text:
    (No. 4798
    Mary Barrett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1959.
    Kevin D. Kelly, Attorney for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Mary Barrett, brings this action to recover $7,500.00 in damages for injuries to her person, which she sustained on November 21,1956 in a fall on the public highway in Utica, Illinois, while crossing from the east to her home on the west side of Illinois State Route No. 178.

The facts are relatively undisputed, and are as follows:

Mary Barrett, claimant, was 67 years of age at the time of the hearing. She is a widow, and resides with her two sisters in a house about four blocks south of the business district of Utica, Illinois. The house is on the west side of Illinois State Bond Issue No. 178, and is within the city limits of Utica. There are houses on both sides of the road in the vicinity of the accident.

The day on which the accident occurred, November 21, 1956, was clear and bright. About 11:00 A.M. on the: aforesaid day, claimant had gone to the business district in Utica to do grocery shopping for the household. She obtained her merchandise, and placed it in a shopping bag* with a handle on it.

She walked in a southerly direction along the easterly side of the highway to a point 30 to 70 feet north of the place of her residence. When the traffic permitted, she crossed over' the highway. On the westerly half thereof she stepped into a hole about 8 inches by 18 inches in' size, and 2y2 to 3 inches in depth. She did not see the hole before she stepped into it, but looked back after she fell and was being carried off the pavement. The hole was also- described by the person, who carried her off the pavement.

According to claimant, she was looking ahead, did not see the hole, and didn’t know it was there until she caught her heel. Mr. Snell was called by Mr. Fitzgerald to aid in carrying claimant to her home. The witness Snell, who knew Mrs. Barrett very slightly, stated the-hole was 24 inches long by 12 inches wide, and 2 or 3 inches deep. The hole was near the west edge of the highway. This witness drove highway No. 178 about once a week. He said that the road was in a very choppy condition in this area. He stated that he did not notice-any loose concrete or gravel near this hole, and that, therefore, in his opinion, the hole was not fresh. He-estimated it to be a- couple of months old. According to Mr. Snell, claimant was lying very close to the hole,, which had caused the fall.

Following the removal of claimant from the highway by Mr. Snell, she was taken to the Ryburn-King Hospital in Ottawa, Illinois, where she was placed under the care of Dr. H. E. Stewart, who took x-rays. The doctor determined that there was a fracture of the left leg at the upper end of the femur, just below the head thereof. A cast was applied to both legs, and claimant was in a full hip and leg cast for a period of about 2% months. After the cast was removed, therapy was applied, and claimant was released from the hospital on February 22, 1957. She was on crutches for a period of six weeks after her release from the hospital, and thereafter she used a cane for a number of weeks. On the day of her last examination by Dr. Stewart, which was June 27,1957, and also at the date of the hearing, May 12,1958, claimant walked with a limp. Dr. Stewart described the limping condition as permanent. In Dr. Stewart’s opinion, claimant sustained a 20% loss of motion in the hip joint. In addition to the fracture, claimant suffered considerable pain. According to the doctor, claimant, due to shock, was mentally confused for several days after, the accident. Claimant’s hospital bill amounted to the sum of $1,417.30, and her doctor bill was $150.00. In addition to the aforesaid medical expenses, claimant paid $10.00 to the Hulse Funeral Home, $10.00 to Gladfelters, and $41.00 for eye glasses, which were broken in the accident. At the time of the accident, claimant was employed as a housekeeper by her sisters at the rate of $20.00 per week, plus her room and board.

From these facts we conclude that claimant is not entitled to recover for two reasons:

First, the facts do not establish a duty upon the State to maintain that particular portion of the highway for pedestrian travel. Although it is true that the' State and municipalities must maintain crosswalks at intersections in a reasonably safe condition for pedestrian travel, it does not follow that either the State or munici- . palities must maintain the entire public highway under their respective jurisdictions in the same manner and condition that a sidewalk or crosswalk should be maintained. To so require, would be to place an impossible burden upon the State and municipalities.

This accident did not occur on a sidewalk or crosswalk. It occurred at a point in the highway nowhere near an intersection. This hole was located on Illinois State Route No. 178, and was several blocks from the business, district of Utica, Illinois. There is no evidence that the point at which the accident occurred was more likely to be used by pedestrians than any other part of the highway outside of the business district. Although there is a showing that residences were located on either side of the highway, it is no less true that, throughout the highway network of the State, farm homes lie across the road from one another. The fact that the State could reasonably assume that people would cross the road to visit one another is no more reason for the State to be required to maintain the highway as a sidewalk at the point of the accident, than it would be to so maintain the highway throughout the rural areas of Illinois.

Likewise, the fact that claimant had a right to walk anywhere on the State highway, which she chose in going to and from market, does not place a duty upon the State to prepare the way for her as a pedestrian.

Utica is a village of approximately one thousand persons. What would be reasonable to require of the State or a municipality in a large city is not the test here

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, 239 111. 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.”

Claimant cites no case that places a duty upon the State to maintain the entire street for pedestrian traffic. The case of Graham vs. City of Rockford, 238 Ill. 214, relied upon by claimant, involved a crosswalk at an intersection.

The case of Maxey vs. City of East St. Louis, 158 Ill. App. 627, also relied upon by claimant, was one wherein the pedestrian was injured when she stepped from a street car to the public street. The court in that case held that the city was under a duty to maintain that portion of the street for pedestrian travel, inasmuch as the city had granted the street railway company a franchise and street privileges, and had, therefore, devoted such place at which the pedestrian would alight from a street car for use by pedestrians. At page 630, the court stated :

“* * * To hold otherwise would deprive the public of the use of street cars, or compel them to alight and walk on the street at such places at their own risk without regard to whether or not they were reasonably safe for such use.”

The court recognized the distinction between the situation presented there, and that presented in the instant case. At pages 629 and 630, the court stated:

“It is insisted by the appellant that there is no liability against the city in this case, because the hole or depression was not in any sidewalk or crossing of the city, and that it is under no legal obligation to keep the driveway of its street longitudinally in a fit and safe condition for pedestrians. It was said in substance in City of Aurora vs. Hillman, 90 Ill. 61, and in The Pres. and B’d. of Trustees of Harvard vs. Senger, 34 Ill. App. 223, that a city is not bound to keep its whole street fit and safe for foot passengers. If this must be accepted as the general mle of law, still we think that under the holding of our courts that there are exceptions to the rule. A city may reserve portions of a street for pedestrians, portions thereof for the use of vehicles only, and portions thereof for both pedestrians and vehicles. Sidewalks are usually made for pedestrians only, and street crossings for both pedestrians and vehicles. Cities are required to use reasonable care to keep street crossings in a reasonably safe condition for pedestrians while in the exercise of reasonable care and caution. This is not denied by appellant. The true rule in all cases, we think, is that a city is only required to maintain the respective portions of its streets in a reasonably safe condition for the purposes to which they are respectively devoted by the intention and sanction of the city. Kohlhof vs. The City of Chicago, 192 Ill. 249; Town of Normal vs. Bright, 223, Ill. 99; City of Beardstown vs. Smith, 150 Ill. 169.”

In City of Aurora vs. Hillman, 90 Ill. 61 at page 64, the Supreme Court stated:

“* * * The sidewalk was intended for foot passengers, and the carriageway in the street was intended for horses and vehicles. It is true that pedestrians would have a right to cross over the street or road, and their right to do so, at least at the usual street crossings, would be equal to that of persons with teams to drive along the street, and cities are bound to keep such crossings in a safe condition; but we are not prepared to hold a pedestrian has an equal right with one who drives a carriage to travel in and along the driveway of a public street, or that a city is under any obligation to keep such driveway, longitudinally, in a fit and safe condition for pedestrians.”

Under the evidence in this case, we find that the State did not owe the duty to claimant, as a pedestrian, to maintain the street at the point where she crossed for pedestrian travel.

Secondly, claimant has failed to establish that she was in the exercise of ordinary care for her own safety at the time of her injury. If the hole was as large as she and her witness stated it to be, then there appears to be no good reason why she should not have seen it prior to stepping in it.

It was a sunny day, she was not hindered in seeing the hole by anything, she had traveled practically the entire width of the road before stepping into the hole, and she had traveled the particular route almost every day prior to the injury over an eight year period.

She was not looking at the pavement, as she walked across the road. There was no particular reason why she crossed the highway at a point some 30 to 70 feet north of her residence, which was the location of the hole. There was more than sufficient space between the place she did cross and her home for her to have walked in safety had she given attention to selecting her path.

Although it was not negligence per se for claimant to cross at the place she did, and although the Supreme Court of this State in Swenson vs. City of Rockford, 9 Ill. (2d) 122, held that the question of contributory negligence in such an instance would probably be one for the jury to determine rather than as a matter of law, as counsel points out in claimant’s brief, we believe that, taking all of the facts and circumstances into consideration, claimant should have observed this hole in the road and avoided it.

By not doing so, we feel that the facts in this case indicate that by her own lack of due care claimant proximately caused her injury.

For the above reasons, the claim is hereby denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4818
    Kroger Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1959.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.
    Grenville Beardsley, Attorney General; Roger D. Lapan, Assistant Attorney General, for Respondent.
   Fearer, J.

Kroger Company, A Corporation, filed its claim for $395.00, as the result of a payment of $5.00 for each store-located in the State of Illinois for the privilege of dealing in eggs in the State of Illinois. This was done in order to obtain a license pursuant to Chap. 56½, Secs. 7-8, 1957 Ill. Rev. Stats., the license being one issued by the Department of Agriculture.'

On October 31, 1957, the Department of Agriculture issued to claimant 73 Class One (I) licenses for the stores mentioned in paragraph 4 of the complaint filed herein.

