text:
    (No. 4897
    Richard L. Ward, II and Ann Ward, by Joan S. Ward, their mother and next friend, and Joan S. Ward, individually, Minor children and Surviving Spouse of Richard L. Ward, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1962.

    John E. Cassidy, Jr., Attorney for Claimants.
    William G. Clark, Attorney General; Madalyn Maxwell, Assistant Attorney General, for Respondent.
   Perlin, J.

On June 6, 1959, Richard L. Ward, age 30, who was a full-time member of the Illinois National Guard and a Commissioned Officer in the United States Air Force, was killed in an aircraft accident, while in the line of duty and acting pursuant to orders from his Commander-in-Chief and superior officers. The accident occurred near the Greater Peoria Airport, Peoria County, Illinois, when a jet fighter plane, which Ward was flying, failed to gain altitude on take-off, crashed and burned.

Surviving the deceased were his "wife, Joan S. Ward, age 31; his daughter, Ann J. Ward, age 3, who was born August 3, 1956; and his son, Richard L. Ward, II, age 4 months, who was born on March 11, 1959. Said survivors are the claimants in this proceeding.

Although this case was commenced under Ill. Rev. Stats., Chap. 129, Sec. 143, that section was changed in 1957 to Ill. Rev. Stats., Chap. 129, Sec. 220.53 (1957), which provides as follows:

“When officers, warrant officers or enlisted personnel of the Illinois National Guard or Illinois Naval Militia are injured, wounded or killed while performing duty in pursuance of orders from the Commander-in-Chief, said personnel or their heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

The provisions of former Sec. 143 and current Sec. 220.53 are substantially similar, and the arguments of the parties in this case are applicable to the new as well as the old statutory sections.

The only question presented in this proceeding is the amount of compensation, which should be awarded.

At the time of his death, the deceased was a full-time, salaried member of the Illinois National Guard. He held the rank of Captain, and received a salary of approximately $800.00 per month. His earnings for the year 1958 were $9,071.86, and, for 1959, until his death in June, his earnings were $5,147.01. He was the sole means of support of his wife and children.

The deceased held several life insurance policies, including two which secured a Real Estate Mortgage, having an unpaid balance of $16,400.00. Most of these policies denied all or part recovery in the event death-occurred while operating an aircraft. Claimants allege that the full amount of all policies totalled $36,000.00, and’ that, since Mrs. Ward received only $7,240.00 of this amount, a base figure in computing her award should be the $29,359.10, which she did not receive because of the “Aircraft Exclusion” clauses.

Claimants further urge that, on the basis of estimated minimum expenses of Mrs. Ward and the two children, Mrs. Ward should be awarded $55,000.00, with Ann and Richard receiving respectively $9,000.00 and $12,600.00, for a sum total of $76,600.00.

The widow is currently receiving from Federal Funds monthly payments of $165.00 from the Veteran’s Administration and $81.80 from Social Security benefits, while the children are receiving $136.40 per month from Social Security benefits, and will continue to do so until they reach 18 years of age, for a total monthly income of. $383.20.

Claimants contend that their request for $76,600.00, is allowable under the Statute because of the holdings, in Military and Naval Code cases, such, .as Dudley vs. State of Illinois, 21 C.C.R. 225, 258, that this Court'has' “not considered the Workmen’s Compensation Act to be either a ceiling or floor under our awards. ” They further cite the following language in the Dudley case as justification for the amounts claimed:

“One of the primary purposes of both Public Law 108 and the 'applicable section of the Military and Naval Code is to render more attractive to potential members service in the National Guard, and to afford pro-, tection to members thereof in activities, which concededly are often -ex-, tremely dangerous. In other words, both statutes serve as stimulants to voluntary military service, which service is of the utmost importance to the safety, welfare and protection of the Nation and the State.”

It should be noted, in enunciating this principle of public policy, the Court was merely setting forth reasons as to why Federal benefits should not preclude State payments.

Respondent argues that, as a matter of public policy, benefits payable to a National Guardsman, or his dependents, should not greatly exceed benefits paid to dependents of others, who serve their government equally faithfully in different capacities, since it is as important to the State to encourage the employment and retention in service of competent dedicated persons in the civil aspects of government as it is in the military, and discrimination in the awarding of benefits to the two such classes of persons would have an inevitable ill effect.

Respondent further urges that the maximum amount of recovery should be not more than that expressed in the Illinois Court of Claims Act section on tort liability or of Sec. 138.7 of the Workmen’s Compensation Act.

