author: Schuman, C. J. Farthing, J.

text:
    (No. 4521
    Mary G. Rieff, Claimant, vs. State of Illinois, Respondent.

      Opinion on motion of Respondent to dismiss filed September 12, 1952.

      Opinion granting award filed March 31, 1953.

    Michael F. Ryan, Attorney for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The Court is called upon to rule on a motion to dismiss in this case on jurisdictional grounds.

The provisions of the Federal Social Security Act amounts to Federal assistance where the State has an Unemployment Compensation Act, which meets with the requirements of the Federal Act. It can be conceded that administrative costs are paid to the State by the Federal Government, but, claimant, although paid from Federal funds, is a State employee.

The claim is predicated on claimant’s unlawful discharge, as found by legal proceedings. This Court has repeatedly held, under such a state of facts, that claimant can recover wages during the period of an unlawful discharge, subject to any affirmative defenses that may be raised by the State.

The basis of the action being an unlawful discharge of a State employee, the Court fails to see any necessity for joining Federal officials, because it makes no difference where the money came from.

The remedy of claimant is based on her rights as a Civil Service employee of the State, as provided by statute. If, as here, it is judicially determined she was unlawfully discharged, her claim arises therefrom, and not from any other source.

The motion to dismiss does not raise any defects appearing on the fact of the complaint, and is not supported by a required affidavit where such defects are not apparent.

If, claimant, on a hearing, is not entitled to an award, the Court could best decide this from the record.

For the reasons above assigned, the motion of respondent to dismiss is denied, without prejudice to raise any of the defects or defenses raised therein in an answer.

Supplemental Opinion

Farthing, J.

On June 28, 1952, Mary G. Rieff filed her complaint, seeking an award for salary she was denied by being unlawfully discharged from her position as an Unemployment Claims Examiner I in the Division of Unemployment Compensation of the Department of Labor of the State of Illinois. The period involved is from December 8,1948 to June 29,1950, both inclusive. When she was discharged, claimant’s salary was $200.00 per month, but salaries for such employees were increased to $220.00 per month effective July 1, 1949.

The file contains for our consideration the complaint, respondent’s motion to dismiss, opinion by this Court rendered September 12, 1952, respondent’s answer, Departmental Report, claimant’s reply to respondent’s answer, claimant’s motion, supported by stipulation, for an extension of time through February 11, 1953 within which to file brief, order granting said motion, transcript of evidence, and the Commissioner’s report.

Mary G. Patlak, formerly Mary G. Rieff, the claimant, was on June 3, 1940 certified and appointed Unemployment Claim Examiner I in the classified service of the Division of Unemployment Compensation of the Department of Labor of the State of Illinois, and continued in that employment until she was discharged on November 30, 1948. She received salary up to December 8, 1948.

On petition of claimant to the Illinois Civil Service Commission, a hearing was had on March 4, 1949, and, on June 20, 1949, the Commission upheld the discharge of claimant.

On July 14, 1949, claimant filed a complaint for judicial review of the decision of the Illinois State Civil Service Commission in the case entitled Mary G. Rieff vs. Illinois State Civil Service Commission, et al, in the Superior Court of Cook County, Illinois, No. 49 S 10283. On June 29, 1950, judgment was rendered reversing and setting aside the discharge of claimant from her Civil Service position. Claimant was reinstated to her former position as Unemployment Claim Examiner I on August 21, 1950.

In case entitled People of the State of Illinois, ex rel, Mary G. Rieff vs. Frank Annunzio, et al, No. 50 S. 17981, in the Superior Court of Cook County, Illinois, a mandamus proceeding for back salary, a judgment order was entered, awarding to plaintiff her back salary from June 29, 1950 to August 21, 1950, at the rate of $220.00 per month, and at the same time retaining jurisdiction as to the balance of plaintiff’s claim for back salary from December 8, 1948 to June 29, 1950.

On November 29, 1951, the court in said cause entered an order, dismissing the case without prejudice concerning the plaintiff’s right to back salary for the period December 8, 1948 to June 29, 1950. In the petition praying for said order, it is alleged that, because of the lapse of the appropriation for the biennium covering plaintiff’s claim, the appropriation was unavailable in mandamus for the payment of her back salary for said period from December 8, 1948 to June 29, 1950.

The record shows that, if complainant had been continuously employed by respondent during the period in question, she would have earned $3,980.04. Her testimony shows that she was employed by various employers during that period, and that she earned a total of $2,852.19. This leaves a difference of $1,127.85, and, since she was unlawfully discharged, this amount should be paid to her.

An award is, therefore, made to the complainant, Mary G. Rieff now Patlak, and against the respondent, the State of Illinois, for $1,127.85.


source: Caselaw Access Project

author: Lansden, J.

license: Public Domain

text:
    (No. 4539
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 31, 1953.

    William A. Schuwerk, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, County of Randolph, Illinois, by the chairman of its Board of County Commissioners and its State’s Attorney, seeks to recover from respondent the sum of $4,058.50. This action is based on a specific statute, which confers jurisdiction on the Court of Claims to hear cases brought thereunder. Ill. Rev. Stat., 1951, Chap. 65, Secs. 37-39; Chap. 37, Sec. 439.8.

The purpose of such statute is to reimburse certain counties in Illinois for expenses, costs, and fees incurred, because of the large volume of petitions for writs of habeas corpus in forma pauperis filed therein. The Counties of Will and Randolph are the principal beneficiaries of such statute.

Such counties have previously been given six awards in this Court, and those cases have decided that certain fees, expenses, and costs are reimbursable under such statute. County of Will vs. State, 18 C.C.R. 189; County of Will vs. State, 19 C.C.R. 192; County of Will vs. State, 20 C.C.R. 105; County of Randolph vs. State, 19 C.C.R. 114; County of Randolph vs. State, 20 C.C.R. 243; County of Randolph vs. State, No. 4491, opinion filed February 6, 1953.

A stipulation of facts has been filed herein, and is hereby approved.

The stipulation discloses that the Illinois State Penitentiary is located in Randolph County. Between January 2, 1952 and December 11, 1952, 285 petitions for writs of habeas corpus were filed in forma pauperis in the office of the Clerk of the Circuit Court of Randolph County by inmates of such institution. None of the petitioners were, at. the time of their commitments, residents of, or committed by any court in Randolph County. In 27 cases the Clerk’s filing fee was paid by the petitioner. Writs were issued, served, and returned, and hearings were held in 113 cases. In each of the 113 cases the Sheriff attended before the Court with the prisoners, and the State’s Attorney of Randolph County represented the People of this State at the hearing. In addition, the Clerk of the Circuit Court was required to furnish a photostatic copy of the petition to the Attorney General of the State of Illinois at a cost of $1.00 per petition.

The above cited cases have decided all of the questions involved in this case, and claimant is entitled to an award as alleged, and in the amount set forth in the complaint.

The Clerk of the Circuit Court of Randolph County was entitled to receive $5.00 for each petition filed, or the sum of $1,425.00, but he did receive $135.00 in 27 cases, leaving a balance of $1,290.00 due, Ill. Rev. Stat., 1949 and 1951, Chap. 53, Sec. 31. In addition, he was entitled to receive $1.00 for photostats in 113 cases, or the sum of $113.00.

The Sheriff of Randolph County was entitled to receive $1.00 for returning each of the 113 .writs of habeas corpus that were issued, or the sum of $113.00; and, an additional sum of $2.50 in each of the 113 cases wherein he attended before the Judge of the Circuit Court with the prisoner, or the sum of $282.50, or a total sum of $395.50, Ill. Rev. Stat., 1949 and 1951, Chap. 53, Sec. 37.

The State’s Attorney of Randolph County was entitled to receive $20.00 for each of the 113 cases in which he appeared at the hearing representing the People, or the sum of $2,260.00, Ill. Rev. Stat., 1949 and 1951, Chap. 53, Sec. 8.

An award is, therefore, entered in favor of the County of Randolph for the sum of $4,058.50.


text:
    (No. 4541
    Henry Atkinson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 31, 1953.

    Henry Atkinson, Claimant, pro se.
    Latham Castle, Attorney General, for Respondent.
   Lansden, J.

On February 19, 1953, claimant, Henry Atkinson, filed his complaint in this Court seeking to recover an award for injuries sustained by him on September 30, 1949, allegedly due to the negligence of respondent, while claimant was an inmate of the Illinois State Penitentiary, Stateville Branch.

Section 22 of the present Court of Claims Act, Ill. Rev. Stat., 1949, Chap. 37, Sec. 439.22, provides that the filing of a claim, unless sooner barred, within two years of its accrual, is jurisdictional “saving to infants, idiots, lunatics, insane persons, and persons under other disability at the time the claim accrues two years from the time the disability ceases”. Weber vs. State, 19 C.C.R. 33, and Auto Electric Co. vs. State, 20 C.C.R. 198.