Claimant alleges that, prior to the payment of the license fee in question, it was led to believe, and it was so represented by a duly authorized agent of the Department of Agriculture that each of claimant’s stores mentioned in paragraph 4 was required to obtain a Class One (I) egg license pursuant to Sec. 7, Chap. 56½, 1957 Ill. Rev. Stats.

It is further alleged that, subsequent to the payment in question, claimant learned for the first time that it had mistakenly made the payment in question in that it did not buy or obtain eggs from a producer, as was contemplated by Sec. 8 of Chap. 56½, 1957 Ill. Rev. Stats. It is further alleged that, subsequent to the payment in question, claimant presented its claim to the Department of Agriculture of the State of Illinois, and the payment by mistake was acknowledged at said time by representatives of the Department of Agriculture.

It is further alleged that during the year of 1957 each of the stores mentioned in paragraph 4 of the complaint sold eggs only at retail, and obtained all of their eggs and now obtain all of their eggs from the Kroger Division Warehouse located at 8235 Vincennes Avenue, Chicago, Illinois; that said warehouse was at all times mentioned herein a licensed wholesale distributor of eggs for claimant, and at no time was nor is it now a producer for sale at retail.

The record in this case consists of:

1. Complaint

2. Motion of respondent to dismiss

3. Statement, brief and argument of respondent in support of the motion to dismiss

No answer having been filed, under Bule 11 of this Court a general traverse or denial of the facts set forth in the complaint shall be considered as filed.

Bespondent moves to dismiss the complaint and claim presented for want of jurisdiction of the subject matter, for want of statutory authorization, and for the further reason that the monies collected were voluntarily paid by claimant, and were not paid under any mistake of fact but under a mistake of law, as appears upon the face of the complaint.

Prior to July 11, 1957, this Court had previously held that in cases of this kind it did not have jurisdiction to hear such claims under the Court of Claims Act. Columbia Fire Insurance Company, A Corporation, vs. State of Illinois, 22 C.C.R. 38.

In the case above cited, this Court held that, where a payment of a tax is voluntarily made, no recovery can be had for overpayment unless a specific statute authorizes such payment.

In 1957, the Court of Claims Act was amended by the addition of Par. (F) to Sec. 8.

Sec. 439.8 (F) is as follows:

“All claims for recovery of overpayment of premium taxes or fees or other taxes by insurance companies made to the State resulting from failure to claim credit allowable for any payment made to any political subdivision or instrumentality thereof. Any claim in this category, which arose after July 16, 1945 and prior to the effective date of this amendatory Act, may be prosecuted as if it arose on the effective date of this amendatory Act without regard to whether or not such claim has previously been presented or determined.”

The addition of this paragraph permitted suits in the Court of Claims to be brought for the overpayment of taxes and fees by insurance companies.

The addition of this section to the Court of Claims Act, permitting recoveries on overpayments made by insurance companies, was prompted by the Columbia Fire Insurance Company case, as well as similar cases on overpayments of privilege taxes made by other insurance companies; and granted to the insurance companies the right to sue the State of Illinois in the Court of Claims to recover for such taxes wrongfully paid.

The section of the statute added refers specifically to insurance companies. If the Legislature had intended that it should include all licenses or taxes wrongfully paid, then the amendment to the Act should have so provided. As it is now provided, it appears that the addition to the Court of Claims Act gave this Court jurisdiction only to hear cases in regard to overpayments made by insurance companies, and does not cover overpayments by others for license fees, taxes, and the like.

This construction of the legislative intent is mandatory when one considers the maxim expressio unins est exclusio alterius, or the express mention of one thing is or amounts to an exclusion of all others, I. C. R. R. Co. vs. Franklin County, 387 Ill. 301. This is not a rule of law. It is merely a rule applied to assist in arriving at the real intention of the lawmakers, where such intention is not clearly manifested in the language used.

This Court previously adopted and has followed the rule of law set forth in Whiting Paper Company vs. State of Illinois, 13 C.C.R. 136, which has been reiterated many times. We quote from page 138:

“The rule is well established in this State that, where an illegal or excessive tax is paid voluntarily with full knowledge of all the facts, the same can not be recovered in the absence of a statute authorizing such recovery. Alton Light and Traction Company vs. Rose, 117 Ill. App. 83; Yates vs. Royal Insurance Company, 200 Ill. 202; Cooper Kanaley and Company vs. Gill, 363 Ill. 418; American Can Company vs. Gill, 364 111. 254. The rule is the same where such tax is paid under a mistake of law, but, where it is paid under a mistake of fact, it is not considered as having been voluntarily paid, and may, therefore, be recovered,"

Because the Legislature did not include a provision for overpayments of fees or taxes, other than those for insurance companies, this Court would not have jurisdiction to pass upon this claim until the Court of Claims Act was enlarged by the Legislature; or, unless there was an express statute authorizing the repayment of monies voluntarily and wrongfully paid to any departmental agency of respondent.

It is, therefore, the order of this Court that the claim filed herein be denied.


author: Wham, J.

text:
    (No. 4623
    John D. Long, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1959.

      Petition of claimant for rehearing denied October 2, 1959.
    John R. Snively, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tier-nan, Assistant Attorney General, for Respondent.
   Wham, J.

In this case, claimant, a prisoner at the Illinois State Penitentiary, was injured on May 19, 1952, while performing Ms duties as a teamster. He claims damages in the amount of $100,000.00, and charges in Ms complaint, as amended, that respondent was negligent in the following respects:

“(a) Failed to make, promulgate and publish rules and regulations for the safety of claimant.
(b) Failed to provide reasonably safe methods of work.
(c) Failed to furnish claimant with reasonably safe tools, machinery, appliances and instrumentalities, and places to work.
(d) Ordered claimant to labor under unsafe conditions.
(e) Failed to instruct claimant in such labor, and to warn him of the dangers thereof.
(f) Failed to provide adequate or proper safeguards.
(g) Ordered claimant to labor without adequate or proper safeguards.
(h) Failed to furnish claimant with adequate help or assistance.
(i) Ordered claimant to labor without adequate help or assistance.
(j) Failed to warn claimant of the frisky, skittish disposition of the mules.
(k) Failed to tie up the cows or to turn them out to pasture while claimant cleaned the manure out of the cow shed.”

He also charges in Ms complaint that respondent violated the law of Illinois in requiring him to perform labor outside the walls of the penitentiary, and should, therefore, respond in damages for Ms injury.

The oMy eyewitness to the occurrence in tliis case was claimant. The evidence set forth in the statement of facts in claimant’s brief is as follows:

“John D. Long was a prisoner in the Illinois State Penitentiary. (Abst. 2.) He was indicted on January 13, 1944 in the Circuit Court of Winnebago County for the crime of robbery. He entered a plea of guilty on January 17, 1944, and was sentenced to a term of not less than 5 years nor more than 15 years. He was received at the Diagnostic Depot at Joliet, Illinois on February 15, 1944. He was classified for work by the Classification Board.
He was transferred to the Stateville Branch. His first assignment was on the coal pile, where he remained for about 3 years. (Abst. 3.)
He was then transferred to the Menard Branch on August 7, 1947. His first assignment was to the rock quarry, where he remained for about three years. He was next assigned to the Honor Farm on July 7, 1950. He did not make application for the work, but he signed an honor pledge. (Abst. 14.) In obedience to the orders and assignment, he entered upon the performance of the labor on the farm, which was located about 3 miles outside the walls of the penitentiary. His first assignment was gardening, which he continued for a couple months. He was next assigned as a teamster. He was required to haul various things.
He reported for work on May 19, 1952. Roy Harris, the Superintendent, ordered him to clean the manure out of the cow shed. (Abst. 3.) He first hitched his team to a wagon, which he had used for a couple of weeks, while his wagon was being repaired. He had driven one mule for about a year, but not while any cows were in the shed. It was the first time he had used the other mule. (Abst. 18.) Nothing had been said to him about the disposition of the mules. (Abst. 13.) In addition, he had not had any trouble having them scare or ran off, nor had he seen any one else have any trouble with them. (Abst. 18.)
The cow shed was a temporary building, which he had helped to build two or three months before that. It was constructed from the roof of an old garage, which had been cut into sections. They were placed on the top of posts. (Abst. 4.) The shed was approximately 45 feet in length, and a length and a half of a wagon in width. The front was open, but the ends and back were boxed in. There were no doors or partitions. The roof slanted toward the back. You could touch it with your hands at the back. (Abst. 15.) The shed was used by the cows with calves at night. (Abst. 16.)
When he arrived there, he opened the gate and drove into the yard. The cows, which were in the shed, were supposed to have been in the pasture. They were not tied up, but were loose in the shed.
He then backed the wagon into the shed. The mules and the front part of the wagon were clear of it. He next got down from the wagon. He started to load it with manure. It took him about 15, 20 minutes. The Superintendent was not there, nor was any officer or guard. (Abst. 4.) No one had shown him anything about the work, or helped him. He loaded his own wagon. When he finished, he climbed back on the seat. He discovered the cows coming out of the shed. They had come from the other end, and were right in front of him. The mules became frightened. They backed up in the shed instead of going forward. He bent over, but his back scraped against the roof. He kept yelling at the mules to go forward. They made a lunge, and started to mn away. He had the lines, and raised up a little. As he did so, Kis shoulders struck a rafter. That is when he actually felt the pain. (Abst. 18.) He tried to stop the mules, but he was not able to do so. (Abst. 13.) He fell or was pulled down. When the wagon stopped, his hands were on the double tree, and his feet were up on the wagon. (Abst. 5.) He was not able to move. He sustained severe injuries.
He was taken to the hospital, where he was placed in traction. (Abst. 6.) He remained there 19 days, and was transferred to the Stateville Branch on June 6, 1952, where Dr. J. P. Cascino of Chicago, a neurosurgeon, examined him. X-rays revealed a dislocation of the first lumbar vertebra. Dr. Cascino performed a laminectomy on June 8, 1952.
He was discharged from the penitentiary on December 12, 1952. (Abst. 6.) He was taken to the Dixon State Hospital, where he remained until 1954. He then came to Rockford.
He first used a wheel chair, but now uses crutches. He is paralyzed in both legs. His injuries are permanent. (Abst. 9.) He is not able to walk or work.
He was 38 years of age at the time that he was injured. (Abst. 2.) Prior to his imprisonment, he had earned $150.00 a week in the trucking business, and $75.00 a week in the foundry. His life expectancy, as shown by Dr. Wigglesworth's Tables, is 26.91 years. (Abst. 20.)"

