevertheless should have recognized, and in our judgment did recognize, the unusual hazard, which the combination of climatic conditions and the bridge surface presented.

It is not unusual for bridges to freeze in snowy, icy, and extremely cold weather, when the pavement is free from ice or snow. This condition occurs, because the ground temperature imparts a warmth to the pavement, while the bridge floor obtains no such warmth. This condition, the traveling public should take cognizance. However, at a time when other bridges in the same area are free from slipperiness, and, when there is no evidence of snow, ice or freezing temperature, then, under such conditions, an icy bridge, such as the one involved in the instant case, presents in our judgment, a hazard not readily foreseeable, and constitutes a trap for members of the traveling public, who are not acquainted with the difference in freezing qualities of the various bridge floors.

Knowing that this situation did exist, and apparently being powerless to correct it without closing the bridge, respondent owed a duty to the traveling public to give sufficient and reasonable warning of this particular danger and hazard, if the bridge was to be continued in nse.

The fundamental question involved in this case appears to us to be: Was reasonable warning given of the existence of this particular hazard, which was known by respondent to exist? As stated above, the only warning given was by the sign reading “Bridge Slippery When Wet — Frosty”.

In considering this question, it is to be noted that respondent’s witness, Mr. Ferguson, then the District Engineer, stated that he had tested the bridge on many occasions, crossing it at 30 to 60 miles an hour in wet weather, and that the bridge was not slippery under those conditions. Therefore, we must assume from the evidence that, had there been no ice on the bridge, it would not have been slick from the mere existence of moisture alone.

There is no evidence in the record of any frost being-visible on the bridge, on the countryside, or on the highways, and, in fact, Mrs. Bovey stated there was none. Therefore, the sign served as no warning that the bridge might be icy, when there was no frost, ice or snow visible elsewhere.

It is further to be noted that the Division of Highways had notice of the ineffectiveness of the sign under the circumstances involved herein, by reason of the accident that had happened on Easter day of 1950, heretofore referred to; after which, according to the testimony of Mr. Ferguson, the Division of Highways became quite concerned to the extent that they held many conferences on the question of this particular hazardous condition; and, although arriving at no solution as far as surfacing the bridge was concerned, determined that, when the bridge became icy, burning flares' should be placed at the entrance of the bridge. It is common knowledge that such procedure is not used on. regular concrete bridges, and, therefore, this activity on the part of the Division of Highways indicates to us that they themselves were not satisfied with the warning afforded by the signs.

The duty which the state owes to the public in maintaining its highways is well settled. As stated in Rickelman vs. State of Illinois, 19 C.C.R. 54 at 57:

“Respondent's duty to maintain state highways in a safe condition or to warn of unsafe conditions is manifest.”

We have also held that, if the state has knowledge, actual or constructive, of a dangerous condition on its highways, and fails to warn the public of the condition, with resultant injury, it must respond with damages for its negligence. Pomprowitz vs. State of Illinois, 16 C.C.R. 230; Rickelman vs. State of Illinois, 19 C.C.R. 54; Hubbard, Et Al vs. State of Illinois, 21 C.C.R. 495.

It is likewise the law that the state is not an insurer against accidents on its highways, but is required only to keep them in a reasonably safe condition for the purpose to which the portion in question is devoted, and the placing of signs warning of the conditions to be met, fulfills the obligation of the state to the users of the highway. Gray, Et Al vs. State of Illinois, 21 C.C.R. 521.

What constitutes an exercise of reasonable care in regard to the maintenance of the highways, and the reasonableness of warning signs is, of course, a question' of fact to be determined by the Court from all the facts and circumstances in evidence in each given case.

In our legal research, we have found no case squarely on point with the instant case. Several cases involving the absence of signs altogether have been before the Court, but few involving the adequacy of signs have been presented. In one case, Terracino, Et Al vs. State of Illinois, 21 C.C.R. 177, the Court denied claimants ’ claim. The facts disclosed that an accident occurred by reason of claimants’ automobile striking a hole in the pavement, throwing the driver out of control, and into a headon collision with an approaching automobile. The evidence, however, in that case disclosed large signs bearing the legend “Pavement Patching Ahead. This road is being kept open for your convenience. Drive With Caution. Barricade and one way traffic ahead.” A further sign was erected, which bore the legend “Speed Limit 25 M.P.H. in repair zones”. The evidence further reflected yet another sign reading “U. S. 66—7 miles, under construction, patching, widening, and resurfacing. This road is being kept open for your convenience. Drive With Caution.” The evidence reflected still other signs of warning. The Court, in denying the claim, recognized the general rules of law referred to above, namely, that the state would be negligent if, having knowledge of dangerous conditions on the highway, it failed to warn users of the highway of such dangerous conditions, but found at page 182:

“However, the record in this case discloses that the state had fulfilled its obligation to users of the highways by the erection of large, unambiguous and prominent signs that adequately warned of the conditions users would encounter in the construction area.”

In Pomprowitz vs. State of Illinois, 16 C.C.R. 230, this Court allowed a recovery wherein the facts indicated that respondent had failed to properly warn the traveling public of an excavation in the highway. The facts of that case established that the state had placed a barricade and flares before the excavation, but that the flares had either not been lit, or had gone out prior to the accident. The Court at page 235 stated:

"There can be no question that respondent in the construction, maintenance, and repair of its highways has a duty to exercise reasonable care and caution to prevent injury to or destruction of life and property. Where respondent, in the course of road repairs, leaves a deep excavation in the highway it is incumbent upon it to take reasonable measures to guard against injury to the public. Minimum safeguards would be adequate barriers and suitable lights, warning of the hazardous and dangerous situation.”