Although respondent has filed no motion pointing-out that the complaint has been filed too late, since jurisdiction of this Court is involved, and the question of the jurisdiction of this Court may be raised at any time, even by the Court on its own motion, we, therefore, must determine whether we can hear this case. Flynn vs. State, 19 C.C.R. 184.

The complaint, on its face, shows that claimant is not now, and has not, since his claim accrued, been under any disability, which would toll the running of time against him.

It has always been the rule in this Court that confinement in the penitentiary is not such a disability as would toll the running of the statute. McElyea vs. State, 7 C.C.R. 69, Robertson vs. State, 19 C.C.R. 146. The latter case contains a complete discussion of the problem involved herein, and in that case the claim was dismissed, because the former convict therein involved waited too long to file his case.

In view of the foregoing, claimant has filed his complaint too late, and this Court is without jurisdiction to hear it.

The case is dismissed.


author: Tolson, C. J.

text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, April 24, 1953.

    John W. Preihs, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant was injured on February 2, 1936 in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State, 11 C.C.R. 365, in which an award was made to the claimant in the amount of $5,500.00 for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services, expended or incurred to and including October 22, 1940, and an annual life pension of $660.00.

On February 10, 1942, a further award was made to claimant for medical and hospital expenses, incurred from October 22, 1940 to January 1, 1942, in the amount of $1,129.82,

On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942 to December 31, 1942 in the amount of $1,164.15.

On March 15, 1944, a further award was made to claimant for medical and hospital expenses from Jan-nary 1, 1943 to and including September 30, 1943 in the amount of $853.07.

On April 17, 1945, a further award was made to claimant for medical and nursing expenses, incurred from October 1, 1943 to and including February 28, 1945, in the amount of $1,955.29.

On September 12, 1946, a further award was made to claimant for medical and nursing expenses, incurred from February 28, 1945 to and including April 1, 1946, in the amount of $1,646.12.

On June 5, 1947, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1946 to and including April 1, 1947, in the amount of $2,108.30.

On September 22, 1948, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1947 to and including April 1, 1948, in the amount of $2,207.80.

On April 19, 1949, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1948 to and including February 1, 1949.

On May 9, 1950, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1949 to and including February 1, 1950, in the amount of $2,316.09.

On April 10, 1951, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1950 to and including February 1, 1951, in the amount of $2,403.09.

On May 13, 1952, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1951 to and including February 1, 1952, in the amount of $2,889.70.

Claimant has filed her verified petition for reimbursement for necessary nursing expenses, drugs, supplies, and medical care in the amount of $3,441.54, covering the period from February 1, 1952 to and including February 1, 1953, all of which is supported by receipts showing payment in full.

The record consists of the petition of claimant, original receipts for monies expended for medical, hospital and nursing care, waiver of claimant of right to file statement, brief and argument, and waiver of respondent of right to file statement, brief and argument.

The petition discloses that, since the date of the last award, her condition has not improved, that she still is totally paralyzed from the waist down, and that she has no control over her lower limbs, or over her bodily elimination.

The petition further discloses that, because of her • helpless condition, she requires nursing care on a twenty-four hour basis, that she has incurred nurses’ bills in the amount of $885.98, and expenses for room and board of nurses in the amount of $638.75.

The petition further discloses that she has spent the sum of $271.81 for drugs and supplies, and has expended for the services of a physician the sum of $1,645.00.

An award is, therefore, made to claimant for medical, hospital and nursing care from February 1, 1952 to and including February 1, 1953 in the sum of $3,441.54, which has accrued, and is payable forthwith.

The Court reserves for future determination claimant’s needs for future medical care.


text:
    (No. 4512
    Dale Riggins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1953.

    Hershey and Bliss, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Dale Riggins filed his complaint on April 29, 1952 seeking to recover for damages sustained by him in an accident on July 6, 1951, while driving his motorcycle on State Route No. 66, north of the City of Litchfield, Illinois.

The record consists of a verified complaint, original transcript of evidence, copy of transcript of evidence, abstract of evidence, waiver of brief of claimant, and request for oral argument, which request was later withdrawn. No answer was filed by respondent. Therefore, in accordance with Rule 11 of this Court, a general traverse is considered to have been filed.

i On July 6, 1951, claimant was 23 years of age, and was employed by the Illinois Central Railroad Company as a freight agent at Macon, Illinois. On July 6, 1951, he, accompanied by Eldon Huber, was riding a motorcycle in a southerly direction on State Route No. 66, north of the City of Litchfield, Illinois, at a point where old highway No. 66 and new highway No. 66 cross the C. B. & Q. Railroad. As they came from the north, they turned off of new highway No. 66, since the overpass was being constructed over the railroad at that point, and proceeded in a southerly direction on the old highway. After they passed over the overpass on the old highway, and proceeded in a southerly direction, they turned off on a spur road leading to the right. Since the spur was not connected with the new highway, they ran off of the pavement, and had the accident in question. As a result of the accident, plaintiff’s left foot was badly mangled, and he was taken to the hospital in Litchfield, Illinois, where he remained for one month and one day. He was afterwards taken to the Illinois Central Hospital in Chicago, and remained there until October 30, 1951. His left foot was amputated on October 17,1951. His expenses at the Litchfield Hospital, and medical services amounted to $642.00. He was off work for a period of eleven months until June 6, 1952, and his earnings were $325.00 per month.

The crux of this case is whether or not certain warning signs or barricades were in place at the fork in the road, so that the travelling public would not turn to the right, and enter upon a dead end road. The answer to this question will determine whether respondent was guilty of negligence, as charged in the complaint, or whether claimant was guilty of contributory negligence by not heeding the warning signs.

In behalf of the petitioner, six witnesses testified as to the facts and circumstances of the case, and may be summarized as follows:

Claimant, Riggins, testified that he and a companion, Huber, were riding on his motorcycle to Litchfield, Illinois, on July 6, 1951, about 10:00 P.M. He stated the machine was in good working order, was equipped with standard lights, and that he was unfamiliar with the road. He further stated that after passing over the overhead he came to a Y in the road, that he took the right hand spur, and continued to drive upon an apparently good paved road for approximately 170 feet at about 30 - 35 miles per hour, until the road abruptly ended. Both he and Huber were thrown from the motorcycle. He* positively declared there were no barricades or warning signs at the fork of the road to warn him of the dangerotis condition.

Eldon Huber, claimant’s companion, corroborated Riggins’ testimony as to speed, lights, and condition of the road, and stated positively there were no warning signs or barricades at the Y in the road.'

Charles T. Riggins, father of claimant; Lela Rig-gins, mother of claimant; and, Charles F. Riggins, brother of claimant, testified that on July 7, 1951, the day after the accident, they went to the scene, and there were no warning signs or barricades.

Charles T. Riggins further testified that he returned to the scene of the accident on July 12, 1951, and at that time a sign was in place at the fork of the road, and that it bore the inscription “July, 1951”, but no date, and that he took two pictures of the sign, which were introduced into evidence as claimant’s exhibits Nos. 4 and 5. He denied that the sign was so in place on July 7, 1951, when he first visited the scene.

Harold Lehnert, a mechanic from Litchfield, and a stranger to the Riggins family, testified that he drove a wrecker to the scene of the accident about 12:00 P.M. on July 6, 1951, and removed the motorcycle. He stated that he backed the wrecker down the spur to the end of the pavement, and used a cable to drag in the motorcjrcle. He unequivocally stated that there were no warning signs or barricades in place on the night of July 6, 1951.

Three witnesses testified in behalf of respondent, and their testimony may be summarized as follows:

Edward Hoolihan stated that he was employed by the State Highway Department as a maintenance man, that the scene of the accident was part of his territory, and that he travelled his territory once a day to inspect and maintain the road. With reference to the existence or non-existence of the “dead end sign”, heretofore referred to, he elaborated on the usual practices of the Highway Department to first barricade the road, do the work, and thereafter put up the “dead end sign”. He stated that he did not erect signs or barricades, but thereafter maintained them. He testified that he went to the scene of the accident on July 7, 1951 with his immediate supervisor, Thomas Telfer. He stated he did not know when the sign was put up, but concluded that the “sign, the barricade or something” was there on July 6, 1951.

Thomas Telfer, supervisor in the maintenance division, testified that he went to the scene with Edward Hoolihan on July 7, 1951, and that a “dead end sign” and a barricade 16 feet long was in place across the pavement, and that it would not have been possible for Harold Lehnert to back his wrecker off the end of the spur. He further testified that a Mr. Crawley of the Highway Department erected the sign.

L. R. Bailey, a field engineer for the State, identified certain plats, and stated that the barricade was in place in March of 1952, but had no knowledge of its existence on July 6, 1951.

In evaluating this conflicting testimony, the Court is impressed with the testimony of Mr. Lehnert, who was a total stranger. It is also significant that, since questions of the existence or non-existence of the "dead end sign” was so important in this case, Mr. Crawley, who erected the sign at some time, was not called as a witness to testify when the work was performed.