Respondent agrees with this statement of facts in its brief with the exception that it sets forth additional facts appearing from the transcript, which are as follows:

“That claimant was acquainted with the habits and traits of mules since childhood (Tr. p. 78); that claimant had worked as a teamster in the penitentiary for approximately two years (Tr. p. 82), and had hauled manure from the same shed on numerous occasions (Tr. p. 102). . . . That all the crops grown on the prison farm were used for consumption within the prison (Tr. p. 81). That the manure hauled by claimant was used as fertilizer on the prison farm and in the flower gardens within the prison (Tr. p. 81).”

After examining the record in this case, and considering the briefs and arguments of the respective parties, we conclude that claimant has failed to establish any act of negligence on the part of respondent, which proximately caused the injuries in question.

The mere fact that claimant was working on the Honor Farm outside the walls of the penitentiary does not justify an award.

It is fundamental that the State is not an insurer of an inmate’s safety. Claimant must bear the burden of proving that his injury was proximately caused by a negligent act or omission on the part of respondent. This he has failed to do.

Claimant was as familiar with the conditions existing prior to and at the time of his injury as was respondent, if not more so. The proximate cause of his injury was the fact that the mules backed up rather than proceeded ahead. At this time they were under his sole control.

There is no evidence in the record, which establishes these mules to be different than any other mules. Respondent cannot be held to guarantee that a team of mules will respond to the wishes of the driver as would a motor driven vehicle.

Claimant was no novice at handling mules, and respondent was under no duty to either instruct or warn him regarding their propensity, or furnish him with an assistant to handle the mules.

Claimant contends that the cows frightened the mules, and that respondent should have either tied them up or turned them out to pasture in preparing the way for claimant to do his work.

This position is not well taken. The record reflects no evidence that respondent had knowledge of this fact. Moreover, if the presence of these cows was so significant, then certainly claimant had more of an opportunity to take remedial action himself than did respondent. He could have driven the cows out of the cow shed and into the pasture himself, or notified an agent of respondent.

Claimant also contends that the cow shed was not of sufficient height for the proper handling of the team and wagon when in the shed. There is no doubt but what the roof was too- low for claimant to seat himself in the driver’s position in the wagon, if the mules backed into the shed. This fact must have been as obvious to claimant as to respondent. No one ordered him to sit on the seat while driving the mules out of the shed, nor was it necessary for him to board the wagon until it was clear of the shed.

Respondent was under no duty to provide him with a certain height cow shed to clean out. This shed simply presented an ordinary condition, which was to • be reckoned with and considered by claimant in performing his duties. It was no more dangerous than any other space occupying object, and required no more skill or judgment with respect to solving any problems it created than any other object confronting man, as he daily moves throughout the world.

To hold that respondent was negligent in directing claimant to clean out this low roofed cow shed, in that it should have foreseen the resulting injury, would, in our judgment, place upon respondent the duty to insure the safety of all inmates under its jurisdiction, not only with respect to the actions and conditions of respondent’s agents and chattels, but also with respect to the actions and judgments of the inmates themselves. Such, of course, is not the law.

The injury was most severe and unfortunate, but in Anew of the evidence Ave must deny this claim.


author: Tolson, C. J.

text:
    (No. 4738
    Murphy Reynolds, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 2, 1959.

    Lansden and Lansden, Attorneys for Claimant.
    Grenville Beardsley, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Murphy Reynolds has filed a claim in this Court seeking an award for injuries alleged to have been caused by reason of the failure of the State to provide adequate medical care.

On August 23, 1954, claimant was confined to the Iroquois County jail in Watseka, Illinois, and was sprayed with an unknown chemical in the area of his thighs and genitals, which caused severe bums.

On August 26, 1954, he was received at the Illinois State Farm at Vandalia, Illinois to serve a ninety day term for vagrancy. Upon admission there, a prisoner is screened by a registered male nurse, and, if any condition is found that requires attention, the prisoner is referred to the prison physician. The record discloses that the farm has a modern forty bed hospital, and the prison doctor answers sick calls three times a week.

Joint exhibits Nos. 1-A and 1-B cover the physical examination made upon admission, and include dates of vaccination, typhoid inoculations and chest x-ray.

The gist of the complaint is to the effect that claimant reported his condition to the guards in charge, who he contends refused to let him answer sick call, and threatened to confine him to solitary, if he persisted in his complaints. He states that he did not see the doctor in charge until October 27th, a delay of about sixty days, and that the doctor then treated him for infection in his right leg.

Assuming for the moment that the charge is true, an examination of his hospital records discloses that he had several opportunities out of the presence of the-guards to tell the nurse or attendants of his condition. On August 27th he was vaccinated, and given his first typhoid inoculation. On August 28th he was given a chest x-ray. On August 30th he was given his second typhoid inoculation, and on September 1st he was given his third typhoid inoculation.

On August 27th, when he was undressed and examined by the male' nurse, the nurse questioned him about the burns on his legs. On direct examination (page 18) the question was asked:

“Q. Did you tell him when you got those bums?
A. Not at that particular time, I didn’t.” and, on cross-examination (page 28):
“Q. Were your legs hurting you when you got to Vandalia?
A. Yes.
Q. Did you say anything about them hurting?
A. No.
Q. What did your legs look like?
A. They had little blisters on them.
Q. Would you say a lot of blisters?
A. Yes, sir, all over.”

At this time claimant had every opportunity to tell the nurse of his condition so that treatment could have been made, but for unexplained reasons he saw fit to say nothing.

On the basis of this record and with the opportunities present to tell of his condition, claimant was grossly negligent in not coming forward for early treatment, and the fact that he was not treated until October 27th is' no one’s fault but his own.

Counsel for claimant cites the case of Witte vs. State of Illinois, 21 C.C.R. 173, as authority for an award. In this case, a prisoner was injured, and immediately taken to the hospital. The doctor in charge made a faulty diagnosis, and failed to furnish proper medical treatment.

In the instant case, claimant did not seek aid for sixty days, and, though he was in the presence of nurses or attendants on four occasions, at no time did he complain to them of his condition.

The Court, therefore, finds that claimant was negligent, and is not entitled to an award.

An award is, therefore, denied.


text:
    (No. 4696
    Donald Lindsey, Christine Lindsey, Patricia Lindsey, By Christine Lindsey, Her Mother, Natural Guardian and Next Friend, and Barbara Lindsey, By Christine Lindsey, Her Mother, Natural Guardian and Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1959.

      fudge Wham dissenting.

    Jacobson and Jacobson and William Sulkin, Attorneys for Claimants.
    Latham Castle, Attorney General; Richard F. Siman and Lester Slott, Assistant Attorneys General, for Respondent.
   Tolson, C. J.

On March 25, 1955 at 1:00 P.M., claimant, Donald Lindsey, was traveling in a southeasterly direction on Route No. 126 at a point approximately two miles east of Yorkville, Illinois. The weather was misty, hut there was no snow on the highway. Route No. 126 is a two lane highway, twenty feet wide, with shoulders eight feet wide. Claimant approached a curve to the right, the end of which is a small hill or elevation. From this point, a driver cannot see the condition of the road ahead until he completes the curve at the top of the crest.

On the date and time in question a State highway truck, which had been spreading cinders, stopped on the highway, as a chain attached to the spreader had fallen off. The exact place where the truck stopped is the crux of this case, and the evidence in this regard is irreconcilable.

Walter Curtin, a witness to the accident, was driving Ms veMcle in the opposite direction, and testified that he was within 150 feet of the scene when the collision occurred.

Claimant Lindsey testified-that when he first saw the State truck,.it Was parked about fifty feet from the crest of the hill. When he realized that the truck was stopped, he attempted to pass on the left, but was confronted by the Curtin car coming in the opposite direction. He then pulled back into his lane, and, before he could stop, smashed into the cinder spreader of the State truck.

Mr. Lindsey suffered severe injuries to his right and left leg, and incurred medical expenses in the amount of $5,812.18. He was out of work for five months. The State made no objections to the exhibits with reference to medical expenses, nor did the State controvert the seriousness of the injuries. There seems to be no dispute over the fact that the driver of the State truck stopped on the pavement for five or more minutes while his helper went to the rear to replace the chain on the spreader. There was room on the shoulder of the road to drive the truck entirely off of the traveled portion of the highway. Two witnesses stated there were no flashing lights, flares or flags in place to warn the traveling public. The two State employees stated the flasher was in .operation. It is of interest to note the following testimony .of Joe Purkye:

“We got strict instructions from our bosses that, if we had to stop a truck on the road, we had to pull on the- side. If we cannot pull on the side, we have instructions to pull two wheels .on the side, take a flag, go back a ways, and give a signal. We got orders a couple of times in case we stop on a highway to post red warning flags on the highway 200 feet in front of the truck and 200 feet in back of the truck. We have those flags in the truck."