And, at pages 236 and 237:

“The Court is of the opinion that respondent was negligent in the performance of its duty to the traveling public by failing to maintain, during the night of August 21st and the morning of August 22, 1945, proper warning of the existence of this dangerous excavation. Respondent cannot meet its obligation to motorists traveling on a busy, four lane highway, in these days of almost continuous commercial and personal motor travel, by putting up a single barrier, lighting two or three flares in late afternoon, and returning the following morning with a hope and a prayer that all is well.”

In Rommel vs. State of Illinois, 20 C.C.R. 220, the Court allowed a recovery for injuries occurring because of an excavation in the highway, and from respondent’s negligence in failing to light and warn motorists of the presence of barricades. In that case there was testimony that there was no flare illuminating the sign along the highway and shoulder, 550 feet west of the crest of the hill, which was black and yellow, and bore the legend “Road Repairs Ahead”. In Cruger vs. State of Illinois, 20 C.C.R. 138, the Court allowed a recovery on much the same set of facts.

In the instant case, as far as the signs are concerned, we are confronted with the situation where there was a sign clearly visible, and known to claimant. Our attention is, therefore, addressed to the question whether, under all of the facts and circumstances, the sign was such that gave reasonable notice and warning of the particular hazard involved.

It is the contention of respondent that there is no liability upon the state for injuries resulting from slipperiness of streets and sidewalks due to the presence of ice or snow, which has accumulated as a result of natural causes, citing the case of Ritgers vs. City of Gillespie, 350 Ill. App. 485. At page 491, the court in that case set forth the general rule in Illinois:

“The authorities in Illinois generally agree that the city is not liable for injuries resulting from the general slipperiness of streets and sidewalks due to the presence of ice and snow, which have accumulated as a result of natural causes.”

And, at page 492:

“The basis of this rule of law is that it is unreasonable and impractical to compel a city in our climate to perform the labor necessary to remove ice and snow from its streets and sidewalks to keep them safe for travel. If the accumulation is caused by some defect of tire street or sidewalk, and this creates the dangerous condition, then a city may be liable. (Graham vs. City of Chicago, 346 Ill. 638.)”

We agree that such is the rule in Illinois, and, if this case involved simply an accident on an ordinary bridge or highway, because of generally icy conditions, there could be no recovery.

To decide this case on that question, however, would be a great over simplification of the questions involved herein. It was not just the mere existence of ice, which brought about the accident in question, but it was primarily due to the nature of the bridge being subject to a quick freeze at a time when there was no evidence of ice, snow, or extremely cold weather in the general area surrounding the bridge, and even other bridges in the same area were not slippery, thus creating a trap for the unwary traveler.

This question involving a trap created by unexpected icy areas has been involved in a few cases in the United States, one of which is the case of Taylor vs. City of Albany, 239 App. Div. 217, affirmed by the New York Supreme Court in 264 N. Y. 539, 191 N.E. 554, and abstracted in 9 Negligence and Compensation Cases, Annotated, New Series, at page 633. It was a suit for personal injury brought by a motorist against the City of Albany and a railroad to recover for personal injuries sustained when her car skidded on an icy pavement and collided with a supporting column, as she drove under a railroad bridge in the City of Albany. It appeared that, at the time the roadway was built under the bridge, it was necessary to level the highway for a distance of 1,000 feet. No drainage was provided either by the City or the railroad, with the result that water would flow under the bridge from the higher portions of the highway and the railroad embankment, and in cold weather it would freeze forming ice several inches thick. On the day in question, the pavement on either side of the bridge was dry, but underneath the bridge the road was covered with ice. The court in reinstating the verdict, which had been rendered by the jury in favor of the plaintiff, stated at page 634:

“ ‘The defendant railroad company built and maintained the bridge. The city approved the construction by allowing it to be maintained for many years, and fixed the level of the pavement below the adjacent surface. Each knew that no drainage was provided to remove the water, which gathered in this hollow, that it was held upon the pavement by the footings of the adjacent colonnades, and that in freezing weather ice would be formed, which being shaded by the bridge would melt more slowly than on other portions of the pavement. For this reason, each recurring thaw, followed by a freeze, would thicken the blanket of ice until the roadway was raised so that the water drained to the sides. Tire city, jointly with the railroad company, created this dangerous condition, and is presumed to know of its own negligent act. Written notice was unnecessary. . . . The city . . . failed in its duty to use the care requisite to maintain the street in a reasonably safe condition for travel. The railroad company failed to maintain its structures over the highway so that water would not drain and leak upon tire pavement, creating a dangerous and unsafe condition.' ”

This case, although not clearly in point, is similar in that respondent in the instant case had selected the particular floor involved, and knew of its propensity toward freezing, when the surrounding area was not frozen.