The law is well settled that the State is not an insurer of the travelling public on its highways, and when unexpected hazards occur, which could not have reasonably been foreseen, no recovery is allowable, though injury occur.

However, when the State is in the process of repairing, or, as in this case, removing a highway, it is duty bound to use reasonable care in warning the travelling public of the hazard, which it has voluntarily created.

The Court, therefore, finds from the evidence that the respondent was negligent in failing to erect warning signs, barricades, or other devices on the dead end road involved in this case.

The Court further finds that claimant has established by a preponderance of the evidence that he was free from contributory negligence.

The final point to be decided by this Court is the amount of the award, and in this regard it is to be noted that claimant is seeking $7,500.00.

Respondent has not by its pleading, or otherwise, raised the question of allowable award; hence, the Court must examine the statute in force at such time.

Claimant’s petition alleges he was injured on July 6, 1951. On July 16, 1951, House Bill No. 900 was approved by the Governor, and reads as follows:

“Jurisdiction. 8. The Court shall have jurisdiction to hear and determine the following matters:
C. All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, and all claims sounding in tort against The Board of Trustees of the University of Illinois; 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. The defense that the State or The Board of Trustees of the University of Illinois is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.”

The statute in force prior to such amendment (July 17, 1945) is substantially the same with this important difference — “the award shall not exceed the sum of $2,500.00”.

In construing Section 8 C, this Court has previously held in the case of Gertrude Skaggs vs. State of Illinois, No. 4519, and Shockley vs. State of Illinois, No. 4387, that the date of the injury, and not the date of the award, would determine the amount of the award, and that any cause of action accruing subsequent to July 16, 1951 would be governed by the amended act.

It, therefore, necessarily follows that claimant is ■ limited by the law in force on July 6, 1951.

An award is, therefore, made to Dale Riggins in the sum of Two Thousand Five Hundred Dollars ($2,500.00).


author: Farthing, J.

text:
    (No. 4538
    Reuben F. Burington and Katherine Burington, doing business as Valley Memorial Park, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1953.

    Hollerich and Hollerich, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Farthing, J.

On January 16, 1953, the complainants filed this suit. They seek an award of $140.00, which covers the cost of transporting and erecting 14 headstones over the graves of war veterans now buried in Valley Memorial Park, which is owned and maintained by the complainants.

The file for our consideration contains the verified complaint, and a motion to dismiss the suit.

The complainants cite the 1951 Ill. Rev. Stat., Chap. 21, Sec. 59a, as the basis for their complaint. The section provides that the Adjutant General shall secure the services of a qualified person as Superintendent of War Veterans’ Graves Registration. “It shall also be his duty to prepare requisitions on the Federal Government for headstones when same are desired, and to supervise their transportation from the railroad station to and erection at the grave of the veteran, certifying bill for same to the Adjutant General for payment.”

There is no allegation in the complaint that the claim in suit was ever certified to the Adjutant General for payment by said Superintendent of War Veterans Graves Registration. Paragraph 3 of the complaint alleges that on September 20, 1950 claimants submitted a written bill to the Military and Naval Department, War Veterans’ Graves Registration of this State for $190.00, covering transportation and erection of 19 headstones at $10.00 each. They were paid $50.00, which covered their charges for 5 of the headstones, as shown in paragraph 4.

Complainants’ bill of particulars shows all 14 items are for services rendered in 1948 and 1949.

The respondent’s motion to dismiss is based on the same Rev. Stat., Chap. 37, Par. 439.22, which limits a claimant to two years within which to file his claim against the State of Illinois. Since the suit was filed in this Court on January 16, 1953, these claims are barred by that statute, and the respondent’s motion must be allowed.

This suit is, therefore, ordered dismissed.


author: Fearer, J.

text:
    (No. 4254
    Mary E. Seaton, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1953.

    Mary E. Seaton, widow, et al, Claimant, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On April 18, 1950 an opinion was filed in this cause wherein an award was entered in favor of claimant, Mary E. Seaton. Said opinion was reported in Volume 19, page 174, Court of Claims Reports.

At the time the award was made and entered, claimant had two children, Neil D. Seaton, aged 9, and Mary Constance Seaton, aged 5.

On February 14, 1953 the claimant, Mary E. Sea-ton, remarried, and her present married name is Mary E. Seaton Watts.

It is, therefore, ordered that the award made to the claimant in accordance with the opinion filed on April 18, 1950 be modified as follows: Mary E. Seaton Watts shall be substituted for Mary E. Seaton; and, all future payments, subsequent to the date of her remarriage on February 14,1953, shall be made payable to Mary E. Seaton Watts, mother and natural guardian of Neil D. Seaton and Mary Constance Seaton. In all other respects, the award made, based on the opinion filed on April 18, 1950, shall remain in full force and effect, and be carried out in accordance with said award.

All future payments being subject- to the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary.


text:
    (No. 4495
    James Monroe Kerns, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

      Petition of Respondent for rehearing denied May 18, 1953, Judge Fearer dissenting.

    Flescher and Taylor, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

James Monroe Kerns, a resident of Taylorville, Illinois, 44 years old, and a trucker, filed his claim herein on February 13, 1952, to recover for personal injuries sustained in an accident in Taylorville, Illinois on January 5, 1952 at approximately 3:00 P.M.

The accident occurred at the intersection of State Route No. 48 with the County Building Road and Cheney Street in Taylorville, Illinois. Route No. 48 runs at that point in an easterly and westerly direction, and is a twenty foot concrete pavement with a fifty foot overall right-of-way. It is joined from the north by the County Building Road, which is a paved road, approximately four lanes in width. South of Route No. 48 the street is known as Cheney Street, and. it is a combination gravel, oil and cinder street. The area, where the accident occurred, was under the control of, and was maintained by respondent.

On January 5, 1952, claimant, driving one of his own trucks, came from the north on the County Building Road, and, as he approached Route No. 48, came to a stop at the stop sign. He then shifted into gear, and started across Route No. 48. As his wheels left Route No. 48, he hit a large hole in Cheney Street, which threw him into the top of his cab, onto the steering wheel, and back in the seat. He stated he was temporarily paralyzed in the legs, and that afterwards he was attended by Dr. James Lynch, and that he has a fractured or crushed herniated intervertebral disc in his back.

At the time of the accident the weather was clear, but it had been snowing, and the Cheney Street area, adjacent to the south edge of State Route No. 48, was in a freezing and thawing condition, and was covered with slush; and all holes in such area were filled with water and slush, and thereby concealed.

That there were holes in Cheney Street, starting at the south edge of State Route No. 48, is conceded by every witness in the case. The only fundamental difference in the testimony is as to the depth of the numerous holes.

The record contains numerous statements of witnesses, such as: “The front wheels fell off into a hole”; “The front wheels bounced out”; “I hit that hole”; “It was quite a hole”; “I said it (the hole) must be a dandy”; “It bounced me out of my seat”; “It was a nasty hole”; “We had put cinders there and there were some holes in it”; “They (the holes) dig out pretty fast”; “The shoulder was gouged out from time to time”; “I did notice that it had been very rough”; “I have bounced into the holes”; “I would say it was a little rough”; “There were several holes immediately adjacent with the intersection”; “It was quite rough and there were several holes at that particular intersection”; and, “It (the intersection) was rough. In the winter it digs out in holes.”

Claimant measured the hole his truck hit, and found it to be twenty to twenty-four inches across, and fourteen to eighteen inches deep. Respondent’s witnesses stated that the largest hole was only four to five inches deep, although none had actually made any measurements.

From the foregoing, we conclude that respondent was negligent in the maintenance of the area where the accident occurred, and that respondent had either actual knowledge, or should have had knowledge of the almost continuous deterioration of the area without regular, efficient maintenance. Rickelman vs. State, 19 C.C.R. 54. We further conclude that respondent’s negligence was the proximate cause of the accident.

Any issue of claimant’s contributory negligence was effectively removed from the case by reason of the following questions directed to him, and his answers thereto, to which no objection was made:

“Q. As you crossed there were you using due care and caution?
A. I went fourteen years without an accident. I think that will answer your question.
Q. On this occasion were you exercising due care and caution?
A. Yes, I was.”

Claimant is, therefore, entitled to an award.

As to damages, it is undisputed that claimant has a disc injury; that he has had considerable pain; that he is required to wear a brace; that he cannot perform certain lifting operations; that he still operates his business, but, as before, others do most of the work; that the condition is permanent unless the disc is removed, and a spinal fusion accomplished, which is a major operation with a lengthy period of hospitalization and convalescence; and, that claimant has incurred doctor and hospital bills of approximately $450.00. 1

In view of all the circumstances, we believe claimant is entitled to the sum of $5,000.00.

An award is, therefore, entered in favor of claimant, James Monroe Kerns, in the sum of $5,000.00.


text:
    (No. 4497
    Gene W. Mason, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

      Petition of Claimant for rehearing denied May 12, 1953.