From such evidence, the Court concludes that respondent was guilty of negligence in stopping on the pavement, and thereafter failing to warn the traveling public of the dangerous condition.

Whether claimant was guilty of contributory negligence, so as to bar a recovery, is a more difficult question, as the evidence as to the location of the truck is in hopeless conflict.

If the truck was parked fifty feet from the crest of the hill, so that claimant would have been unaware of it until he made the turn at the top, there can be no question but what he is entitled to an award.

If the truck was parked 1,800 feet from the crest, claimant would have had ample time to recognize the obstacle in his path, and a failure to drive in a manner so that he could have stopped his car in time would make him guilty of contributory negligence.

In an examination of the abstract of evidence, we note from the testimony of Frank Marklein, the driver of the truck, that he identified the location of the scene of the accident from a photograph introduced in evidence as being0!,800 feet from the crest of the hill. On re-cross examination, he stated at page 42 of the abstract that he did not measure the distance as 1,800 feet, but someone did, and then stated “I thought it was 500 feet”.

Joe Purkye; the helper on the truck, also located the position of the truck as being 1,800 feet from the crest of the hill, but at page 43 of the abstract, on direct examination, stated that the chain came off about seventeen or eighteen feet below the hill, and he told the boss, to stop, so that he could pick up the chain. In so stopping, the truck was a little bit sideways, two wheels were on the snow, and two wheels on the pavement.

Claimant’s testimony was unequivocal that the truck was parked fifty feet from the crest of the hill.

The only disinterested witness in this case was Walter Curtin, a plumbing and heating contractor from LaSalle, Illinois, who saw the entire incident. He stated that he was driving in a northwesterly direction in the opposite lane of travel. The weather was misty. He was driving at about thirty miles an hour, and had his windshield wipers in operation.

He testified that the State truck had stopped with all four wheels on the pavement about fifty feet from the crest of the hill; that the blue light on the roof of the truck was not lit; that the flashers were not going, and that there were no flags or flares posted on the side of the road.

He stated that he saw a car, later identified as the Lindsey car, come around the curve traveling at about twenty-five miles per hour, that it attempted to pass the truck, but, when the driver saw the Curtin car, he pulled back into the right lane and hit the spreader.

At this point, we have the testimony of claimant, an interested witness, locating the truck fifty feet from the hill; the testimony of Mr. Curtin, a disinterested witness, locating the truck fifty feet from the hill; the testimony of Mr. Marklein, an interested witness, locating the truck 1,800 feet from the hill, who also stated he thought it was 500 feet; the testimony of Mr. Purkye, an interested witness, locating the truck 1,800 feet from the hill, who also stated that the chain fell off seventeen or eighteen feet from the hill, and who yelled at his boss to stop. One may inquire at this point whether the driver would have continued 1,800 feet before stopping to pick up the chain.

The further testimony of Mr. Curtin is helpful in resolving this conflict for at page 6 of the abstract he stated that he went over to the State truck and asked the driver if he would move his truck up near the curve and turn on his flasher. He further stated that they moved the truck a little ways, and he then asked them to move it further, which they did.

It is understandable, when an accident occurs, that a certain amount of confusion exists, and that locating the position of the truck at a later date may be difficult. Since the truck was moved twice after the accident, it is apparent that the State employees could have been honestly mistaken in their testimony.

From an analysis of this testimony, we, therefore, conclude that the truck stopped about fifty feet from the hill, and that claimant, in the operation of his vehicle, was not guilty of contributory negligence.

Claimant further argues that he was placed in a position of danger without notice or warning of the condition, so that he should not be charged with contributory negligence for any error of judgment in choosing one of several alternate courses, which he believed would have avoided the collision.

Our courts have repeatedly held that a plaintiff is not to be charged with negligence if he, without fault, is confronted with a sudden emergency due to the negligence of another, and is obliged to instantly adopt a course of action in an effort to avoid injury.

Wolfe Mfg. Co. vs. Wilson, 46 Ill. App. 381.

Junction Mining Co. vs. Ench, 111 Ill. App. 346.

Reviewing some of the cases appearing in the Court of Claims Reports, we find that these cases turn on a question of fact. If contributory negligence was found, a claim was denied.

Porter vs. State of Illinois, 21 C.C.R. 116.

Johnson vs. State of Illinois, 21 C.C.R. 528.

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

To the contrary, if the State was negligent, and claimant was found to be free from contributory negligence, an award was made.

Howard vs. State of Illinois, 21 C.C.R. 116.

The Court believes that the facts of this case are similar to the Howard case (supra), and that claimant has established his case by a preponderance of the evidence.

An award is, therefore, made to claimant, Donald Lindsey, in the amount.of $7,500.00/


text:
    (No. 4750
    Charles Callen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1959.

    Stanford S. Meyer, Attorney for Claimant.
    Latham Castle, Attorney General.; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Charles Callen, brings this action to recover $7,500.00 for personal injuries, which he sustained on December 4, 1954, when he fell on the shoulder of a public highway, known as Old Illinois State Route No. 40, outside of the city limits of Highland, Madison County, Illinois, a short distance south of the Green Lantern Tavern.

As the result of the fall, claimant sustained injuries consisting of a spiral fracture of the lower third of the tibia, and also a fracture of the lateral malleolus, the end of the fibula.

At the time of the injury claimant was employed by the State of Illinois receiving $1.40 per hour, and working a forty hour week. He was out of work for seven months with an alleged total loss of earnings of $1,568.00. Medical bills, incurred as the result of said injuries, were as follows: Hospital expenses $327.85, and doctor’s fees $250.00.

A summary of the evidence is as follows:

On the evening of December 3, 1954, Mr. Callen, accompanied by his wife and friends, Gus Liening and his wife, visited the V.F.W. Post in Caseyville, Illinois. From there they went to the Sky Line Tavern. In both of these taverns they consumed beer, and at the Sky Line Tavern they also ate. Before midnight they went to the Green Lantern Tavern, which was across the highway from the Sky Line Tavern, and, while at the Green Lantern Tavern, they consumed more beer. They left the Green Lantern Tavern shortly after midnight on December 4, 1954.

On arriving at the Green Lantern Tavern, Mr. Liening parked his automobile a short distance south of the tavern, which was located on the west side of State Route No. 40. The automobile was parked some four or five feet west of the paved portion of the highway on the shoulder, which was on the west side of the road, and was approximately six feet in width.

Many patrons of the tavern had parked their automobiles, which was the custom, on the shoulder in front of the tavern. The front door of the tavern was approximately forty feet from the west edge of the paved portion of the highway.

There is a conflict in the evidence as to the shoulder on the west side of the highway being in a poor state, of repair. The shoulder was described as being constructed of gravel, macadam and cinders. This was a patrolled highway. From the evidence it appears that the depression or hole was only noticeable after a rainfall, and only then because water remained in it. The hole in which claimant fell was described as being two and one-half to three feet in diameter and from two to two and one-half inches deep.

Claimant is contending that the shoulder in front of the tavern had slight depressions in it, which were hazardous, and had been for a considerable period of time, and that the State had actual, or at least constructive notice of this. The evidence in this regard is not too convincing. However, this is not the determining factor in deciding this case. There is a slight conflict in the evidence as to the exact location of the hole or depression in which claimant slipped and fell, and thereby sustained personal injuries. It is convincing, however, that, prior to December 4, 1954, no one ever complained about the condition of the highway or shoulders adjacent thereto.

Upon leaving the tavern, claimant and his wife and friends were walking in a single file between cars parked on the shoulder to Mr. Liening’s automobile. Claimant was walking directly in front of his wife. Claimant’s wife testified that she did not see the hole, but saw her husband slide into the hole, which caused him to fall.

Claimant contends that the shoulder on the highway was in a poor state of repair; that respondent had actual or constructive notice; and that it owed a duty to pedestrians walking on said shoulder, or right of way, to maintain its right of way for the protection of pedestrians.

This is .not a case where claimant is contending that the shoulder was not maintained in a reasonably safe condition for traffic traveling upon State Highway No. 40. There is no question but what the highway was under the jurisdiction of the State of Illinois, and that the accident occurred on the right of way.

There is, however, a serious question as to the liability of respondent to maintain its shoulders in such a condition that it would be safe for pedestrians and people using the State right of way in parking their automobiles in front of the tavern.

The State is not an insurer of all persons injured on its rights of way.

Arvidson vs. City of Elmhurst, 8 Ill. App. (2d) 183, 189.

Grant vs. State of Illinois, 21 C.C.R. 563.

The State is not obligated or required to maintain the shoulders of its highways in the same condition as it is required to maintain the traveled or paved portion of its highways. This is particularly true in the absence of crosswalks or sidewalks outside of corporate limits.

The facts in this case do not constitute a duty upon the State to maintain the shoulders as parking areas for taverns, nor to maintain shoulders for pedestrian travel, even though the State and municipalities must maintain crosswalks at intersections in a reasonably safe condition for pedestrian travel. However, it does not follow that either the State or municipality must maintain all public highways under its jurisdiction in the same manner and condition as sidewalks and crosswalks should be maintained. To so require would place an impossible burden upon the State.

Claimant did not fall on a sidewalk or crosswalk. The point where the car was parked, which he was approaching at the time, was south of the tavern along the State right of way. To require the State to maintain its shoulders as a parking area for pedestrians of the tavern would be placing an undue burden upon the State. This tavern is located in a rural area, and, even though claimant and other patrons of the tavern had a right to walk upon the shoulder or State right of way going to and from the tavern, this would not require or place a duty upon the State to so repair or maintain the shoulder for pedestrians.