Another similar situation is presented in the case of Khoury vs. Saratoga County, Carma vs. Saratoga County (two cases), 267 N. Y. 384, 196 N.E. 299, 17 N.C.C.A. (N.S.) 507, which cases were decided in 1935. The action was for wrongful death and personal injuries resulting when the persons involved were struck by an automobile, which skidded on the icy roadway of a bridge, striking the pedestrians, and then traversing the walkway of the bridge. The bridge in that case was a county line bridge over a waterfall. The facts established that the ice was formed from spray dashing up from the falls below, and that “the dangerous character of the place was due not simply to the ice, but because the ice was on the bridge only, all of the rest of the highway and approaches being dry. Consequently, one ran onto the ice without previous warning or notice.” In that ease, the facts established that there were no warning signals, nor had there been any sand placed on the floor of the bridge. It was further established that the county had known of this danger for a long time. It appeared from the decision in the case that the court treated it as one of public nuisance rather than negligence.

A similar case, McCracken vs. Curwensville Borough, 309 Pa, 98, 163 A. 217, 86 A.L.R. 1379 (1932). involved a suit to recover for the death of plaintiff’s husband, who, while driving his automobile, skidded on the icy approach to a bridge, and went through a guard rail into the creek below. Plaintiff charged negligence in permitting ridgey accumulations of ice on the approach to the bridge formed by drippings from a cliff at the side, a condition of long standing, which was well known to the defendant, and in maintaining an insufficient and rotten guard rail at the bridge. A judgment was entered on the verdict for the plaintiff, which judgment was sustained on appeal.

It would thus seem that courts have recognized that an icy condition on a public highway, which arises from some reason other than a natural generalized condition, presents the type of hazard with which public authorities should concern themselves, and which can, under certain circumstances, afford the basis for legal responsibility, unless alleviated or guarded against.

Respondent contends that the sign itself, the existence of which was known to claimant, was sufficient warning of the condition, and cites in its brief as authority the case of Shenk vs. Scandrett, 314 Ill. App. 582. That case involved a suit to recover for the wrongful death of plaintiff’s intestate for alleged negligence on the part of defendant, who had constructed and maintained the bridge. The surface of the bridge consisted of planks, which, when wet, were notoriously slippery. Approaching the viaduct from the south was a slow sign 1177 feet south of the bridge. There was a narrow pavement sign 894 feet south of the bridge. The concrete pavement began to narrow 695 feet south of the bridge from 40 feet at that point to 20 feet at the point where the concrete joined the bridge. There was a “ Slippery When Wet” sign at the foot of the approach to the bridge. The evidence established that it had rained the night before, which made the planks thoroughly wet and very slippery, and, when the accident occurred, it was still drizzling. The automobile of plaintiff’s intestate came upon the wet wooden planking, and skidded through the guard rail to the railroad track below. The plaintiffs argued that the condition, which existed on the approach to the viaduct, was extremely dangerous and hazardous, and was one that a motorist would not ordinarily expect, and that similar conditions are not to be found in that vicinity. The court denied recovery stating that “The sign at the bottom of the south approach to the bottom of the viaduct reading ‘Slippery When Wet’ was erected and maintained by defendant, and constituted a warning to all persons approaching the bridge that they must exercise care in driving upon it when wet.” The court in citing from another case, and adopting the reasoning therein as conclusive in that case, stated: “The substance of plaintiff’s evidence is that the roadway was slippery, because it was wet. Plaintiff does not claim the surface was slippery, because it was oily, that is, the alleged dangerous defect is that the bridge floor was wet.” And, “The evidence discloses no defect in the construction or maintenance of the roadway, and on this record we are compelled to hold that defendant performed its duty to keep the bridge in a reasonably safe condition for travel.”

The distinguishing feature in that case from the instant one is that the sign “Slippery When Wet” gave warning of the precise danger or hazardous condition, which existed at the time of the accident, and caused it. In the instant case, it was not the wetness that caused the accident, but a condition not warned of, namely, that the bridge was icy, when there was no reason to believe it would be icy from the surrounding facts and circumstances.

In LeBoeuf vs. State, 7 N.Y.S. (2d) 621, 1938, in a suit for the death of a person injured in an automobile collision, in which recovery was allowed against the State of New York, the evidence established that the conditions of the roadway at the scene of the accident were such as to cause an eastbound motorist, after leaving the straight, level, concrete approach, and passing over the crest of a hill, to almost immediately descend on a declining grade, and, at the same time, to make a sharp curve to the south or right along a banked macadam surface, whose southerly edge was more than one foot, three inches lower than its northerly edge. The macadam construction became very slippery when wet, and, coupled with the noted physical conditions, created a very dangerous situation. The danger was aggravated by the state’s failure to erect warning signs to give eastbound travelers fair notice of the situation ahead, namely, that the concrete pavement ended, changed to macadam, and was slippery and dangerous, because of a sharp curve and descent immediately over the crest of the hill. There was a “Slow” sign 124 feet west of the end of the concrete pavement. Claimant contended, no eye witnesses existing, that the LeBoeuf car, then proceeding in an easterly direction, had skidded, turned around, and hit the bank at the side of the road, causing a window to break, which cut the deceased’s jugular vein, and resulted in her bleeding to death. The court in allowing the claim said:

“ ‘While ordinarily the state would not be liable for conditions due solely to weather, yet 'when the highway is rendered more dangerous by action of the elements, and the state fails to properly remedy such dangerous condition, it may become liable to one injured thereby. ... In view of the existing conditions at or near the crest of the hill on the highway in question, the failure of the state to give adequate warning by the erection of proper and adequate signs at a reasonable distance from the point of danger, constitutes a serious breach of duty, and created an unnecessary dangerous condition.’ ”

It is to be noted that this recovery was allowed, even though there was a sign reading “Slow”. Obviously, from the decision, said sign was held not to be a sufficient warning. It does not appear that it would be sufficient to warn of the particular danger ahead, which was, namely, the sharp curve and slippery pavement. Similarly, the sign in the instant case does not, in our judgment, constitute reasonable and sufficient warning of the particular hazard involved.