    Musgrave, Ewins, Price and Notz (John H. Hanson of Counsel), Attorneys for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Gene W. Mason, seeks to recover from respondent for its alleged negligence in allowing defects to exist in one of its highways, as a result of which an accident occurred, and claimant sustained personal injuries and damages to his property.

The scene of the accident was in Cook County on State Highway No. 21, commonly known as Milwaukee Avenue, a short distance north of Dempster Street, and almost in front of the Ballard Road Highway Police Station. Milwaukee Avenue at such place was controlled and maintained by respondent.

On July 5, 1951, at about 7:30 A.M., claimant and his brother were returning to Chicago from a holiday trip to Wisconsin. Each was riding a motorcycle, and claimant was leading at a speed of about 50 miles per hour. Claimant struck some defect in the highway, which upset his motorcycle, and caused his injuries and damage to his property. The brothers had traversed the same road on July 3,1951 going north to Wisconsin.

The Departmental Report of the Division of Highways, which was admitted in evidence, reads as follows:

“On and prior to July 5, 1951, that part of State Bond Issue Route No. 21 (Milwaukee Avenue) between River Road on the north and Harlem Avenue on the south was under contract for repairs, widening, and resurfacing. Two contracts were involved — the first for patching and widening, and the second for resurfacing.

The work was proceeding from north to south, and active work of either contractor had not reached as far south as Ballard Road by July 5, 1951.

Immediately south of River Road on the west shoulder of the highway a Division of Highways’ Standard X-13 sign was erected in April, 1951, and was in place on July 5, 1951. This sign is 72" x 96" in size, and bore the following legend:

Route 21
Chicago — River Road Under Construction Patching, Widening and Resurfacing This road is being kept open for your convenience DRIVE WITH CAUTION

In addition to, and to the south of the foregoing sign, another Standard S-20A was erected. This sign is 36" x 36" in dimension, and bore the legend “ROUGH ROAD.” This sign was erected in April, 1951, and remained in place until August, 1951.

Reflectorized signs 36" x 36" with the legend “ROUGH ROAD” were erected at the following intersections, in addition to River Road and Harlem Avenue: Oakton Street, Central Avenue, Dempster Street, and Golf Road (S.B.I. 58). These signs were erected in April, 1951, and were in place on July 5, 1951. At each intersection the sign to warn south bound traffic was erected on the west highway shoulder, approximately 200 feet south of the intersecting road.”

Although it is conceded that there was some defect in the highway at the scene of the accident, the witnesses, who testified in the case, were unable to agree as to the exact nature of the defect.

Claimant and his brother said it was a low bump, which was first noticed 30 feet away. However, claimant finally said there were a series of bumps. Another witness said the bump was about seven inches high and quite sharp. Other witnesses, one of whom saw the accident at some distance, testified that there was a hole in the highway, and not a bump.

However, the precise defect is not of vital importance in this case, because claimant himself testified that Milwaukee Avenue between River Road and Harlem Avenue “generally it was a no good road”.

Under such circumstances, it was incumbent upon claimant to traverse the particular stretch of highway with care commensurate with the known danger, and, failing to do so, especially after respondent had placed warning signs at various intervals, claimant cannot recover. Previous decisions of this Court have uniformly denied recovery in factual situations similar to that developed by the testimony in this case. Beenes vs. State, No. 4377, opinion filed October 5, 1951; Terracino vs. State, No. 4420, opinion filed January 8, 1952; Doolittle vs. State, No. 4353, opinion filed September 7, 1951; Bodie vs. State, No. 4474, opinion filed March 20, 1953.

An award to claimant must be, and hereby is denied.


text:
    (No. 4531
    Helen Walters, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1953.

    Helen Walters, Claimant, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Farthing, J.

The claimant, Helen Walters, filed her complaint on October 20, 1952. There is no material variation of any material fact between her complaint and the Departmental Report made by the Division of Highways, dated January 20, 1953.

The proof shows that on June 17, 1952, about 3:00 P.M., Helen Walters was driving her 1950 Nash sedan in a westerly direction on 111th Street in Chicago. As she approached the intersection with Long-wood Drive, there was in front of her car a platform truck used by respondent’s Department of Public Works and Buildings, Division of Highways, which truck had on board a 50 gallon metal drum of white centerline paint. At the point in question, the highway rises towards the west, and the grade is rather steep. The truck stalled near the top, and started to roll backward. The truck driver applied his brakes, and stopped his truck suddenly, which caused the 50 gallon drum of paint to be thrown off of the truck. The drum struck the pavement and burst, throwing paint upon claimant’s automobile, the inside of the car, the windows of which were open, as well as on claimant’s dress.. At that moment, Helen Walters was about to pass the truck on its left. Claimant was compelled to expend $151.00 for cleaning and refinishing her car, and for new seat covers, but her Insurance Company paid $138.00 of that amount, so that her cost was only $13.00. She wore a new shantung dress, which was ruined, and was valued at $30.00. While her car was being repaired, she was compelled to pay $17.50 for transportation to her work. This makes a total of $60.50, and an award is hereby made in favor of claimant for that amount.


text:
    (No. 4323
    Harrison Allen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, March 20, 1953.

      Motion of Claimant for new trial and petition for rehearing denied June 26, 1953.

    John R. Snively, Attorney for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Harrison Allen, seeks to recover from respondent for alleged negligence, as a result of which a portion of the second toe on claimant’s left foot had to be amputated.

On August 1, 1948 claimant was an inmate at the Illinois State Penitentiary at Joliet, Illinois, serving an indeterminate sentence for robbery. On that day, which was a Sunday, claimant was working in a detail with other inmates cleaning up rubble, broken stone and concrete, and loading the material into a dump truck. Claimant and another inmate picked up a piece of broken concrete weighing over one hundred pounds, and lifted it up over the edge of the body of the truck. But, instead of resting on the truck, the block of concrete slipped off, and, since claimant’s left foot was caught in some projecting bolts, he was unable to get out of the way of the falling concrete, which landed on his left foot, and injured it to such an extent that amputation was required of one joint and part of another of the second toe of his left foot.

Claimant’s complaint is in two Counts, the first of which alleges five negligent acts or omissions on the part of respondent.

The first charge of negligence is that claimant was ordered to work under unsafe conditions. The evidence shows the conditions to be usual and customary for the work to be performed, and, therefore, not unsafe.

The second is that claimant was not instructed as to his labor, and warned of the dangers thereof. This charge fails, because the labor to be performed was the commonest of manual labor, and, if there were any dangers, they would be as readily apparent to claimant as to respondent.

The third and fourth are that respondent failed to provide adequate or proper safeguards. For labor of the type performed by claimant and in its particular place, we are unable to ascertain what safeguards were lacking, which would render respondent liable.

The fifth is that claimant was not furnished ade-z quate help or assistance. Aside from the fact that the record shows no additional help was needed by claimant, almost unlimited manpower is one asset that exists at every penitentiary, and was available, if claimant had requested help.

We conclude that not only was negligence not proven under Count I, but that claimant himself can be charged with contributory negligence. We do not decide whether the doctrine of assumption of risk’applies.

The second Count of the complaint is based on a statute, which claimant maintains was violated by his working on Sunday. This statute, Ill. Rev. Stat., 1947, Chap. 108, Sec. 78, reads in part as follows:

“Sec. 78. Eight hour day prescribed—
Use of machinery
The Department of Public Safety shall, so far as practicable, cause all the prisoners in said institutions, who are physically capable thereof, to be employed at useful labor, not to exceed eight hours of each day, other than Sundays, and public holidays, ....’’

However, there is another statute that relates to work on Sundays, Ill. Rev. Stat., 1947, Chap. 108, Sec. 31, which reads as follows:

“Sec. 31. Sunday
Facilities for attending religious services regularly on Sundays shall be ■ afforded each convict, so far as the same can be done judiciously, and upon no pretext shall a convict on contact be required to labor on Sunday, nor shall any convict be required to do other than necessary labor for the State on that day.”

Aside from the fact that the record shows that claimant volunteered to work on Sunday, which might well constitute a waiver on his part of the benefits, if any, of Section 78 quoted above, we are of the opinion that for security reasons, and for the further reason that the construction in progress on week days could proceed more rapidly, the work claimant performed constituted “necessary labor for the State”.-

The record shows that rubble, resulting from demolition of a building by a private contractor, was cleared away by convicts on Saturdays and Sundays, when employees of the contractor did not work, and thereby there was no mingling of convicts with outsiders. This clearing up was not only necessary to the construction project, but also could only be performed by convicts on Saturdays and Sundays for security reasons.

Sections 78 and 31 should be construed together. One prohibits more than eight hours labor on any day, and the other limits labor on Sundays to necessary labor for the State. If the two statutes are in conflict, Section 78, as far as Sunday work is concerned, must yield to Section 31.