The majority of the citations set out in the brief referred to the responsibility of municipalities and respondent in maintaining crosswalks and sidewalks, and the balance of authorities referred to the duty of the State to maintain the paved portion of its highways and the shoulders located along said highway in a reasonably safe condition, but not requiring the State to maintain its shoulders in the same condition as the paved portion for the protection of vehicular traffic.

This Court recently had an occasion to pass on the case of Mary Barrett vs. State of Illinois. The accident in that case happened in Utica, Illinois, while claimant traveled across the State highway at a point where there was no crosswalk or sidewalk. In that case we denied recovery. There was cited in the opinion the case of Boender vs. City of Harvey, 251 Ill. 228, in which case the court said on pages 230 and 231:

“* * * 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 particu lar road or street. Á 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.”

Claimant has not cited a case that places a duty upon respondent to maintain the shoulders of its highways in such a condition that they would be safe for the protection of pedestrians walking thereon.

It is further significant that of all the parking and travel by patrons in going from their automobiles to and from the tavern, the fact that claimant, and those accompanying him, had gone into the tavern and returned to their car, it was only claimant who fell in the depression. Further, since no one had ever complained before to any of respondent’s agents that this shoulder was in such a bad condition that it required attention, it is very apparent to us that claimant has failed to establish that he was in the exercise of ordinary care for his own safety at the time of the injury.

If the hole in the shoulder was as large and as dangerous as claimant is now trying to present and make this Court believe, it is hard to understand why he should not have seen the hole and stepped over it as other witnesses testified they did.

We are denying this claim for the reason that to place the burden upon respondent, which claimant is now contending in this particular area, would be placing a burden upon it, which the law does not contemplate, particularly for pedestrians outside of a municipality. State roads outside of municipalities do not have to be maintained in the same manner as sidewalks • and crosswalks within municipalities for pedestrians.

Questions of contributory negligence and proximate cause, being questions of fact, and this Court not only being a trier of the law but a trier of all the facts, from the state of the record we cannot see where claimant has maintained the burden of proof, which he is required to maintain in order to obtain a recovery.

For the reasons above stated the claim is hereby denied. ■


text:
    (No. 4832
    Federal Barge Lines, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1959.
    John F. Gillespie and Belnap, MoAuliffe and Spencer, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Federal Barge Lines, Inc., seeks an award for damages to the M/Y Huck Finn in the amount of $14,098.81 by reason of a collision with the Brandon Road Bridge, which was alleged to have been negligently lowered by an employee of respondent.

Respondent did not offer any evidence in the case other than a Departmental Report, and predicates its defense on the failure of the M/Y Huck Finn to sound a long blast of the" whistle, which is the -signal to open the bridge, and is required by Rule No. 7 of the Federal Rules and Regulations governing the operation of draw bridges crossing the Mississippi River and its navigable tributaries.

There is no dispute as to the facts, which may be summarized as follows:

At about 2:20 A.M. on the morning of July 19, 1956, a collision occurred between a towboat, the M/V Huck Finn, which was owned and operated by claimant, and the Brandon Road bridge, a highway bridge, owned and operated by respondent, which spans the Des Plaines River, a navigable waterway of the United States.

The locale of the collision is shown on claimant’s exhibit No. 1, which is a copy, original size, of chart No. 62 of the navigation charts of the Illinois Waterway from the Mississippi River at G-rafton, Illinois, to Lake Michigan at Chicago and Calumet Harbors, prepared by the Corps of Engineers, U.S. Army. As indicated by the exhibit, the bridge crosses the waterway about 150 feet below the lower gates of Brandon Road lock. However, it is closer to the lock gates at its north end than at its south end, since it crosses the waterway at an angle. The bridge is a double-leaf bascule bridge, having a horizontal clearance of 110 feet, and a vertical clearance closed of 15.4 feet above pool stage.

At the time of the collision the M/V Huck Finn was proceeding downstream, and was running light, that is, without barges. She had just passed through the Brandon Road lock, having locked through with the M/V Hugh C. Blaske and its tow of five barges, which she was following out of the lock, when the bridge, without any warning or signal, was lowered in front of her. She was unable to kill her headway, and she collided with the bridge.

Prior to the time of the accident, when the pilot came on watch it was raining, but the rain stopped about 1:00 A.M., and it was hazy at the time of the collision. All necessary navigation lights were burning, the red and green lights on the pilot house, two white lights above the pilot house, and one stern mast light to indicate that the M/V Huck Finn was running without barges. In addition, amber guard lights running entirely around the main deck were turned on. The 10,000 candle-power searchlight was on when the M/V Huck Finn entered the lock. It was turned off in the lock. Then it was turned on again as the M/V Huck Finn left the lock, and remained on until the time of the collision.

The M/V Blaske was southbound with a tow of five barges, and the M/V Huck Finn requested permission, which was granted, to lock down with the M/V Blaske. The M/V Blaske and its tow entered the lock first. It moored on the left descending wall. Its tow was made up of three barges wide across the head, and two wide back next to the boat. All of the barges were ahead of the towboat. The extra barge on the head end was on the starboard side. Upon entering the lock the M/V Huck Finn tied off on the face barge of the M/V Blaske tow, that is, the barge directly in front of the towboat. The head •line from the M/V Huck Finn ran to the face barge on the M/V Blaske tow, and the stem line from the M/V Huck Finn ran to the M/V Blaske.

After the M/V Huck Finn entered the lock and moored alongside the M/V Blaske, her engines were stopped until the lock chamber was emptied. As soon as the lock chamber was emptied, and the lower gates were opened, the lock man signaled permission to leave the lock by blowing a short whistle. This is the signal prescribed by Army regulations for permission to leave the lock (33 C.F.R. 207.300 (e) (1) (iii) (a) ).

The lock man then blew a long blast on the whistle for the bridge to open. There is no rule prescribing such a signal to be given by a lock. The prescribed signal to be given by an approaching vessel for a bridge to open is one long blast of the whistle (33 C.F.R. 303.555(d) (1)-(i) ). However, the testimony of the pilot of the M/V Huck Finn was that “they (the lock personnel) always blow whistles to open the bridge. ’ ’

After the lower gates were open, the M/Y Blaske blew a short whistle as a signal to turn the lines loose from the lock wall. She then blew a long whistle for the bridge to open, and the bridge answered with a siren. The bridge was still down when the lower lock gates were opened. With the bridge down and the lower gates opened the pilot of the M/Y Huck Finn could see the bridge control house.

As soon as the M/Y Blaske started moving, the M/Y Huck Finn immediately blew a short whistle to signal the mate to turn loose from the M/Y Blaske. The M/V Huck Finn, independently, did not blow a long whistle for the bridge to open. Just after the M/Y Huck Finn had cleared the lower lock gates, the pilot noticed that the bridge was coming down. He estimated that, to the best of his judgment he was about a hundred feet away from the bridge when he first noticed that it was coming down. There is a red light on the end of each leaf of the bridge. At no time did the color of these lights change, and no signal was ever given by the bridge, either visual or sound, that the bridge was coming down.

As soon as the pilot noticed that the bridge was descending, he immediately blew the danger signal consisting of four short blasts of the whistle. He stopped the engines and reversed them. He estimated his speed at about one mile an hour. There was practically no current at the time. He estimated that it took about 15 to 20 seconds to reverse the engines. He kept backing the engines, but had to leave the pilot house, and, as he went around the corner of the pilot house, he was cut by a piece of glass. He was unable to kill the headway on the boat, however, and the right descending leaf of the bridge (that is, the right leaf of the bridge looking at the bridge headed downstream) struck the starboard corner of the pilot house. The M/V Huck Finn stopped directly under the bridge. The airline controls in the pilot house were broken by the collision, and the engines were still backing, so the pilot had to go to the engine room to get the engineers to stop the engines.

During all this time, after the M/V Huck Finn started leaving the lock, its 10,000 candle-power searchlight was shining down the right descending wall of the lock directly under the bridge.

The damages, which the M/V Huck Finn incurred, as a result of the collision, were repaired by the St. Louis; Shipbuilding & Steel Co., the parent corporation of claimant. The St. Louis Shipbuilding & Steel Co., which is the largest shipyard on the inland waterway system in volume of business, and which repairs and constructs vessels for other companies as well as for Federal, performed the repair work in this instance under a contract with Federal, based on its published rate schedule, which is, in turn, based on time and material charges.

When the collision first occurred, the St. Louis Shipbuilding & Steel Co. was notified to send a man up to the scene of the accident to make a survey so that the necessary materials for the repairs could be gotten together. The St. Louis Shipbuilding & Steel Co. did not have all the necessary equipment to make final repairs, so temporary repairs were made to the M/V Huck Finn on July 21 through July 24, on which date the M/V Huck Finn went back into service. On August 22. 1956, the M/V Huck Finn again arrived back at the shipyard for permanent repairs, winch were completed on September 8, 1956, at which time the M/V Huck Finn departed. The-permanent repairs consisted of putting the pilot house back in its original condition. This included installing necessary navigating equipment, whistle, light, air horn, two searchlights, radar, radio, engine controls, replacing damaged handrailing and flying bridge on each side of the pilot house, and completely rewiring it.

Invoices for the work performed were rendered claimant by the St. Louis Shipbuilding & Steel Co., and were paid. In addition, invoices were rendered to claimant by R.C.A. Communications, Inc., R.C.A. Service Company, Inc., and Southwestern Bell Telephone Company for material and services furnished by those companies, which invoices were paid.