In East Coast Freight Lines vs. Baltimore, Maryland, Court of Appeals, 58 A. (2d) 290, decided April 1, 1948, also reported in 2 A.L.R. (2d) 386, the court ably summarizes the rule, which we believe should apply in this case:

“This court pointed out in that case that it is the duty of the municipality to exercise reasonable care to keep its public highways safe for public travel. It is well settled that it is not an insurer of the safety of persons in the lawful use of such highways, but is only liable for a failure to use reasonable care to so maintain them that travelers thereon in the exercise of reasonable care at night or in the day may not be subjected to any dangers arising from defects in the construction, upkeep, or maintenance of such highways under reasonably foreseeable conditions of weather or traffic. Tire municipality may, therefore, be liable for injuries caused by an obstruction in a public highway of which it had sufficient notice, even though the obstruction is authorized by proper municipal and legislative authorities, where it is reasonably foreseeable that it will endanger persons using the highway while in the exercise of reasonable care unless it takes the precaution of warning such persons of the danger by some reasonably adequate means. ‘Such a liability does not arise from any failure of a general duty to light the highways, but from a failure to exercise reasonable care to guard the traveling public against some special condition of which the municipality had sufficient notice which an ordinarily prudent person might reasonably anticipate would endanger travelers on the highway while in the exercise of reasonable care. 29 C.J. 688. Tire basis of that liability is the duty resting upon the municipality of keeping the highways safe for travel over them. That duty is not discharged if the highways are permitted to be or remain in such a condition that persons in the lawful use of them may be imperiled by unknown dangers, which they could not by the exercise of reasonable and ordinary care anticipate or avoid.’ ”

As appears from the record in this case, Mr. Ferguson, the District Engineer, while within one half mile of the bridge thirty minutes prior to the Bovey accident, knew that the bridge was in the hazardous condition, which had so long concerned the Division of Highways, and also knew that two accidents had already occurred that morning. Had a proper warning system been provided for, he could have easily placed it in operation himself. We do not intend to state the precise type of warning system, which would have been sufficient 'to have discharged the duty of respondent to give warning of this particular hazard, but it seems to us that a reasonable exercise of care for the particular hazard involved would have been met by proper inspection during the winter months, coupled with the installation of a covered sign, which, when uncovered, would advise the traveling public that the bridge was then icy and hazardous.

It is our considered judgment, from the facts, circumstances, and the above authorities, that negligence of respondent has been established in this case. In finding negligence, however, and, as we stated before, we are basing our decision upon the fact situation presented herein with respect to this particular bridge and hazardous condition, coupled with the ample notice of same to respondent. We do not, by this holding, mean to imply that the state owes an obligation to post a warning sign at every bridge in the state, nor do we mean to imply that the state owes a duty to- keep all of its highways and bridges" free from ice.

Respondent also contends that claimant was guilty of negligence, which contributed to cause the accident in question. Respondent contends that claimant knew the adverse conditions of the weather, and was thoroughly familiar with the premises where the accident occurred, having crossed the bridge on many occasions, and living in the vicinity; that the claimant knew of the signs cautioning that the bridge was slippery when wet, and that she also observed the other vehicles stalled upon the bridge, when approaching one hundred yards from the bridge; that there were no hidden conditions or defects of which she was not advised; and that she failed to prove by a preponderance of the evidence that she was in the exercise of due care and caution for her own safety from the time she entered the bridge until the accident occurred.

It is fundamental that the law, as respondent contends, requires claimant to allege and prove that she was in the exercise of due care and caution before a recovery can be granted. In determining this question, many of the same facts and circumstances heretofore discussed in deciding the question of negligence are pertinent.

The only evidence offered in the case concerning the speed at which Mrs. Bovey was proceeding was her own testimony. She stated that she had slowed her automobile to 25 miles per hour before entering the bridge, due to her knowledge that the bridge floor had the tendency of causing the swaying motion, heretofore referred to. She testified she knew of the signs, and also knew that it was misting, and the pavement was damp. She stated that, when she left her mother’s home, she went directly to the bridge, a distance of approximately four miles, and at no time did she observe any frost, snow or ice either on the roadway or the surrounding countryside. She testified that the only difference in the condition of the weather from her first crossing of the bridge was that it was misting, and tiie roadway was damp. Mrs. Bovey testified that she noticed no drop in temperature from the time she lef,t her home in Grand Detour until the accident occurred. She stated it appeared to her to be unusually warm for that time of the year, and that during the visit with her mother she at no time learned the temperature from either a thermometer or radio announcement.

She further testified that she crossed one concrete surface bridge after leaving her mother’s home, and that, although the surface was damp, there was no evidence of slipperiness or icy condition on the bridge.

She states that she did not know the bridge was icy, nor had she any knowledge of the tendency of the bridge to freeze quickly. She had never made complaints to the State of Illinois in regard to the condition of the bridge, and the only complaints she had heard of were the ones concerning the tendency of the bridge floor to cause automobiles to sway, both in dry and wet weather. She stated that she had never crossed the bridge at a time when it was icy.