We, therefore, hold that claimant cannot recover on Count II of his complaint.

An award to claimant must be, and hereby is denied.


author: Delaney, C. J. Tolson, C. J.

text:
    (No. 4500
    Kay Lipscomb and Joseph Lipscomb, Claimants, vs. State of Illinois, Respondent.

      Opinion filed, December 19, 1952.

      Petition of Claimants for rehearing denied March 20, 1953.

      Motion of Claimants for new trial allowed March 30, 1953.

      Motion of Respondent to vacate order of Court handed down on March 30, 1958 allowed June 26, 1953.

    John B. Harris, Attorney for Claimants.
    Latham Castle, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, C. J.

Claimants in this cause are husband and wife. They lived at 3008 East Twenty-third Street in Granite City, Illinois on August 27, 1951, the date Kay Lipscomb fell, and received the injuries for which suit was filed with this Court on February 27, 1952.

East Twenty-third Street in the City of Granite City (formerly City of Nameoki) is designated in the Department of Public Works and Buildings, Division of Highways’ records as State Aid Route No. 9, Madison County, Section 62-15d. The pavement on this section was originally constructed by Madison County, and was taken over by the State in 1934 for purposes of maintenance.

The area in the vicinity of the 3000 block on East Twenty-third Street was subdivided, and sidewalks installed prior to the highway improvement made by Madison County. The roadway improvement consisted of a concrete pavement twenty feet in width, and shoulders ten feet wide on each side of the pavement. A berm, six feet in width, exists between the outside edge of the shoulder and the existing concrete sidewalk, which is four feet wide.

On August 17, 1951, an agreement was reached between representatives of the Division of Highways and the City of Granite City whereby the Division of Highways would install four subsurface drainage inlets and two culverts, finish blade earth shoulders, and, after an asphalt treatment of shoulders was made by the City of Granite City, spread 3/8-inch chips on the asphalt.

The shoulders on the section of highway herein referred to, which includes the portion adjacent to claimants’ dwelling, was bladed by a special maintenance crew on August 1, 2, 3, 6, 7, 8, 15 and 20, 1951. Regular maintenance work was done during this same period. Rain was recorded during the month of August, 1951 in the East Twenty-third Street area, including some precipitation on both August 26 and 27, 1951. Difficulty was experienced in maintaining the highway shoulders in a smooth and unrutted condition because of rain, and the constant use of the shoulders by commercial and passenger vehicles. Many adjacent property owners or tenants, who did not have private garage facilities, used the highway shoulders and berms for parking purposes during the day and night.

Mrs. Lipscomb is a housewife, and her husband’s work shift on the date of the injury was from 11:00 P.M. until 7:00 A.M. The fall and resultant injuries occurred at approximately 9:00 P.M. Mr. Lipscomb owned a 1948 Plymouth Coupe, which the claimants were in the habit of parking in front of the apartment building where they lived. The claimants parked their automobile on the dirt berm, which would make the right door of the machine open onto the sidewalk. The vehicle was parked in this position at the time Kay Lipscomb fell. The photographs show a great deal of water behind the car, but none on the left side, in front, or on the right side. It appears from these pictures that it would have been possible, and, undoubtedly the best way under the circumstances, to have entered from the right side. It would not have been necessary for Mrs. Lipscomb, a woman of 64 years of age at the time of the accident, to have walked through any mud or water to board the car in that manner. A second alternative, apparent from the pictures, was for Mrs. Lipscomb to have walked on the sidewalk past the right hand side of the car, and then to have passed around the car from the front. The pictures indicate that the area in front of the car was smooth, level and had no water standing. Mrs. Lipscomb knew it had been raining all day, and the day and night before. She also knew the area, where she was attempting to walk at the time she fell, was slick and muddy.

In the Appellate Court case of Swalm vs. City of Joliet, 219 Ill. App. 123, involving a claim for damages based upon an alleged fall on a sidewalk, the Court said, at page 131 thereof, as follows:

“While it is true that when one walks over a walk, which he knows to be dangerous, he must use care commensurate with the known danger, and that a greater amount of care is required under such circumstances than is required from pedestrians ordinarily.”

And at pages 128 and 129:

“It is undoubtedly the law that one who uses a public street, and is familiar with its conditions, must use reasdnable care in proportion to the danger, if any, known to him. What constitutes reasonable care in any given case depends on the circumstances of that particular case. If one knows of the dangerous condition of a sidewalk, that fact would call for the exercise of a greater amount of care than would be required in the absence of such knowledge. The amount of care required of pedestrians on public streets varies, and depends on the circumstances of each particular case, but the degree of care required never varies, and is always reasonable care. City of Spring Valley vs. Gavin, 182 Ill. 232; Village of Jefferson vs. Chapman, 127 Ill. 438.”

The record consists of the complaint, motion of respondent for an extension of thirty days in which to file pleadings, order of Chief Justice granting respondent an extension of time to April 27, 1952 in which to file pleadings, Departmental Report, original transcript of evidence, copy of transcript of evidence, stipulation re medical bills, abstract of evidence, motion of claimants for an extension of twenty days from July 30, 1952 within which to file brief or memorandum of authorities, order of Chief Justice granting the motion of claimants for an extension of twenty days from July 30, 1952 within which to file brief or memorandum of authorities, memorandum of claimants, statement, brief and argument of respondent, and reply memorandum of claimants.

Under the circumstances of this case, we feel claimant has not proven due care and caution. It is the duty of persons on the public streets to exercise reasonable care, and when one fails to use ordinary precaution, weather conditions considered, such conduct is by the general knowledge and experience of mankind considered as negligence.

For this reason, the claims of Kay Lipscomb and Joseph Lipscomb will be denied, and their complaint dismissed.

Supplemental Opinion

Tolson, C. J.

On December 19, 1952, an opinion of this Court was entered denying an award to- claimants on the ground that claimant failed to show due care and caution in her own behalf.

On January 15, 1953, claimants filed a petition for rehearing setting forth certain allegations of matters that the Court had overlooked or misapprehended.

On March 30, 1953, claimants filed a motion for a new trial setting forth five allegations; the first three are substantially the same as those filed under the petition for rehearing; the fourth and fifth allegations are as follows:

“(4) Other evidence is available to the claimants, which will remove any doubt that the claimant, Kay Lipscomb, was not guilty of contributory negligence, and that she was in the exercise of reasonable care immediately before and at the time she sustained the injuries in question.
(5) If a retrial or rehearing of this case is granted, claimants will be in position to produce, and will produce the evidence referred to in the preceding paragraph, and will show the existence of facts not previously shown, which will make it evident that said claimant was in the exercise of reasonable care at the time she sustained her injuries.”

On March 30, 1953, an order was entered by one of the members of the Court, denying the petition for rehearing, but ordering a new trial, and directing that the matter be referred to a Commissioner for further hearing.

On April 24, 1953, respondent filed a motion requesting the Court to vacate the order entered on March 30, 1953, authorizing the new trial, for the reason that paragraphs four and five, heretofore set out in full, in the motion for a new trial were insufficient in fact or law to justify such.an order.

The basis for a new trial is found in Rule 27 of the Court of Claims.

“When a decision is rendered, the Court, within thirty (30) days thereafter, may grant a new trial for any reason, which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial.”

A new trial may be granted for many reasons, but, when the request is based on an allegation of newly discovered evidence, the Courts of this State have laid down the following rules:

“Applications for a new trial on the ground of newly discovered evidence, in order to justify its allowance, should fulfill the following requirements: (1) The evidence must appear to be such as will probably change the result, if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; and (5) it must not be merely cumulative to the evidence offered on the trial.”
People vs. Williams, 242 Ill. 197.
People vs. Tillman, 383 Ill. 560.

It is further required by Affidavit of Witnesses, relied upon to make the new proof, that the testimony has been discovered since the trial, so that no laches are imputable to the party, and that the new testimony is so material and conclusive that it will probably lead to a different result.

Janeway vs. Burton, 201 Ill. 78.

People vs. Dabney, 315 Ill. 320.

Paragraphs four and five, heretofore set forth in full, do not comply with the requirements of law in the matter of applications for new trials on the basis of newly discovered evidence, and the motion to vacate the order of March 30, 1953, granting a new trial, must be allowed.

It is therefore ordered, adjudged and decreed that the order of March 30, 1953, granting a new trial be, and the same is hereby vacated.


text:
    (No. 4552
    Richard F. Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 26, 1953.

    Malo, Nelson, Brock and Shearon, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Farthing, J.

We have for our consideration in this case the complaint, the motion of respondent to dismiss the complaint, and brief and argument of respondent.

The facts, well pleaded, must, of course, be taken as true. In brief they show that claimant was arrested on January 24, 1952, and the next day information was filed in the County Court of Iroquois County, Illinois charging him with violation of Sec. 131 of the “Uniform Act Regulating Traffic on Highways”. He was tried in said Court, convicted, and fined on January 28, 1952. He paid a total fine of $1,472.80 on that day.