The items of repair and the cost thereof are as follows (claimant’s exhibits Nos. 6, 7 and 8):

1. Repair pilot house .................$10,935.77

2. Repair radio equipment ............ 17.98

3. Renew handrailing on starboard side of upper deck house and around pilot house bridge ...................... 770.53

4. Re-install covers over steering gear.. 65.21

5. Replace and install public address system............................ 201.26

6. Temporary repairs ................ 975.79

7. Repair radar equipment............ 239.18

8. Repair mobile telephone............ 76.50

9. Install temporary controls on searchlights, port and starboard........... 648.07

10. Additional radar parts required for ■ installation ........................ 168.52

$14,098.81

This Court has had several cases, similar to the one at bar, the most recent of which is reported in 22 C.C.R.

659 (J. E. Vickers, Et Al vs. State of Illinois). In this; case, the Court adopted the rule in Clement vs. Metropolitan West Side El Ry. Co., 123 Fed. 271:

“A bridge spanning a navigable river is an obstruction to navigation tolerated because of necessity and convenience to commerce upon land. Suchi a structure must be so maintained and operated that navigation may not be impeded more than is absolutely necessary, the right of navigation being, paramount. It is incumbent upon the owner that the bridge be so constructed that it may be readily opened to admit the passage of craft, and! maintained in suitable condition thereto. It is also his duty to place in charge those who are competent to operate the bridge, to watch for signals, and to> open the bridge for the passage of vessels, and for the performance of such delegated duty he is responsible. It is also his duty to equip the bridge’ with proper lights giving warning of the position of the bridge and of its, opening and closing.”

The Vickers ’ case cites the principle of law governing the use of navigable streams by owners and operators, of vessels and bridges, and this Court has determined that it is bound by the Federal regulations and decisions, under the Federal maritime law.

With this background, our first inquiry is directed to the charge that the proximate cause of the collision was the fault on the part of the bridge tender in failing-to exercise reasonable care to see that the draw was clear-before closing the bridge. The facts would seem to support this charge, for the evidence discloses that the area to be viewed by the bridge tender is but 150 feet from the bridge to the lower end of the lock. The M/V Huck Finn was ablaze with light, and, in addition thereto, a 10,000 candlepower searchlight was shining on the right wall'.. The only conclusion that can be reached is that the bridge tender was negligent in not viewing the area before he> commenced to lower the bridge.

As stated by the court in The Royal, 233 F. 296. 298 (E.D.N.Y., 1916):

“The duty also devolves upon the bridge tender, as in the case of any-other draw bridge, not to close the draw in the face of a boat, which has; by signal or by actual approach to the open draw, reached a position where it cannot safely remain or maneuver, if the draw be closed.”

Respondent argues that claimant is not entitled to an award, as it did not comply with Paragraph No. 7 of the Federal Rules and Regulations governing the operation of draw bridges crossing the Mississippi River and its navigable tributaries. The rule is set forth as follows:

“(7) When vessels are approaching a bridge or a draw from the same direction, each vessel shall signal independently for the opening of the draw, and shall be navigated in accordance with the pilot rule applicable to the waterway governing such vessels.”

The facts disclose that the lock tender blew a long whistle, which was for the purpose of directing the bridge tender to open the bridge. Claimant testified that such was a common practice at this particular bridge. In addition thereto, the M/V Blaske blew a long whistle. However, the fact remains that the M/V Huck Finn did not blow a long whistle, and was, therefore, at fault for not complying1 with Rule No. 7 mentioned above.

Thus the case reaches an impasse. Claimant argues that, if the bridge tender had looked, he could not have failed to see- the M/V Huck Finn, as it was elaborately lighted. Respondent argues that, if the M/V Huck Finn had blown a long whistle, the bridge tender would have been fully aware of the fact that two vessels were in the area, both seeking to pass under the bridge.

The Court believes and so finds that the failure to blow the long whistle, as required by regulation, was a material omission of duty on the part of claimant, and one that would be construed as contributory negligence so as to bar a recovery.

Claimant, recognizing this defense, has finally urged that, if the Court finds contributory negligence on the part of the M/V Hack Finn, it should follow the admiralty principles of maritime tort known as Both-to-Blame Buie. Under Federal maritime law, where two vessels come into collision and both are guilty of fault, the damages are divided equally between them, even though there is a disparity of fault between the vessels. Gilmore and Black, The Law of Admiralty (1957), page 402; Intagliata vs. Shipowners and Merchants Towboat Co., 159 P. (2d) 1, 5 (Calif., 1945). This rule also applies to a collision between a bridge and a vessel. Steel All Welded Boat Co. vs. City of Boston, 18 F. Supp. 421, 423 (Mass., 1937). This principle is also set forth in Vol. 45 of Corpus Juris in the chapter on Navigable Waters. See. 80 — Contributory negligence, “where both the bridge owner and those in charge of the vessel are negligent, the practice in the Federal Court is to divide the damages”. Great Lakes Towing Co. vs. Masaba S.S. Co., 237 Fed. 577; Smith vs. Shakopee, 103 Fed. 240.

Respondent has not introduced any evidence as to damages to the bridge, and it would appear from the briefs that the only damage was to the paint on the bridge. The record discloses that claimant suffered damages in the amount of $14,098.81. Applying this rule to the case, claimant would, therefore, be entitled to $7,049.40.

From the evidence in this case, the Court finds that both claimant and respondent were guilty of negligence, and, upon the application of the Both-to-Blame Buie under maritime law, claimant is entitled to an award of $7,049.40.

We, therefore, allow the claim of Federal Barge Lines, Inc., in the amount of $7,049.40.


author: TOLSON, C. J.

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

      Opinion filed January 12, 1960.

    John W. Preihs, Attorney for Claimant.
    Grenville Beardsley, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   TOLSON, C. J.

On December 7, 1959, claimant, Elva Jennings Pen-well, filed a supplemental petition for reimbursement for monies expended by her for medical services and expenses from April 1, 1959 to November 1, 1959.

On December 8, 1959, claimant and respondent filed a joint motion for leave to waive the filing of briefs and arguments, and alleged that claimant’s receipts for payment of medical bills and services constituted the entire evidence in the case.

Claimant was injured in an accident, while employed at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The accident occurred on February 2, 1936, and the original award is reported in 11 C.C.R. 365. This Court retained jurisdiction of the case, and successive awards have been made from time to time.

The petition before the Court at this time again discloses that claimant is permanently disabled, and is entitled to an additional award..

Original receipts, received in evidence, establish the following claim:

Item A: Nursing -----------------------------------------$ 863.50

Room and board for nurses ----------- 372.75

Item B: Drugs and supplies ________________________ 174.80

Item C: Physician -------------------------------- 870.00

Item D: Transportation ----------------------- 80.00

Item E: Miscellaneous ___________________________________ 247.16

Total Expenses -----------------------$2,608.21

An award, is, therefore, made to claimant for monies expended from April 1, 1959 to November 1, 1959 in the amount of $2,608.21.

The Court reserves jurisdiction for further determination of claimant’s need for additional medical care.


text:
    (No. 4802
    United States Fidelity and Guaranty Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.
    Dixon, Devine and Ray, Attorneys for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, United States Fidelity and Guaranty Company, A Corporation, is the subrogee of its insured, John Kavanaugh, Dixon Illinois, by virtue of its net payment in the amount of $559.50 under a collision insurance policy covering a 1952 Buick four-door sedan, which was damaged beyond repair on September 17, 1957, while being driven by one Wesley Washington, an escaped inmate from the Dixon State School, who had stolen the automobile parked in the driveway of the Kavanaugh home.

The claim is predicated upon Chap. 23, Sec. 4041 (formerly Sec. 372a), Ill. Rev. Stats., as interpreted by the Court in Dixon Fruit Company, A Corporation, Et Al vs. State of Illinois, 22 C.C.R. 271.

The amount of the claim is undisputed, and the parties agree that claimant is the sole owner of the claim by virtue of the subrogation receipt, which assigned the interest of John Kavanaugh to claimant.

It is undisputed that the damage was caused by one Wesley Washington, an escaped inmate from the Dixon State School.

Respondent contends, however, that the State was not negligent in exercising its custody over the inmate, and, therefore, not liable for damages. With respect to this contention, the facts surrounding the prior record of, custody of, and escape of Wesley Washington are as follows:

On September 17, 1957, one Wesley Washington and two other inmates escaped from the Dixon State School, a charitable institution located at Dixon, Illinois, over which the State of Illinois had and still has control. Some time between the hours of 11:00 P.M. on September 17, 1957 and 2:30 A.M. on September 18, 1957, the escapees stole the Kavanaugh vehicle, and, while driving on River Street in the City of Dixon, Washington lost control of the vehicle, and ran into a row of parking meters.

The Dixon State School is a State institution operated by the Department of Public Welfare for the care and rehabilitation of mentally retarded individuals. It is not a penal institution. The patients are not restrained, but are free to come and go on the grounds unless their behavior is such as to be a constant threat to their physical or mental well-being. Aggressive or assaultive patients are kept in cottage A-3, and subjected to security measures.

Wesley Washington was admitted to the Dixon State School on March 10, 1955, from Kane County, as mentally deficient. Prior to his admittance, he was reported to have failed to adjust in school, to have been a constant truant, and to have been mischievous. He had been originally placed in the school at St. Charles, where it was determined that he had an apparent disregard for authority. He was then transferred to the Dixon State School.

The record of Wesley Washington, while at Dixon from the date of his admittance up to and including the theft in question, discloses the following acts attributed to him:

March 10, 1955 — Admitted to Dixon State School as mentally deficient.

March 20, 1955 — Assaulted an employee.

April 9, 1955 — Escape and apprehension, burglary of several cars and stealing clothes.

June 10, 1955 — Broke windows in school building.

Sept. 18, 1955 — Impudent behavior toward employee.

Nov. 21, 1955 — Unauthorized absence, returned December 2, 1955.

Feb. 14, 1956 — Unauthorized absence, dissatisfied with job.