With respect to the two automobiles on the bridge at the time she entered, she testified that, as she approached the bridge, she noticed the two cars on the bridge, one of which was on her left about the middle of the bridge, and the other was to her right at the far end of the bridge. She testified that she did not know whether both cars were moving or stopped. She testified that there was nothing to indicate to her that an accident had happened, and no people were visible around the automobiles. She testified that, upon entering the bridge, her car immediately swerved to her right, throwing her front wheels against the curb, and that she lost control of the automobile; that she tried to regain control, but was unable to do so; that she at no time applied the brakes; and that her automobile remained out of control, until it collided with the Zander automobile.

From the testimony of claimant, and from all of the surrounding facts and circumstances, we cannot say that there is any evidence of contributory negligence on her part, and it is our further judgment that she has maintained the burden of proof in establishing that she was in the exercise of due care and caution at the time of, and immediately prior to the accident in question.

It is true, as respondent contends, that the user of a highway is under a duty to exercise care commensurate with the conditions known to exist. Briske vs. Village of Burnham, 379 Ill. 193, Dee vs. City of Peru, 343 Ill. 36; Duffie, Et Al vs. State of Illinois, 19 C.C.R. 40. On the other hand, it is also the law that a motorist is bound to exercise only that degree of care of an ordinarily prudent person to prevent injury to himself or his property, and is not required to exercise extraordinary care. The test is, was he, at the time of the accident, using such care as a prudent man in such an occupation ordinarily uses, considering the time, place, condition of the highway, the weather, the vehicle used, and the presence of other persons’? Cyclopedia of Automobile Law and Practice, Blashfield, Vol. 5A, Par. 3312, p. 365. As stated in Habenstreit vs. City of Belleville, 302 Ill. App. 383 at 386:

“The law does not charge one with anticipating danger and negligent conditions, but he may assume that others have done their duty to give proper warning of hidden dangers. Citing Pollard vs. Broadway Central Hotel Corporation, 353 Ill. 312.”

Due to the lack of visible evidence of the existence of ice, snow, frost, or extremely cold weather, we believe that the danger was a hidden one, at least to members of the traveling public before they entered the bridge, and that claimant should not be held, under the facts and circumstances of this case, to have discovered it in time to avoid the effects of the danger.

It is, therefore, our holding that claimant was in the exercise of ordinary care for her own safety at the time of, and immediately prior to the accident in question.

There can be no serious question but what the dangerous and hazardous condition, under the facts and circumstances of this case, was the proximate cause of the collision in question. There has been no evidence of negligence against the driver of the automobile • with which Mrs. Bovey collided, and certainly there could be no reasonable contention that any act on the part of a third person was a sufficient intervening cause.

It is, therefore, our considered judgment that claimants have established a claim against respondent for the damages and injuries resulting from this accident.

With respect to damages, the evidence establishes that claimant, Mrs. Bovey, suffered severe injuries, consisting of shock, lacerations of the face, fracture of the right arm, and a compound fracture of the left femur, said fracture being a transverse fracture above the knee, and a longitudinal fracture extending into the knee joint, which has caused fragmentation of the upper portion of the knee joint.

It appears from the evidence that Mrs. Bovey has satisfactorily recovered from the concussion and the fracture to the right arm. The evidence establishes a scar near the left eye, and another near the chin, which are relatively small, and not prominent. Dr. Edward S. Murphy of Dixon, Illinois, the treating physician of Mrs. Bovey, testified that claimant has sustained a decided loss of function of the left leg, to-wit: approximately 90% loss of use of flexion of the knee. He testified that this loss of function appears to he permanent, and will not improve. At the time of the hearing, Mrs. Bovey was able to walk without artificial aid, but still had trouble with swelling above the knee, and was still under the doctor’s care. The evidence establishes that a metal plate was inserted in the leg, and will be removed in the future. The removal of the plate will not affect the 90% loss of flexion of the knee.

The doctor testified that, because of her stiff leg, she will be able to perform some household duties, but not all duties.

The testimony and exhibits reflect a doctor bill of $1,193.80, and future surgical fees for the removal of the metal plate will approximate $50.00. It was necessary for claimant to be hospitalized for a total of 217 days, during which she incurred numerous items of hospital expense, all totaling $2,548.60. The evidence establishes that $500.00 of the hospital bill has been paid by Robert Bovey’s insurance company under the medical payments provisions of the policy.

Obviously the injury to Bettie B. Bovey is serious and permanent. It seems just that a maximum award should be made, which amount is $7,500.00.

In regard to the claim of Robert W. Bovey, we must keep in mind Section 80 of the Court of Claims law, wherein it provides a limitation for damages as follows:

“Provided that an award'for damages in a case sounding in tort shall not exceed the sum of $7,500.00 to or for the benefit of any claimant."

Mrs. Bovey has been awarded the maximum sum, and, therefore, any item of expense incurred by Mr. Bovey for her benefit has already, by force of the above limitation, been included in the sum awarded to Mrs. Bovey.

Mr. Bovey testified that, because of his wife’s injuries, he purchased three pairs of special shoes to accommodate her leg brace, at about $16.00 a pair, totaling $48.00; two skirts to conceal the braces, totaling $25.00; and expended the sum of $75.00 for sedatives, vitamins and calcium.

We can allow no recovery for these items, since they directly benefited Mrs. Bovey. If such items of expense were allowed, then there would be no reason why the entire medical or hospital bill could not be considered as Mr. Bovey’s claim, rather than Mrs. Bovey’s.