He was discharged, but later on February 7, 1952 he filed a motion in arrest of judgment, and this motion was allowed by the Court on November 20, 1952.

The money for said fine had been paid by claimant to the Clerk of the County Court, and by him remitted to the State Treasury.

No statute is cited making provision for repayment of a fine voluntarily paid. Such a voluntary payment is made under a mistake of law, if it develops later that the fine should not have been imposed.

This Court dismissed the suit in Potter vs. State, 18 C.C.R. 1. In that case there had been an appeal, and a holding that no violation of Illinois law had in reality been charged against Potter in the prosecution. His fine and costs were ordered repaid. He had paid the fine and costs, and the money had been paid into the State ¡Treasury, just as in the instant case.

Similarly, when a fee or tax is paid voluntarily, with knowledge of the facts, it cannot be recovered in the absence of a statute authorizing such recovery. Great American Ins. Co. vs. State, 19 C.C.R. 91; American Can Co. vs. Gill, 364 Ill. 254.

The County Court of Iroquois County lost jurisdiction when the fine and costs were paid. The payment was made under a mistake of law, and was voluntary.

Respondent’s motion to dismiss this cause must, therefore, be, and it is hereby allowed.


text:
    (No. 4442
    Nova Casey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 17, 1953.

    John W. Fribley, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Nova Casey, filed his claim herein on June 1,1951 for an injury, which occurred on December 5, 1950. .

On the day of the accident claimant was fifty-three years of age, married, but had no dependent children under eighteen years of age. At the time of the accident, he was employed by the Department of Conservation as a carpenter at the rate of $1.50 per hour, and was working forty hours per week. The maximum rate of compensation at that time for claimant was $22.50 per week.

Findings of fact have been made, and an award ordered under Section 19b of the Workmen’s Compensation Act. Also, an order was entered to pay medical and court reporter’s fees.

The award, referred to under Section 19b of the Workmen’s Compensation Act, which was entered on the 13th day of November 1951, granted claimant 38 2/7 weeks temporary total compensation at a rate of $22.50 per week, or a total of $861.43. There was also an award made at said time for $22.50 to be paid to Dr. E. P. Staff, and the court reporter’s fees were ordered paid to James Moliski, his charges being $54.10.

Jurisdiction was reserved in this cause for the entry of a final order after a final hearing. A final hearing was had, and findings of fact made.

There was an agreement between the parties that claimant, Nova Casey, would submit himself to examination by Dr. Fred C. Reynolds of St. Louis, Missouri. X-Rays were taken by Dr. Wendell G. Scott. A medical report was filed in this cause in the clerk’s office on July 10, 1953.

The Court has reviewed the file containing all the evidence taken at previous hearings, as well as at the time of the final hearing. Medical reports and the testimony offered by Doctors at said hearing have also been examined.

After due consideration, it is the opinion of this Court that claimant is not entitled to a further award for temporary total compensation. Awards for medical expenses not heretofore paid are hereby made as follows: Dr. Fred C. Reynolds, $25.00; Dr. Wendell G. Scott for X-Rays, $20.00. The fee of $11.90 for the transcript of testimony at the final hearing, which was taken by Betty J. Beveridge, is also allowed.

It is further the opinion of this Court that an award should be made to claimant for the specific loss of 1/3 of the use of his left foot in the sum of $1,012.50.

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”.


text:
    (No. 4091
    Bertha Millie Weaver, Widow, Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1953.

    Joseph M. Williamson, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On November 9, 1948, an award in favor of Bertha Millie Weaver, widow, and Eugene F. Weaver, a minor, was entered in the sum of $5,785.00, which case was reported in 18 C.C.R., page 72. Jurisdiction was specifically reserved by the Court for the entry of such further orders as might be necessary.

The award, among other matters, found that Eugene F. Weaver was a minor child of the decedent, Lee C. Weaver, being born on September 27, 1934. The widow, Bertha Millie Weaver, was found to be entitled to the sum of $5,200.00, and, by reason of the existence of a minor child, the award was increased to the amount of $5,785.00.

On August 13, 1953, respondent filed a motion to modify the award because of the fact that Eugene F. Weaver had attained the age of eighteen on September 27, 1952, and in its motion also alleged that the said child was physically and mentally competent.

In compliance with our opinion in Corcoran vs. State, 19 C.C.R. 159, we, therefore, compute the modification of the award as follows:

As of September 26, 1952, $4,407.00 should have become due and payable to claimant, which represents 76.18% of the total award. Since the child has now become eighteen years of age, the balance of the award made to claimant must be reduced by the remaining percentage of the award made for the benefit of the child, or 23.82% of $585.00, or $139.35.

At the present time, the records in the Finance Department reflect a balance, due and payable to claimant, of $676.00, which must be reduced by $139.35, or $536.65. The latter amount is to be paid to claimant in 27 weekly installments of $19.50, beginning on June 12, 1953, with one final payment of $10.15.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary. This opinion is not to be construed as eliminating Eugene F. Weaver forever from a possibility of participating in the award. In the event of the death or remarriage of his mother, Eugene F. Weaver would be entitled to the unpaid balance of the award. Waechter vs. Ind. Com., 387 Ill. 256; Swift & Co. vs. Ind. Com., 288 Ill. 132; Beckemeyer Coal Co. vs. Ind. Com., 370 Ill. 113; Swift & Co. vs. Ind. Com., 309 Ill. 11. The rights of Eugene F. Weaver were fixed prior to his reaching the age of eighteen, and his rights can never be extinguished as long as any amount remains unpaid under this award, as modified.


text:
    (No. 4438
    Grace R. Sitter, Widow, Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1953.

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

On January 8, 1952, an award in favor of Grace R. Sitter, widow, and Shirley Ann Sitter, a minor, was entered in the sum of $6,675.00. This case has not as yet been published in the Court of Claims Reports. Jurisdiction was specifically reserved by the Court for the entry of such further orders as might be necessary.

The award, among other matters, found that Shirley Ann Sitter was a minor child of the decedent, Bon Sitter, being born on January 10, 1935. The widow, Grace R. Sitter, was found to be entitled to the sum of $6,000.00, and, by reason of the existence of a minor child, the award was increased to the amount of $6,675.00.

On August 13, 1953, respondent filed a motion to modify the award because of the fact that Shirley Ann Sitter had attained the age of eighteen on January 10, 1953, and in its motion also alleged that the said child was physically and mentally competent.

In compliance with our opinion in Corcoran vs. State, 19 C.C.R. 159, we, therefore, compute the modification of the award as follows:

As of January 9, 1953, $2,089.29 of the original award had become due and payable to claimant. These payments amount to 31.3% of the total' award of $6,675.00. Since the minor child has now become eighteen years of age, the balance of the original award must be reduced by the remaining percentage of the award made for the benefit of the child. 68.7% of the minor’s award amounts to $463.72. The balance of the original award at the present time amounts to $4,486.07, which must now be reduced by $463.72, leaving a new balance of $4,022.35.

The award, heretofore entered, is, therefore, modified, and the sum of $4,022.35 shall be paid to claimant at the rate of $22.50 per week for 178 weeks as of February 11, 1953, with one final payment of $17.35.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary. This opinion is not to be construed as eliminating Shirley Ann Sitter forever from a possibility of participating in the award. In the event of the death or remarriage of her mother, Shirley Ann Sitter would be entitled to the unpaid balance of the award. Waechter vs. Ind. Com., 387 Ill. 256; Swift & Co. vs. Ind. Com., 288 Ill. 132; Beckemeyer Coal Co. vs. Ind. Com., 370 Ill. 113; Swift & Co. vs. Ind. Com., 309 Ill. 11. The rights of Shirley Ann Sitter were fixed prior to her reaching the age of eighteen, and her rights can never be . extinguished as long as any amount remains unpaid under this award, as modified.


author: Wham, J.

text:
    (No. 4529
    Lillian Kamin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, September 25, 1953.

    Gariepy and Gariepy, Attorneys for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Wham, J.

This is an action brought by the claimant, Lillian Kamin, against the respondent, State of Illinois, to recover $2,500.00 in damages for personal injuries, which she sustained on August 26, 1952, when she fell from a nature path, or trail, into what is known as “French Canyon” in Starved Rock State Park, while on a hike conducted by a State employed nature guide.

She charges in her complaint filed herein that her fall and resulting injuries were caused by the instructions and directions of the guide, and contends in her brief and argument that respondent was negligent in constructing the path in an unsafe manner, failing to erect guard rails between the pathway and the edge of the canyon, and inviting her to use the path without warning her of the dangerous condition of the path and proximity of the canyon.

It is respondent’s position that the only duty owed to claimant was to refrain from wilfully and wantonly injuring her; that, even if it was under a duty to use reasonable care toward claimant, it was guilty of no negligence causing such injuries; that said injuries resulted from claimant’s own lack of care, or, through the lack of care on the part of some third person over whom respondent had no control; and, that claimant assumed the obvious risks encountered on said hike.