April 9, 1956 — Refused to work, incited other boys to join with him.

June 14, 1956 — Unruly, aggressive and attacked employee.

Sept. 1, 1956 — Threatened resident with a knife for refusing to commit sodomy.

Jan. 7,1957 — Unauthorized absence.

Sept. 17, 1957 — Unauthorized absence, involved with Joseph Johnson in car stealing incident in Dixon, Illinois. Returned to custody September 24, 1957.

On September 17, 1957, Washington, who was then sixteen years of. age, was not assigned to a security cottage, but was at liberty on the school grounds. At that time there were no proceedings in progress for his transfer, although he was later transferred to Lincoln State School on October 31, 1958.

All of these facts were established by claimant, who called Dr. A. T. Waskowicz, Assistant Superintendent, Medical, of the Dixon State School, as an adverse witness under Sec. 60 of the Illinois Civil Practice Act. He testified to the facts from the records in his possession, which he described as not complete.

Respondent offered no testimony as to the circumstances surrounding the escape, and contends that, although the record of this inmate was bad, continuous close restraint would defeat the rehabilitation program of the hospital.

While it is true that a certain amount of discretion should rest with the officials in charge of such an institution in pursuing a rehabilitation program, it is no defense to rely solely on the contention of rehabilitation, without establishing what respondent did in exercising a reasonable restraint of such a person.

The evidence offered by claimant is sufficient to establish a prima facie case of negligence on the part of respondent. It is apparent that this inmate should have been kept under greater surveillance than the ordinary inmate. The facts establish that he was not so kept.

Respondent offered no testimony on the point. The facts' pertaining to the surveillance and escape of the inmate were in the exclusive control of' respondent, and would have been presented' had they been favorable to respondent.

We, therefore, conclude that claimant has borne the burden of proving that respondent was negligent in allowing the inmate to escape.

Respondent next contends that claimant’s insured, John Kavanaugh, was contributorily negligent in that he violated so much,of the following statute, being Chap. 95%, Sec. 189, 111. Rev. Stats.:

“No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key.”

With respect to this contention, the facts are as follows: John Kavanaugh had parked his automobile in front of his house at about 6:00 P.M., and had left his keys in the ignition. His wife then drove it on an errand about half an hour after dinner, and on returning parked it in the driveway in front of their home. She had taken the keys of her husband out of the ignition, laid them on the seat, used her own key in driving the car, and unintentionally left her husband’s keys on the seat, when she returned the automobile to its parking place. She removed her own keys from the ignition and locked it.

Mr. Kavanaugh had intended to use the automobile to go to a meeting, but instead rode with a friend. Neither he nor his wife used or entered the automobile thereafter until it was stolen some time after 11:00 P.M., when Mr. Kavanaugh last saw it. It was recovered at about 2:30 A. M. the next morning, after it had been stolen and wrecked.

We recognize that the Supreme Court of Illinois in the case of Ney vs. Yellow Cab Company, 2 Ill. (2d) 724, held that a violation of the statute was prima facie evidence of negligence on the part of the operator of an automobile, and that either a judge or jury, under the facts in the case, could find that such violation was negligence, which proximately caused the injury to the plaintiff.

We do not feel that this case controls the question of contributory negligence in the instant case for two reasons: First, a close reading of the statute reflects that John Kavanaugh did not violate the statute, even though he left the keys first in the ignition and next in the seat. The statute is a part of the Act entitled “Uniform Act Regulating Traffic on Highways” (Chap. 95½, Sec. 238, Ill. Rev. Stats.).

In the same Act is Sec. 117, Chap. 95½, Ill. Rev. Stats., providing as follows:

“The provisions of this Act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways, except:
1. Where a different place is specifically referred to in a given section.
2. The provisions of Articles IV and V shall apply upon highways and elsewhere throughout the State.” (Articles IV and V pertain only to Secs. 133-145 of Chap. 9515, which are not involved herein.)

It is noted from the testimony of the only -witness testifying in the case on the particular point that the automobile was parked in the driveway of a. private residence at the time it was stolen and not upon a public highway.

Sec. 189 does not specifically refer to any particular place, and, therefore, by the terms of the Uniform Act Regulating Traffic on Highways, does not apply to a vehicle left unattended at any place other than on the public highway.

This is the only reasonable construction of the statute. If it applied to all places, then leaving the key in an automobile while parked in a locked garage would be as much a violation of the statute, as would parking it in a car port or private driveway at a-residence. This could not have been the Legislature’s intention.'

We know of no rule at common law requiring the owner of an automobile to keep it locked under the circumstances involved herein, and do not intend to announce such rule ourselves.

Secondly, the Ney case is not controlling, even though we assume that the automobile was left unattended and unlocked on the public ■ highway in front of the Kavanaugh home in violation of the statute.

The factual situations of the two cases differ. In the Ney case a taxi driver left a taxicab unattended with its motor running on the downtown streets of Chicago, where it was stolen by a thief, who in flight ran into the plaintiff’s vehicle. In the instant case, the vehicle was-parked in a residential area in the City of Dixon, Illinois, with its ignition locked. In the night time it was stolen by an escaped inmate, who drove it into a parking meter post on a public parking lot some distance from where it was stolen.

Granting that a jury, or judge- without a jury, might find the proximate cause of damage to the plaintiff in the Ney case to be a violation of the statute, we, as judges of the facts as well as judges of the law, do not feel compelled to follow a permissible jury verdict or court finding of fact in the Ney case as a finding prece- ' dent in this case.

We conclude that the action of the inmate in entering the automobile in the night time, finding the ignition locked, finding the keys on the seat, stealing the car from the front of the residence, and driving it into a post in another part of town, was not reasonably to be foreseen by John Kavanaugh in the exercise of ordinary care for the protection of his property, and constituted the proximate cause of the damage to the Kavanaugh automobile. Consequently, even assuming a. violation of the statute, we do not believe that it constitutes contributory negligence, which proximately contributed to the damage in question, so as to bar recovery by this claimant.

We believe from the evidence in this case that claimant ’s insured,. John Kavanaugh, was in the exercise of ordinary care for the safety of his automobile, that respondent was negligent in exercising custody over the escaped inmate, and, as a proximate result thereof, the vehicle was stolen and damaged.

The claim is, therefore, allowed in the sum of $559.50.


text:
    (No. 4808
    Marie Halloway, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.

    Zwanzig, Thompson and Lanuti and Alexander T, Bower, Attorneys for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Marie Halloway, received injuries to her person when the automobile driven by her husband, in which she was riding as a passenger, ran into the back end of a snowplow truck operated by the Division of Highways, State of Illinois, which was being used to spread cinders on U. S. and State Route No. 52 between Serena and Joliet, Illinois, on February 6, 1956 at 9:30 P. M.

She claims damages in the amount of $7,500.00 by reason of the following allegations of negligence on the part of respondent, as set forth in her complaint:

1. Negligently stopped said truck on the highway.

2. In the alternative, negligently operated said truck at such a slow speed as to constitute danger.

3. Negligently failed to place warning flares along the highway to warn of the truck’s presence.

4. Negligently failed to display a red light or lights, or reflectors on the rear of the truck in violation of the statute, and negligently failed to operate a flashing red light warning device on top of the cab of the truck.

The facts pertaining to the happening of this accident are as follows:

On February 6, 1956, at about 9:30 P. M., claimant was a passenger in an automobile, which was being driven by her husband. They were proceeding in an easterly direction on U. S. Route No. 52. The weather conditions that evening consisted of a freezing, misty rain, and the highway was wet and slippery in spots. Visibility was approximately 200 yards. At a point on Route No 52, approximately 2% miles east of Serena, Illinois, the automobile, in which claimant was riding with her husband, collided with the rear end of a truck owned by respondent. The truck at the time of the collision was traveling in an easterly direction at about six miles per hour. It was occupied by two men, who were agents of respondent. They were engaged in the spreading of cinders on the highway, and-were using a cinder spreader attached to the back of the truck beneath the tailgate.

According to claimant’s testimony, the lights, windshield wipers, defrosters and heater on claimant’s car were all functioning properly. Claimant’s automobile was traveling at approximately 25 to 30 miles per hour at the time of the collision. The truck, as heretofore set forth, was traveling at about six miles per hour. According to claimant, she and her husband, together with their small child, were not conversing at the time of the accident. The husband, however, testified that he and -claimant were carrying on a conversation about claimant’s mother. They both testified they did not see the truck until they were about 12 or 14 feet from it, at which time they saw a yellow blur. Both witnesses testified that the truck lights were not functioning at the time of the collision.

The truck driver and his helper testified that the truck was equipped with three amber clearance lights on the back of the cab facing to the rear; three amber clearance lights on the cab facing forward; a blue flasher light on top of the cab; a six inch red light on the left front side of the truck box facing to the rear; and two kerosene torches hanging on the cinder spreader. According to the driver, the lights had been checked before the truck was taken out, and again a few minutes before the collision, when they had stopped to check their load of cinders. They were all in operation.

At the time of the collision, the truck bed was elevated about one foot from its normal position. Respondent’s witness testified that the elevation of the truck bed at that level did not obscure the clearance lights, the blue flasher, or the six inch red light. Respondent’s agents testified that the cinders were spread directly downward, and did not create dust, because they had been treated with chloride.

From a consideration of these facts, we must deny this claim for the reason that claimant has not borne the burden of proving that respondent was negligent in the manner charged in her complaint.

First, the evidence clearly established that the truck was not stopped upon the highway.

Second, her contention that the State truck, while traveling only six miles per hour, violated Sec. 148(a) of the Uniform Traffic Act is not well taken. It reads as follows:

“No person shall drive a motor vehicle at such slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation of his vehicle or in compliance with law.”