Another item of expense, claimed by Mr. Bovey, is an amount expended in the employing of women to perform household work, beginning in late August of 1952, at an average of $5.00 per week. The only competent testimony offered in regard to Mrs. Bovey being able to perform her household duties was the doctor, who stated that she would be able to perform some household duties, but not completely. Mrs. Bovey did not testify with regard to her ability, or lack of ability, to perform her household work. In this state of the record, we could only speculate upon what Mrs. Bovey can do, and what she can not do. We do not intend to do this. A mere incurrence of an expense does not constitute proof that it was necessary. In addition thereto, Mrs. Bovey has, as we have stated before, been compensated as fully as this Court has the power to order, and any portion of the housework expenses, incurred for her benefit or convenience, would not be compensable under Mr. Bovey’s claim.

Mr. Bovey testified that it was necessary for him to have his laundry and pressing done commercially during the time that his wife was confined to the hospital, and that it averaged $5.00 per week. He stated that she had done this work for him up until the happening of the accident. This presents a compensable claim, since no part of those services could be considered as benefiting Mrs. Bovey, and would not, therefore, be included within the amount awarded her.

In computing the amount Mr. Bovey should be awarded, we are determining that he should be compensated for this expense up to and including September 1, 1952, which is the date that Mrs. Bovey was apparently able to resume caring for her child. This would entitle him to recover the sum of $200.00, being $5.00 per week for forty weeks. Although Mr. Bovey testified that he is still incurring this expense, there is nothing in the record to establish that his wife is unable to perform such services at this time, and there is nothing in the record with respect to the length of time she was unable to do so. Any extra cost in laundering the clothing of Mrs. Bovey would not be compensable for the reasons heretofore set out.

Mr. Bovey also incurred an indebtedness of $400.00 to his sister-in-law, Mrs. Fred Bovey, who cared for claimants’ five year old son at $10.00 per week from November 26, 1951 to September 1, 1952, by reason of his mother, Bettie Bovey, being unable to do so. This is also compensable, since Mr. Bovey would have had to care for the child himself, or provide for his care by others.

It is, therefore, ordered that the claim of Bettie B. Bovey be allowed in the amount of $7,500.00, and that Robert W. Bovey be awarded on his claim, the sum of $600.00.


author: Tolson, C. J.

text:
    (No. 4568
    Whitehouse Trucking Company, for the use of the Hanover Fire Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1955.
    Heineke and Conklin, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On September 24, 1954, claimant, Whitehouse Trucking Company, filed its complaint herein for the use of the Hanover Fire Insurance Company to recover damages in the amount of $2,551.29, which was thereafter reduced to $2,437.39. The claim is for the loss of a cargo, consisting of a prefabricated or portable house, which claimant was transporting on its tractor-trailer (herein sometimes referred to as “truck”) from Toledo, Ohio for delivery to Manitowoc, Wisconsin.

The record consists of the complaint, Departmental Report, transcript of evidence, abstract .of evidence, statement, brief and argument of claimant, Commissioner’s Report, statement, brief and argument of respondent, and reply brief of claimant.

The facts of the case are as follows:

On June 11, 1952, maintenance personnel of the Division of Highways of respondent, State of Illinois, made two openings on the east half of the pavement of Route No. 83, approximately one mile south of U. S. Route No. 68 near Arlington Heights, Illinois, and at a point approximately 335 feet north of a local east-west highway, known as Hintz Road. All elements of reconstruction, repairs, maintenance and operation of said Route No. 83 have been under the jurisdiction of the Department of Public Works and Buildings, Division of Highways, from the time of the original construction in 1927 to the date of the occurrence hereinafter described.

Route No. 83 consists of a concrete pavement, 20 feet in width, and bordered on each side by an earth shoulder, 8 feet wide. According to the Departmental Report of the Division of Highways, the southerly of the two excavations was 5 feet wide, 15 feet long, and approximately 9 inches deep. The second excavation was 27 feet north of the above described opening, and was 6 feet wide, 8 feet long, and approximately 9 inches deep. The westerly border of each of the excavations was the center line of the pavement.

Early on the morning of June 12, 1952, at approximately 1:30 A. M., Sylvester S. Barenowski was driving the tractor-trailer of claimant north on said Route No. 83 at a speed of approximately 38 to 40 miles per hour. He struck the first of the two openings in the road, which caused his trailer to-jackknife, that is, the tractor started to head one way, and the trailer moved in the opposite direction, pulling the tractor with it. Coming from the north, and traveling in a southerly direction on the same road, was a Plymouth Savoy Station Wagon, owned and operated by Nelson J. Waters. Mr. Waters had left a restaurant in Grays Lake, Illinois at about 1:00 A. M. on June 12, 1952, and was on Ms way to Ms home on the south side of CMcago.

Hanover Fire Insurance Company, for whose use the instant proceeding was brought, insured WMtehouse Trucking Company under a motor truck cargo policy, by virtue of which it was compelled to pay the loss sustained, and thereby became subrogated to the claim of WMtehouse Trucking Company against respondent. Adequate proof of the insurance coverage was offered, and received in evidence, and there is no dispute with reference to it.

Claimant alleges that respondent was negligent in that it failed to provide proper and adequate signs, barricades, and flares in and about the highway where the openings were made to warn oncoming vehicles of the dangerous condition of the highway.

This Court in previous decisions has established, as a matter of law, that the state is not an insurer of all accidents, which may occur by reason of the condition of its highways. Nevertheless, it is liable for:

(a) Positive acts of negligence.