In arriving at the amount of awards arising out of the death or injury of Illinois National Guardsmen, the Court of Claims has often used the Workmen’s Compensation Act as a guide. Cases in which the Act was so used include the following:

Williams vs. State of Illinois, 4 C.C.R. 209; Tranchita, Et Al, vs. State of Illinois, 10 C.C.R. 535; Hall vs. State of Illinois, 12 C.C.R. 464; Quigley vs. State of Illinois, 17 C.C.R. 27; Falls vs. State of Illinois, 21 C.C.R. 229; Brown vs. State of Illinois, 21 C.C.R. 409; and Sypniewshi vs. State of Illinois, 21 C.C.R. 586.

In Tranchita, Et Al, vs. State of Illinois, 10 C.C.R. 535, where a member of the Illinois National Guard, while in the line of duty, received personal injuries resulting in his death, the Court held:

“No hard and fast rule exists for determining what amount should be allowed. In certain of these cases the Court has seen fit to take as a guide. but not as a fixed rule, the provisions of the Illinois Workmen’s Compensation Act in determining what payment would be reasonable and customary for the loss sustained.”

The Court then allowed recovery by calculating how much would be allowed had the deceased been an ordinary State employee, limited to recovery under the Workmen’s Compensation Act.

It is the opinion of this Court that, while the section of the statute under which recovery is here sought appears to impose no maximum amount on its face, the Legislature adopted this provision as remedial legislation, and did not intend that it be applied without equal standards or reasonable limitation of amount.

Section 220.53, under which this action is pursued, provides that financial help or assistance will be allowed to personnel, or their heirs or dependents, if death or injury occurs while performing duty in pursuance of orders from the Commander-in-Chief. This requirement is nearly identical in practice to the Workmen’s Compensation standard, which allows compensation for injury or death if “suffered in the course of employment within this State” (Ill. Rev. Stats., Chap. 48, Sec. 138). In neither instance is it required that the employee, or his successors in interest, prove that he was free from wrongdoing, and that the employer or the State is a tort feasor or wrongdoer. The comprehensive liability imposed by the Workmen’s Compensation Act is discussed by the Illinois Supreme Court in Decatur Ry. Co. vs. Industrial Bd., 276 Ill. 472, 474, where the Court states:

“The liability imposed by the Workmen’s Compensation Act has no-connection with the negligence of either the employer or the employee. An injury arising out of and in the course of employment creates the liability without any question of fault on the part of either the employer or the employee.”

The intent of Workmen’s Compensation legislation is to provide practically automatic and certain relief to an injured employee upon mere proof that the injury arose in the course of covered employment within the State. This precludes the doubtful contest for recovery, which the employee would face under common law, wherein such recovery would require proof of the employer’s negligence, plus a negation of the defense of contributory negligence, assumed risk, and the fellow servant doctrine. Similarly, See. 220.53 of the Military and Naval Code makes recovery for injuries or death suffered in the line of duty almost certain.

However, it has long been recognized that a fundamental purpose of the Workmen’s Compensation statutes is “to provide"not only for employees a remedy, which is both expeditions' and independent of proof of fault, but *alsó'ifor employers 'a liability which is limited and deter’miilát'e.” (Bradford Electric Light Co. vs. Clapper, 286 U.S. 145, 76 L. Ed. 1026, 52 S. Ct. 571, 82 A.L.R. 696.)

, In the landmark case of New York Central Railroad <Xvs. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667, Ihe United States' Supreme Court upheld the constitutionality of the New York Workmen’s Compensation statute, and declared:

“If the employee is no longer able to recover as much as before in case of being injured through the employer’s negligence, he is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty, .and expense of establishing negligence or proving the amount of the damages. Instead of assuming the entire consequences of all ordinary risks of the occupation, he assumes the consequences in excess of the scheduled compensation of risks, ordinary and extraordinary.
“On the other hand, if the employer is left without defense respecting the question of fault, he at the same time is assured the recovery is limited, and that it goes directly to the relief of the designated beneficiary.” (Emphasis supplied.)

For the foregoing reasons, liability without fault must be necessarily limited to protect the State of Illinois from the astronomical claims, which might be urged by claimants under the Military and Naval Code, just as the State is protected from injury claims by ordinary State employees under the Workmen’s Compensation Act.

Because of the absence of requirements showing either freedom from contributory negligence on the part' of claimant or negligence on the part of the State, there is no basis for treating injury cases arising under the Military and Naval Code as ordinary tort actions subject to the ad damnum provisions of the Court of Claims Act, Ill. Rev. Stats., Chap. 37, Sec. 439.8 (D).