The statute relied upon is inapplicable by reason of the terms of the same statute at Sec. 120(e), Ill. Rev. Stats., Chap. 95½, wherein it provides that the Act shall not apply to persons and equipment while actually engaged in work upon the surface of the highway. At the time of this occurrence, it is undisputed that the truck in question was spreading cinders upon the highway.

Third, there was no duty on the part of respondent to place warning flares on the highway, as sub-par. (b) of par. 218, Uniform Traffic Act, provides, “Whenever a motor vehicle of the second division is disabled during a period between sunset and sunrise, flares, lanterns, red reflectors or other signals shall be lighted and placed upon the highway”. There is no evidence that respondent’s truck was disabled at the time of the collision, or that it was standing on said highway. All of the evidence indicates that the truck in question was moving, even though at only six miles per hour. There is no common law duty under these circumstances to place flares on the highway, and obviously the statute was not violated, as a reading of it reflects.

Fourth, with respect to the question of lights, claimant and her husband are in direct conflict with the two witnesses for respondent. These are the only witnesses offered by either side. None of them were impeached. The conflict in the testimony was on a specific and material point. The contradictions cannot be harmonized, nor is there room for construction. Obviously, one or the other of the two sets of witnesses have either testified falsely, or were mistaken. It would be sheer speculation for us to say which is the correct version.

In view of this state of the record, the evidence is evenly balanced on the question of the presence or absence of the lights required by law, and claimant has, therefore, failed to bear the burden of proof on this allegation of negligence.

In Ackley vs. State, 22 C.C.R. 41, we were confronted with a similar situation regarding the question of burden of proof, when the evidence was in irrevocable conflict. We there reviewed the law on the question, and followed-the rule set forth in Brady vs. Chaffee, 163 Ill. App. 242, which has many times been applied. Quoting from a portion of that decision at page 46 in the Ackley case:

“An affirmative statement by one witness, met by a flat categorical denial by another, of equal credibility, does not meet the elementary requirement of the law that a plaintiff must make out his or her case by a preponderance of the evidence.”

Consequently, in view of the fact that claimant has failed to bear the burden of proof placed upon her by the law governing such cases, we must deny her claim.


text:
    (No. 4823
    Alexander Storts, A Minor, By Louise Storts, His Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.

    Giambrone and Cohen, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Alexander Storts, a minor, 17 years of age, while an inmate of the St. Charles Reformatory, received an injury to his right eye, which ultimately required its removal, and brings this action against respondent in the sum of $7,500.00 to recover damages by reason thereof. Claimant at the time of his injury was picking up bales of hay, which had been ejected from a hay baler, and loading them onto a flat bed wagon, approximately four feet high, at the Illini State Boys Camp at Marseilles, Illinois.

He testified that, as he was lifting a 125 pound bale of hay, hay seed and dust from it lodged in his right eye; that his eye immediately began to hurt, and he was told by the man in charge to cease working and sit in the station wagon. He remained at the field for about four hours before returning to the camp where he reported to a staff member, who told him “to take it easy and it would come out”.

He could not sleep well that night, and the eye was painful. The following day it was very red, and the staff member took him to Dr. Dunn at Marseilles for treatment and medication. The next morning his eye had turned white, and he was sent to the Eye, Ear and Nose Clinic in Chicago for treatment, and eventually the eye was removed on October 30, 1956.

The Departmental Report offered in evidence by respondent as exhibit No. 1 states that the matter was first called to the attention of respondent several days after September 17, when he reported the condition to the camp director, Mr. Clem Smith. When this was brought to the attention of Mr. Smith, the boy was examined by Dr. Dunn at Marseilles on September 19,1956. The report then confirms the fact that the eye was eventually removed.

Claimant charges in his complaint that respondent negligently failed to supply him with a reasonably safe place to work, and negligently failed to supply him with safe protective equipment or goggles, so as to protect his eyes from injury from seeds, straw and foreign objects, which were continually being discharged from the automatic baling machine. As a proximate result thereof, a foreign object, piece of debris, or hay seed was caused to be thrown into his right eye resulting in its eventual removal.

Neither claimant nor respondent filed briefs, claimant having requested the Court for permission to waive the filing of briefs, which request was granted.

The only testimony in the record pertaining to the occurrence was that of claimant. He testified on direct examination on this point as follows:

“Q. When you were lifting them, did any part of the bale come out?
A. Just hay seed and dust came out. Some of it got in my eye. It happened a few times. Usually I got it out.
Q. What, if anything, happened while you were lifting this bale of hay on this day, September 17, 1956; what, if anything, happened to you while you were so lifting these bales?
A. I got hay seed in my eye. I knew it was in there. I told the guy that was in charge, Mr. Flowers, I think his name was.”

From the above, it is apparent that the hay seed was not caused to be thrown into his eye by the baler, as is charged in the complaint. Moreover, there is no evidence that he was required to work directly in the stream of hay seed and debris coming from the baler. His only duty at the time of this occurrence was to pick up the bales after they were ejected from the moving baler and load them on the wagon. Consequently, the stream of hay seed from the baler was not the proximate cause of this occurrence. On this point, he stated that the hay seed came from the bale of hay, which he was lifting.

With respect to the contention that respondent did not furnish claimant with a safe place to work, we find that the evidence does not establish this charge. It is common knowledge that 17 year old boys have always performed similar work on the farms throughout this State, and there is nothing in this record to establish that claimant was incapable of likewise performing such work.

With respect to the charge of negligently failing to supply gog’gles or other protective equipment, we find that there was no duty on the part of respondent to do so.

To hold otherwise would require that respondent do that, which commonly is not done by farmers engaged in the loading of bales of hay onto a wagon. - No evidence was introduced to establish any extraordinary conditions that would require the supplying of goggles.

If we were to hold respondent'liable in this case, our decision would of necessity apply the standard of absolute liability, which is not the law of Illinois.

As in the case of Dargie vs. East End Boulders Club, 346 Ill. App. 480, this case is one of those involving an injurious occurrence for which the law furnishes no redress, since the misfortune of claimant is not attributable to any fault on the part of respondent.

In the above case the court cited with approval a quotation from a Minnesota case, Dahl vs. Valley Dredging Co., at page 491 of the opinion. Although the factual situation in this case differs from the instant case, the court therein set forth what seems to us to be an excellent statement of the test to be applied in this case. The court stated as follows:

“ * * The care taken by people generally to prevent injury from articles in common use is a proper guide for the courts in determining what constitutes due care in respect to such articles. The law does not exact a degree of care in guarding any article, which will make the great majority of the possessors of that article chargeable with habitual or continuous negligence. Due care in any case is the care usually exercised by men of ordinary pmdence in like cases and under like circumstances. This is the standard by which the conduct of those charged with negligence is measured.’ ”

Consequently, we must deny this claim for the reason that the evidence fails to establish that respondent was negligent, as charged in the complaint.


text:
    (No. 4837
    Hawkeye-Security Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.
    Grenville Beardsley, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On August 21,1958, claimant filed a complaint alleging that taxes on the net receipts of its agencies, as provided in Section 414 of the Illinois Insurance Code, in the amount of $806.38 had been mistakenly overpaid, in that claimant failed to claim a deduction in said amount for fire department taxes paid in 1956.

The Departmental Report substantiates the allegations of the complaint, and it appears as though there is no doubt but what claimant is entitled to such credits.

An award is, therefore, made to claimant in the amount of $806.38.


text:
    (No. 4847
    Village of Barrington, A Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.

    Thomas A. and Byron S. Matthews, Attorneys for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

This claim arises by reason of the lapse of an appropriation prior to the payment of an amount due the Village of Barrington by the State of Illinois. At the time the appropriation lapsed, there were sufficient unexpended funds available to cover the amount of the claim.

There is no dispute that the amount is due and owing, and respondent’s Departmental Report filed herein supports claimant’s contention.

The matter was heard by Commissioner Herbert G. Immenhausen, and, after studying the report, exhibits, and evidence, we concur with Commissioner Immenhausen’s recommendation that the claim be allowed, and herewith adopt his report as our opinion in the cause:

“The Village of Barrington, A Municipal Corporation, by Thomas A. Matthews and Byron S. Matthews, its attorneys, filed a complaint with the Court of Claims on November 22, 1958 alleging that it entered into a written agreement on June 29, 1956 with the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, to perform maintenance and snow removal work on those parts of State Routes Nos. 63 and 59 lying within the corporate boundaries of said Village. (Copy of said agreement attached as exhibit A.) The authority for said agreement is granted by Chap. 121, Par. 296d, Ill. Rev. Stats.
Exhibit B correctly and accurately states the cost of the work done. The cost of the work was $533.89, and is due and owing. This case came up for hearing on March 4, 1959. Respondent did not file an answer to said complaint, but filed a Departmental Report of the Division of Highways. In it the Division admitted entering into the contract, and that the work was done, but the contractual obligation was performed between July 1, 1955 and June 30, 1957, and was payable from the 69th biennial appropriation, which lapsed on September 30, 1957. The bill for the work was not received until May 29, 1958, which was after the appropriation had expired.
Complainant called as a witness, Paul Purcell, who testified he was Superintendent of Public.Works of the Village of Barrington, and that he had supervision of the Street Department. He identified exhibits A, B and C. He testified that the work was done under said contract, and that the charge was fair and reasonable. It appears from the evidence and exhibits that the work contemplated was satisfactorily done, and the only reason it was not paid was because the bill was not presented and certified before the appropriation lapsed on September 30, 1957. I recommend that an award be made to the Village of Barrington for $533.89.”

The claim of the Village of Barrington, A Municipal Corporation, is, therefore, allowed in the sum of $533.89.