The facts concerning the happening of the accident, as shown by the evidence, are as follows:

Claimant, Lillian Kamin, forty-five years of age, and her husband were on vacation. They were staying at the Starved Rock Lodge, located in Starved Rock State Park, Utica, Illinois, during three days in August, 1952, where they had stayed on previous occasions. At about 10:15 A.M., on August 26, claimant, accompanied by her husband, and some 35 to 40 other people, including A1 Shea, a guide employed by the respondent at Starved Rock State Park, started a hiking tour to French Canyon in said park. Claimant was dressed in sport clothes, including low heeled shoes. The day was warm and clear, the trails were dry, and the hiking conditions were good. The group, including claimant, formed a single file behind the guide, and followed him along the trail. After walking for some 15 minutes, a distance of about a quarter of a mile (a half of said distance on a narrow sandstone path about two feet wide), the group reached a point near the brink, or edge, of French Canyon. Claimant testified that she was walking on the stone path directly behind her husband, and approximately 15 or 16 persons back from Mr. Shea, when he fell into the canyon, and, that the path upon which she was walking then gave way, causing her to also fall into the canyon some 12 to 15 feet below the path. She further testified that her husband was not touching her, and did not pull her down, but that “The earth gave way and we fell”. She identified claimant’s exhibit No. 8, a photograph taken by her son a day or so after the occurrence in question, as a correct representation of the path at the point from which she fell. Other photographs of the path were admitted in evidence, and attached to respondent’s exhibit No. A, being a part of the Departmental Report. Claimant’s husband was not injured, and did not testify.

The undisputed facts show that there was no guard rail at the edge of the canyon. The Departmental Report states that the canyon was marked clearly, and posted along the trail 20 feet before reaching the point of the accident. It further states that the condition of the trail at the point where- claimant fell is the same as it was the day of the accident, and that conducted hiking tours are taken over the same trail every week end.

The photographs, admitted in evidence, indicate that this is a natural unimproved nature trail, or path, through a wooded rocky area.

Claimant testified that, prior to starting on the hike, it was announced in the lodge that A1 Shea would guide the group on a new route to French Canyon; that he told the group to follow him down the path, and to stay on the path. She further stated that she had no fault to find with Mr. Shea as an individual, and stated that they were not being guided too fast.

The only evidence offered by respondent concerning the happening of the accident and description of the trail is the Departmental Report, which under Rule 16 of the Rules of the Court of Claims, is prima facie evidence of the facts set forth therein.

The facts, contained in said Report, conflict in certain respects with claimant’s testimony. The guide, A1 Shea, stated therein that after the group had proceeded down seven natural sandstone steps, which led to the trail and the stream-bed of the canyon, and were waiting for the last two couples on the hiking tour (claimant, her husband, and another couple), he glanced back, and saw claimant’s husband standing on the narrow trail at the bottom of the steps with his back to the canyon, and assisting claimant down the steps. As he, the guide, conversed with the members of the party, he heard the snapping of twigs and branches at the point of the accident, and, looking back toward the two couples, saw claimant’s husband sliding over the edge of the canyon, and claimant actually flying through the air, as though she had been pulled or pushed by force.

The condition of the sandstone steps is described by the guide in this portion of the Report as being “not wet . . . but are hazardous due to the loose sand that wears off of the sandstone”. These steps are further described as “eroded naturally in sandstone”.

In the report of Mr. John A. Heitmann, custodian of Starved Rock State Park, to the State Superintendent of Parks, which was made a part of the Departmental Report, it is stated that claimant’s husband was assisting her down some natural stone steps on the trail above French Canyon at a point where it was narrow, that he stepped back from the trail into soft dirt at the edge of the canyon, lost his balance, and fell, pulling claimant with him to the bed of the canyon.

In the Accident and First Aid Report, also signed by John A. Heitmann, and incorporated in the Departmental Report, under the portion thereof headed “State in Patient’s Own Words Where and How Accident Occurred”, it is stated as follows: “Mrs. Kamin slipped on the trail, while receiving assistance from her husband, causing him to lose his balance, and both parties fell a distance of 10'”.

Claimant objects to consideration being given to the report of the custodian, Heitmann, to the Superintendent of Parks, for the reason that it is based solely upon the report of the guide, and contains conclusions, in addition to the facts given him. We agree with claimant, and will not consider that portion of the report, which is based on conclusions, rather than facts. We will, however, consider the report of the guide, inasmuch as it contains facts, rather than conclusions.

Claimant also objects to consideration being given to the facts set forth in the Accident and First Aid Report on the grounds that it conflicts with the custodian’s report to the Superintendent of Parks. We do not consider this to be a well founded objection. The First Aid Report purports to represent claimant’s own version of the accident at the time it was made, and whether or not it conflicts with respondent’s version of the accident is immaterial. Such First Aid Report will be considered by this Court.

Respondent contends that claimant was, at the time and place of her injury, a mere licensee on respondent’s property, and that respondent owed her no duty except to refrain from wilfully and wantonly injuring her. Respondent bases its contention on the rule of law that distinguishes a licensee and a business visitor in regard to privately owned property. We find no quarrel with this distinction in the cases cited, but do not consider such to be the rule under the facts presented in this case. Here the State of Illinois was operating a public nature park for the benefit of the people of the State. The park and trails were open for use by all persons, including the claimant, whether or not they were paying guests at Starved Rock Lodge. The State of Illinois employed the nature guide to conduct tours and hikes through the park, including the hike in which claimant participated.

The courts of Illinois in actions for injuries to patrons of public parks, owned by municipalities, have denied recovery for negligence on the part of park employees upon the doctrine of governmental immunity. Lythell vs. City of Waverly, 335 Ill. App. 397. The same theory has been followed by this Court in cases involving claims for injuries to patrons of State parks. Berg vs. State of Illinois, 12 C.C.R. 79. The 1945 Court of Claims Act, however, has abolished this defense as to suits against the State of Illinois.

Those States, which have refused to apply the doctrine of governmental immunity in actions against municipalities for injuries sustained in public parks, have required such municipalities to exercise ordinary and reasonable care toward the public using such parks. 29 A.L.R. 868, 63 C.J.S., Municipal Corporations, Sec. 907 at 319 and 320.

There have been several cases involving suits for personal injuries against the State of New York for injuries sustained in its parks, and the New York courts have held that, although the State is not an insurer of the safety of those who make use of the park facilities, the State must exercise reasonable care in the maintenance of its parks, and in supervising the use thereof by the public. Mitchell vs. State, 85 N.Y.S. 2 (d) 80; Pope vs. State, 96 N.Y.S. 708. And, it has been held to be so, irrespective of whether a fee was charged the public. Smyke vs. State, 117 N.Y.S. 2 (d) 163. This rule appears to us to be just and reasonable, and it is our holding that in the present case the respondent owed the claimant the duty to exercise, through its agent and servant, A1 Shea, the guide, reasonable care in conducting the hike to French Canyon, and through its agents and servants generally, the duty to exercise reasonable care in establishing and maintaining the path, or trail, over which the conducted hiking tour was taken under the direction of the guide.

In determining whether or not the State of Illinois has failed to exercise reasonable care in the establishment and maintenance of the pathway, and, whether or not in the exercise of reasonable care it should have erected a guard rail at the place of the accident, as contended by claimant, we must consider the location, character, use and purpose of this path and portion of the park. Obviously, from the testimony and the photographs admitted in evidence, this pathway was established as a trail for those interested in hiking through rough country in a natural state, and was not intended to be used for ordinary pedestrian travel, as is a sidewalk in a city.

Although there might well be certain sidewalks in Starved Rock State Park, the use of which are designed for ordinary pedestrian travel, and which the State might well be required to maintain in the same manner and condition as a city is required to maintain its sidewalks, the nature path herein involved is not one of these.

The rule governing the establishment and maintenance even of city sidewalks is one that varies with the location, character and extent of the use to which they are put. In Thien vs. City of Belleville, 331 Ill. App. 337, the court sets forth the following rule at page 345:

“. . . .The degree of care which a city is required to exercise to keep its streets and sidewalks in a reasonably safe condition varies according to the location, character and extent of the use to which they are put. No arbitrary rule can be laid down as to defects in highways or streets for which municipalities will be liable, or as to the degree of care required of the person injured.”

In the case of Boender vs. City of Harvey, 251 Ill. 228, at pages 230 and 231, the court stated:

“. . . .Municipal corporations are not insurers against accidents. The object to be secured is reasonable safety for travel, considering the amount and kind of travel which may fairly be expected upon the particular road or street. A highway in the country need not be of the same character as a street in a large city. (Molway vs. City of Chicago, ,239 Ill. 486.). . . .only duty cast upon the city is that it shall maintain the respective portions of the street in a reasonably safe condition for the purposes to which such portions of the street are devoted.”