(b) Knowledge of a dangerous condition in the highway, and failure to repair or give adequate warnings.

(c) Constructive knowledge of a dangerous condition in the highway, and failure to repair or give adequate warning. Visco vs. State, 21 C.C.R. 480.

To determine whether the state is guilty of negligence, or the complainant is guilty of contributory negligence, will require a careful scrutiny of the testimony introduced in said proceedings. The following-facts are not disputed in the testimony:

1. Whatever rights the Whitehouse Trucking Company may have under this complaint, such rights are subrogated to the Hanover Fire Insurance Company by reason of its payment for the loss sustained.

2. The Division of Highways of the State of Illinois removed two sections of pavement in the east lane of State Route No. 83 on June 11, 1952.

3. At the close of the day’s work on June 11, 1952, about 4:30 P. M., adequate, and, in fact, elaborate warning signs, as well as lighted bomb flares were placed to protect the traveling public.

4. The accident occurred between 1:00 and 1:30 A. M. on the morning of June 12, 1952.

5. It was dark and windy, and a hard rain was in progress.

It is believed that a further discussion regarding the number and position of the warning devices, which are described below, will be helpful.

Site 1. On the east highway shoulder, at a point approximately 350 feet south of Hintz Road, which is about 650 feet south of Site 3, the scene of the accident, a reflectorized sign, bearing the legend “Barricade Ahead”, was mounted and in place on a tripod, and was lighted with a bomb flare.

Site 2. On the east highway shoulder, at a point just north of Hintz Road, approximately 300 feet south of the first excavation, a reflectorized sign, bearing the legend “One Way Traffic” was mounted and in place on a metal tripod, and was lighted by a bomb flare.

Site 3. This was the scene of the accident. The south excavation was an open area, 5 feet wide and 15 feet long, running lengthwise along the center strip of the pavement.

The north excavation was located 27 feet north of the south excavation, and was an open area, 6 feet wide and 8 feet long, running lengthwise along the center strip of the pavement.

The total area of Site 3 was a strip approximately 50 feet long, running along the east side of the highway, and was protected as follows:

SOUTH EXCAVATION

(a) A reflectorized barricade was set up in front of the excavation, and was lighted by three bomb flares.

(b) Two reflectorized barricades were set up along the west side of the excavation, and each was lighted by a bomb flare.

(c) A reflectorized barricade was set up on the north edge of the excavation, and was lighted by two bomb flares.

NORTH EXCAVATION

(a) A reflectorized barricade was set up on the south side of the excavation, and was lighted by two bomb flares.

(b) The west side of the excavation was protected by one bomb flare.

(c) A reflectorized barricade was set up on the north side of the excavation, and was lighted by two bomb flares.

Upon a recapitulation of the scene of the accident, it appears that six reflectorized barricades, and twelve lighted bomb flares were in place at the end of the day’s work on June 11, 1952.

Site 4. At a point 900 feet north of the north excavation on the west side of the shoulder, a reflectorized sign, bearing the legend “Slow”, was in place, and was lighted by a bomb flare.

At this point, may it be pointed ont that, if the barricades and lighted flares were in place at 1:30 A.M. on June 12,1952, the state would have completely discharged' its duty to the traveling public, and no recovery could be allowed under this complaint. Turning our attention to the condition of the highway at the time of the accident, we find from the record that three witnesses were present, and testified in this proceeding as to such conditions.

Sylvester S. Barenowslri, called as a witness on behalf of the complainant, stated that he was employed by the Whitehouse Trucking Company, and was the driver of the truck at the time of the accident. It is to be noted that he was no longer an employee of the Company at the date of the hearing. He testified that he did not see the barricades, or any lighted bomb flares at Sites 1, 2, and 3, the scene of the accident, dr 4. He stated that it. was raining hard, and that the south excavation was filled with water, and had the same appearance as that of the wet pavement. Further, he stated that his truck and trailer jackknifed after it hit the south excavation, and he was unable to reach his brakes, as he Avas bounced around in the cab of the truck. After the accident, he testified that he found unlighted bomb flares around Site 3, and found one barricade in the excavation, and another along the ditch. He stated he lighted fusees from his truck, and helped Jim Bailey, another Avitness, relight two or three of the Highway Department bomb flares. These bomb flares were so wet that it required the heat from the fusees to dry them off before they would light again.

James R. Bailey of Milwaukee, Wisconsin, called as a Avitness for the complainant, stated that he was driving a gas truck south on Route No. 83, and that he saw the truck of claimant jackknife across the pavement, as lie was approaching. Bailey was a totally disinterested witness, and stated that he had never met Barenowski before the accident, and had not seen him again until the day of the hearing.

He testified positively that he did not see any barricades or lighted bomb flares at Sites 1, 2 or 3, the scene of the accident, but did state that, when he looked north, he could see a lighted flare at Site 4, 900 feet north of Site 3. He stated that he set out fusees from his truck on two occasions, and that he helped Barenowski light two or three of the bombs belonging to the Highway Department. He likewise mentioned the fact that the bombs were drenched, and could only be relit by using the fusees. Possibly the most important aspect of his testimony was that, on arrival at the scene, the police set out additional bomb flares.