We recognize that there have been a few instances where this Court did not follow its general practice of using the Workmen’s Compensation Act as a gauge to the amount of recovery allowed in personal injury and death cases under the Military and Naval Code, as in the Dudley case, cited above, and Roberts vs. State of Illinois, 21 C.C.R. 406. We find, however, that recovery based on established standards is essential to the dispensing of equal justice.

We shall henceforth allow claimants in personal injury or death cases brought pursuant to the Military and Naval Code, Sec. 220.53, and similar provisions, to recover an amount no greater than the maximum prescribed for similar claims under the Workmen’s Compensation Act in effect in the State of Illinois at the time the injuries were incurred. We are cognizant that in most cases the Federal Government has made substantial payments to the injured person and his survivor. In determining the extent of aid to be contributed by the State, we will disregard any payments from the Federal Government or other sources.

The ruling of the Court herein does not conflict with the decision of the Supreme Court in Hays vs. Illinois Transportation Co., 363 Ill. 397, which held that the Workmen’s Compensation Act does not apply to those. in military service, since the Compensation Act is only being used as a guide in determining the extent of our awards, and the cases acknowledgedly arise under the Military and Naval Code.

The applicable provisions under the Workmen’s Compensation act in effect, when the accident in question occurred on June 6, 1959, were as follows :

“(Ill. Rev. State., Chap. 48, Sec. 138.7)
“Sec. 7. The amount of compensation which shall be paid for an accidental injury to the employee resulting in death shall be:
(a) If the employee leaves any widow, child or children whom he was under legal obligation to support at the time of his accident, a sum equal to 9.25 times the average earnings of the employee, but not less in any event than $7,500 and not more in any event than $10,750.
3. Whenever in paragraph (a) of this Section a maximum of $10,750 is provided, such maximum shall be increased in the following amounts:
$12,000 in the case of 2 such children (‘such children' refers to unemancipated children of the deceased under the age of 18 years).”

It is the opinion of this Court, therefore, that claimants shall be awarded the sum of $12,000.00.


source: Caselaw Access Project

author: Feabeb, J.

license: Public Domain

text:
    (No. 4911
    Gary Mallory and Susan Mallory, minors, by Ruth M. Mallory, their Mother and next friend, and Ruth M. Mallory, and Merton Mallory, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1962.

    Ebert and Seib, Attorneys for Claimants.
    William G. Clark, Attorney General; Harold A. Cowen, Assistant Attorney General, for Respondent.
   Feabeb, J.

This is an action brought by claimants, Gary Mallory and Susan Mallory, minors, by Buth M. Mallory, their Mother and next friend, Buth M. Mallory, individually, and Merton Mallory, against respondent, State of Illinois, to recover damages for personal injuries and loss of consortium brought on behalf of Merton Mallory, for injuries sustained on the 12th day of October, 1959, on State Highway No. 19 at or near the DuPage-Cook County line in the State of Illinois.

There has been filed in this cause a complaint, an amended complaint, and a second amended complaint.

The complaints allege that one of the plaintiffs, Buth M. Mallory, was driving a motor vehicle in an easterly direction on State Highway No. 19, at or about 7:00 P.M., at approximately % of a mile west of Boselle Boad in the Township of Hanover, County of Cook, State of TTHnois, and at said time and place was in the exercise of ordinary care and caution for her own safety.

It was also alleged that Gary Mallory and Susan Mallory, her minor children, were riding as guest passengers, and that they were at all times exercising due care and caution for their own safety. Due to the age of the children, there is no question of contributory negligence on their behalf.

In the second amended complaint, an action is brought on behalf of Merton Mallory, husband of Buth M. Mallory, for loss of consortium with the necessary allegations in regard thereto.

Respondent, proceeded to trial under a general denial of the facts set forth in the complaints pursuant to Rule 11 of this Court.

On the evening of the accident, Ruth M. Mallory, along with her two children, Susan and Gary, and Leola Underwood and her daughter, Jennifer, were driving from a girl scout camp, which was about four miles east of Elgin, Illinois, and were returning to their home in Chicago. Mrs. Underwood was sitting in the front seat on the righthand side, the two small girls were in the back, and the small boy was riding to the right of Mrs. Underwood.

Respondent was charged with the following acts of negligence: constructed said highway at the place of the accident to permit a sudden narrowing of the road; failure to post warning signs of the narrowing of the road; allowing the shoulder of the road on the south side to erode and wash away, leaving a drop off of about six inches.

Briefly, Ruth M. Mallory was driving her husband’s 1953 Dodge automobile in an easterly direction at or about the hour of 7:00 P.M., driving approximately 40 m.p.h., when suddenly the right wheels of the automobile dropped onto the shoulder causing her car to go out of control over into the westbound traffic lane and strike another vehicle.