Therefore, what might be considered a defective or negligently maintained, constructed, or established walk, or path, in one case, would not be so in another.

In regard to claimant’s contention that the path upon which she was walking gave way, or subsided, causing her to fall, we note that from 15 to 31 persons, in addition to the guide, had walked upon this path immediately in front of claimant and her husband without the path giving way. Since the date of the accident, the path is still used for conducted hiking tours, and is in the same condition as of the date of the accident. There is no evidence in the record concerning the condition or physical makeup of this path, which would give a reasonably prudent person cause to believe that it might give way, or subside. There is no evidence that respondent had either actual or constructive notice that the path would give way. The testimony of claimant to the effect that it did happen, does not in itself establish negligence.

The State is no more an insurer against accidents arising out of the use of its nature paths, than is a city of its sidewalks. The law of Illinois is clear that, before a municipality can be held liable for injuries caused by defective conditions of a sidewalk, it is necessary that there be some evidence showing, or tending to show, that the city had actual or constructive notice of the alleged unsafe condition. Arnett vs. City of Roodhouse, 330 Ill. App. 524 at 527 and 528; Boender vs. City of Harvey, 251 Ill. 228 at 231 and 232; O’Donoughue vs. City of Chicago, 167 Ill. App. 349 at 352 and 353; Coffin vs. City of Chicago, 254 Ill. App. 29; City of Nokomis vs. Farley, 113 Ill. App. 161 at 163; Karczenska vs. City of Chicago, 239 Ill. 483 at 485; Powell vs. Village of Bowen, 92 Ill. App. 453 at 454 and 455. And, the burden of proving such actual or constructive notice, and the existence of such defect, is upon the claimant. Thien vs. City of Belleville, 331 Ill. App. 337 at 345. In Dominic Di Orio., Et Al vs. State of Illinois, 20 C.C.R. 53, this Court has applied these same rules of law to suits involving defects in highways against the State.

Therefore, even taking the evidence in this case most favorably to the claimant in regard to her contention that the path gave way, or subsided, we find that there is no showing that the respondent was negligent in this regard, due to the failure of claimant to prove such actual or constructive notice to respondent.

Claimant contends that the State was negligent in failing to construct guard rails at the place where the accident occurred, and in failing to warn her of the dangerous condition of the trail and proximity of the canyon. It is clear from the evidence that claimant knew there were no guard rails at that point, and was aware of the proximity of the canyon.

The Departmental Report establishes that the canyon was clearly marked, and posted beside the trail 20 feet before reaching the point of the accident. Claimant does not deny this fact, stating only that there were no danger signs along the path. It is apparent from the photographs of the approach to the canyon from above, attached to and a part of the Departmental Report, that the lack of guard rails, and the proximity and location of the canyon were readily apparent to anyone proceeding along the trail, if they had looked. In her reply brief, claimant concedes that the canyon adjoining the pathway was visible to her. .

Claimant should have foreseen that, if one should, for any reason, fall at the particular place involved herein, such person would in all likelihood fall to the bottom of the canyon. We hold that claimant, in hiking along this rough nature path for recreation, assumed the risks inherent in the sport of hiking as a whole, and those risks that were obvious to her, including the lack of guard rails, and the proximity of the canyon to the trail.

Professor Prosser in his work on Torts states at pages 383 and 384:

“In by far the greater number of cases, the consent to assume the risk is not expressed, but is found to be implied from the conduct of the plaintiff under the circumstances. By entering freely and voluntarily into any relation or situation which presents obvious danger, the plaintiff may be taken to accept it, and to agree that he will look out for himself, and relieve the defendant of responsibility. .... One who enters upon the premises of another, even as a business visitor, assumes the danger of all known or obvious conditions which he finds there. The consent is found in going ahead with full knowledge of the risk.”

In Section 340, Restatement of the Law of Torts, Vol. 2, page 927, it is provided as follows:

"A possessor of land is not subject to liability to his licensees, whether business visitors or gratuitous licensees, for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein.”

This doctrine of assumption of the risk is recognized and followed by the courts of Illinois. Weber vs. City Water Company of East St. Louis and Granite City, 206 Ill. App. 417 at 422 and 424; Campion vs. Chicago Landscape Company, 295 Ill. App. 225 at 234 and 242.

The above rule, set forth in the Restatement of Torts, has been specifically applied in Griffin vs. State, 295 N.Y.S. 304, in which case the facts were similar to those involved herein. A patron of a State park fell into a mountain gorge from a lookout balcony, after descending several unguarded, rough, and irregular steps leading to the balcony. There was no protecting guard rail at the edge of the balcony, or steps. This condition was clearly visible to the deceased. The court in denying a claim for wrongful death against the State of New York cited Section 340, Restatement of Torts, and concluded at page 309 that:

“. . . .The failure of the State, if there was a failure, to provide for greater protection against the precipitous bank of the gorge, was directly before her eyes as she proceeded to the point of danger. This was true as much as if she had been coming down the trackless side of the mountain. She voluntarily exposed herself to whatever danger was there, whatever the cause. All of the evidence in the case leads to a single conclusion — she did what she did knowingly, and did this as a matter of choice.”

Claimant also contends in her brief that the evidence in the Departmental Report to the effect that the natural sandstone steps “were not wet, but are hazardous due to the loose sand that wears off of the sandstone” constituted negligence on the part of the State for maintaining a dangerous place, where claimant was invited to walk. This evidence only shows that the steps were undergoing erosion on the walking surface thereof, and indicates no condition, which would cause a subsidence, or giving away of the pathway. If claimant slipped, or lost her balance on this eroded step by reason of the existence of the loose sand upon the step, as is intimated by claimant’s brief, in alternative to her position that the trail actually subsided, and gave way, we still see no basis for liability. The condition of the surface of the steps was as visible to claimant, as it was to the guide, A1 Shea, and the other members of the hiking party. She testified that she had been walking upon the stone path for some distance, and it was “sort of "stone, little tiny stones”. This was an obvious condition, and the risk of slipping, or losing one’s balance in walking upon the steps and path could as easily have been foreseen by claimant as by respondent.

In the case of Murray vs. Bedell Co., 256 Ill. App. 247, a business invitee slipped and fell in the vestibule of a store by reason of mud and water creating a slippery condition. The Appellate Court, in reversing a verdict in favor of the plaintiff, said at pages 249-50-51:

“ ‘Owners or lessees of stores, office buildings', banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come.' See also Dudley vs. Abraham, 107 N.Y.S. 97.
In the case at bar the plaintiff was as well apprised of the condition existing in the vestibule as the defendant, and should be held to as high a degree of care for her own safety as would be required of the defendant.”

The Appellate Court held the trial court should have directed a verdict in favor of the defendant.

The New York Court in Duncan vs. State, 111 N.Y.S. 2 (d) 590, 279 Appellate Division 970, in denying a claim for injuries where claimant, after having safely descended the stairway in a State Park, stepped on a loose rock, which caused her to fall, stated that, since she was aware of the nature of the terrain, and the risks, if any, were apparent, the State was not liable.

In regard to claimant’s contention that A1 Shea, the guide, was negligent, it is to be noted that nowhere in the record does there appear any evidence wherein claimant complains of any act or omission on the part of the guide. In claimant’s brief and argument, however, she contends that the guide did not warn the members of the hiking party and the claimant of any dangerous conditions, or of the proximity of the trail to the canyon, where she fell. It clearly was not negligence on the part of Shea to fail to warn claimant that the trail might subside. He had no more knowledge of this contingency than did claimant. There was likewise no reason for him to warn claimant of the absence of any guard rail, or to point out that the canyon adjoined the trail. These facts were obvious to anyone proceeding on the tour, including claimant. It was not negligence on the part of Mr. Shea to fail to call her attention to the loose sand on the eroded sandstone steps, and the small stones upon .the path. These conditions too were obvious to claimant. The guide was no more an insurer of claimant’s safety, than was the State. He followed a regular trail, and, it is immaterial whether it was the first conducted tour taken over the trail. It is obvious from claimant’s exhibit No. 8, a photograph taken a few days after the accident, of the path from which she fell, and from remarks in the record of claimant’s counsel, that this was a “clean cut path”. If claimant is not entitled to recover from respondent by reason of the condition of said path, then certainly the guide was not negligent in directing the tour over this path.

Therefore, considering the evidence in this case most favorable to claimant, we find that she has failed to establish her right to recover. In addition to this, the evidence as a whole is conflicting in certain material respects noted earlier in this opinion. The conflict of evidence, together with the natural and reasonable inferences to be drawn from all the facts and circumstances involved, leads us to the conclusion that claimant has not borne the burden of proving by the greater weight of the evidence that the accident occurred in the manner relied on by her. Since we have held that she is not entitled to recover, even considering the evidence most favorable to claimant, we will not extend the opinion further by discussing the weight of the evidence, or considering the question of damages. For the reasons hereinabove stated, the claim is denied.