Nelson J. Waters was the third and final witness at the scene of the accident, and was called on behalf of respondent. His car struck, or was struck by the claimant’s truck or trailer on the west side of the pavement in the accident area at Site 3. He testified that he was driving south on Route No. 83, and, before he got to the scene of the accident, he saw the lighted barricade at Site 4. He stated he saw the truck jackknife after it hit the south excavation. He further stated that he saw the barricade at the south edge of the south excavation, but that it was not in front of the hole, but was on the east side of the pavement in about" the middle of the lane. He also stated that he saw a barricade at the north edge of the north excavation.

Upon being asked:

"O. Did you notice any bomb flares at or around either excavation as you approached?
A. Whether they were there or not, I do not know. Whether they were burning or not, I do not know. I could see the barricades.
Q. You could see the barricades?
A. Yes, my lights took care of that.”

As has been previously mentioned, Site 3, the scene of the accident, at one time had six reflectorized barriers and twelve lighted bomb flares, yet at the time of the accident two witnesses testified that there were no lighted bomb flares, and one witness said he did not know whether there were any lighted bomb flares. To this is added the sworn and undisputed testimony that Barenowski and Bailey lighted two or three bomb flares, and that the police set out additional bomb flares when they arrived at the scene of the accident.

The Court, therefore, concludes that at the time of the accident none of the twelve bomb flares were in fact lighted, and the only warning device in place was a reflectorized barrier to the right of the south excavation.

The existence, or non-existence of the reflectorized barriers beyond this point is immaterial, for the truck had started to jackknife after hitting the first hole, and it may very well be that the truck or trailer knocked down the other barriers mentioned by Mr. Walters.

The basic question to be answered by this Court is: Had the state discharged its duty to the traveling public by setting out adequate warning signs at the end of the day’s work, or was it obligated to take further precaution to see that the lights and the signs remained in place throughout the night?

As has been pointed out, the weather conditions were inclement. A high wind was blowing, and it was raining very hard. The warning signs, mentioned herein, were mounted on metal tripods, rather than being on any permanent bases. It is conceivable that the high winds blew the tripods over, and the heavy rains extinguished the bomb flares.

The testimony of William C. Beckman, an employee of the Highway Department, is significant. He stated that he set up the barricades, and lit the flares at the end of the day’s work. He was then asked:

“Q. Was it your duty to return to the repair area to check the warning equipment?
A. No."

From a reading of the record, it does not appear that it was the duty of any highway employee to make additional inspections of the repair area after leaving at the end of the day’s work.

The case of Joseph Pomprowitz, Et Al vs. State, 16 C.C.R. 230, is in many respects similar to the case at bar, in that the state had removed a section of the pavement on U. S. Route No. 41, and, at about 4:30 P.M. the following morning, a truck driven by an employee of Joseph Pomprowitz struck the excavation, and overturned. Employees of the state testified that they had set out barricades and flares at the end of the day’s work, but the evidence indicated they were not in place at the time of the accident.

At page 235 of said Report, the Court stated:

“There can be no question that the respondent in the construction, maintenance, and repair of its highways has a duty to exercise reasonable care and caution to prevent injury to or destruction of life and property. Where the respondent, in the course of road repairs, leaves a deep excavation in the highway, it is incumbent upon it to take reasonable measures to guard against injury to the public. Minimum safeguards would be adequate barriers and suitable lights, warning of the hazardous and dangerous situation.”

At page 236, the Court stated:

“The Court is of the opinioin that the respondent was negligent in the performance of its duty to the traveling public by failing to maintain, during the night of August 21 and the morning of August 22, 1954, proper warning of the existence of this dangerous excavation. Respondent cannot meet its obligation to motorists traveling on a busy, four lane highway, in these days of almost continuous commercial and personal motor travel by putting up a single barrier, lighting two or three flares in late afternoon, and returning the following morning with a hope and a prayer that all is well.”

This Court is of the opinion that, when the state removes a section of the pavement, and thereafter leaves the excavation open at the end of a day’s work, it is duty bound to see that adequate warning devices are installed about the work area.

The Court is also of the opinion that, once the warning devices are in place, it is the duty of the state to take reasonable precaution to see that such warning-devices remain in place, and are in working- order.

In the instant case, the heavy winds and rains completely knocked out the warning system, yet no one from the Highway Department made any effort to correct the condition, until after the accident had been reported.

Respondent argues that the complainant is guilty of contributory negligence in that he passed over Route No. 83 a week prior to the accident, and should have noticed that work was being done on the west lane of travel. However, in the absence of any lighted warning-devices, the Court believes that the driver of the truck could reasonably assume the repair work was finished, and that he could proceed along the highway without danger.

In support of its brief as to the adequacy of the warning devices, respondent cites the following cases:

Hubbard vs. State of Illinois, 21 C.C.R. 495.
Terracino vs. State of Illinois, 21 C.C.R. 177.
Beenes vs. State of Illinois, 21 C.C.R. 83.
Mason vs. State of Illinois, 21 C.C.R. 446.
Williams vs. State of Illinois, 21 C.C.R. 597.

In negligence cases the question of law is relatively simple, and the cases usually are decided solely from the facts. In the instant case, we believe that the facts fail to show adequate warning" devices in place and in working order at the time of the accident, as distinguished from 4:30 P.M. in the afternoon of June 11, 1952, and 8:00 A.M. on the morning of June 12, 1952.

The Court, therefore, finds that respondent was negligent in failing to provide adequate warning devices. It further finds that complainant was free from contributory negligence.'

An award is, therefore, made to the Whitehouse Trucking Company for the use of the Hanover Fire Insurance Company in the sum of $2,437.39.