There were offered in evidence photographs showing the extensive damage to the vehicles, namely claimants’ exhibits Nos. 6 through 10, inclusive. The photographs clearly indicate that both vehicles were total wrecks. One man, Albert T. Miter, was killed in the westbound vehicle.

There were also claimants’ exhibits introduced in evidence showing the highway and the shoulder, and one exhibit, which has been marked as petitioners’ exhibit No. 3, which we assume is claimants’ exhibit No. 3, of measurements showing the width of the highway in question.

The injuries of Buth M. Mallory were severe. Medical statements, with certain stipulations that they may be admitted into evidence, and that the doctors would testify in accordance thereto, were admitted in evidence, along with medical bills and testimony as to damages claimed as a result of this accident.

As we find in some of the cases, there is a lot to be desired as far as a record is concerned. It is especially difficult when you consider that this Court is not only passing on the legal aspect of each and every case, but also sitting as a jury and as a trier of the facts.

We are mindful of the fact that passengers, particularly the Mallory children, could not be guilty of anything, taking into consideration their tender years, age, experience and dependence. Their claims will-then rise or fall on whether or not it was the sole negligence of their mother, which was the proximate cause of the accident, or the negligence of respondent, as charged.

As to Buth M. Mallory and the claim of her husband, Merton Mallory, their claims will rise or fall on the question of whether or not it was the negligence of the State of Illinois, Division of Highways, and its failure to erect warning signs as to the narrowing of the pavement and the maintenance of the shoulders, and also the question of contributory negligence and the negligence of the operator of the automobile, Buth M. Mallory, which was the proximate cause of the accident resulting in injuries.

The Commissioner, who heard this case, has made reference to certain testimony. We believe, because of the seriousness of the accident and the questions of fact involved, that it is going to be necessary to take each witness separately, and to make a resume of the evidence.

Two abstracts of evidence have been filed in this case.

The first witness called for claimants was Russell Mallory, a brother-in-law of Ruth M. Mallory, who testified that he went to the scene of the accident the following day. That he also went back to the scene of the accident on October 14, 1959, and took some pictures, claimants’ exhibits Nos. 1 through 5, inclusive, measured the road, and that he found that it narrowed 25 inches on each side. He did not measure the actual drop-off, but did have his wife stand apparently on the south side of the road next to the paved portion of the highway, being the traffic lane that Ruth M. Mallory would have been driving in on the night of the accident. This is shown in claimants’ exhibit No. 4, which also indicated where the roadway narrows. He estimates that there is a drop-off of approximately 8 inches, and that it runs for approximately 76 yards along the south side of the highway in an easterly direction.

Some place in the record in this case, we have found that counsel for claimants has referred to ruts. The exhibits and testimony in support thereof does not indicate that the shoulders of the road were in disrepair, nor were there any ruts along the south side of the paved portion of the highway.

On cross-examination, Russell Mallory testified that he drives over this road about two or three times a week, and has for the past year, and that he knew the condition of the highway. He marked the measurements on claimants ’ exhibit No. 3, signing his name.

The record is not clear as to the figures of 22 feet, 2 inches, but we assume, although he did not so testify, that the paved portion of the road was 22 feet, 2 inches wide.

The next witness called on behalf of claimants was Joseph Ganziano, who lived on Route No. 1, his address being Box 9, Roselle, Illinois, being about a block and one-half from the scene of the accident. He testified that he had occasion to travel this road many times, and that he lived in Cook County where the road is blacktop, and that, when it comes to DuPage County, it is a concrete highway that narrows down approximately 2 feet. That there had been a drop-off on the south side of the road, but he did not know the extent of the drop-off, but that it did extend for some 75 yards. That he traveled back and forth at least twice a day over the road. That the condition existed for at least one year prior to the accident. That he never notified anyone about it.

At this point in the trial of the case, there appears to have been a stipulation by claimants’ counsel and counsel for respondent that other witnesses would testify to the same condition.

Joseph Ganziano also testified that he did not notice any signs along the highway warning the traveling public of the narrowing of the paved portion of the road.

Claimants’ next witness was Leola Underwood, who was a passenger in the car at the time of the accident. Her testimony was that they were coming from a girl scout camp, and were on their way back to their home in Chicago. The camp was located at Bartlett Woods, and she was riding in the car with Mrs. Mallory, who was driving. That with them was Susan and Gary Mallory, and daughter, Jennifer. That at the time of the accident it was dark. That Mrs. Mallory had the lights of the car on, and that the weather was nice. That they were traveling east on Route No. 19 towards Chicago. That all of a sudden the car swerved, and felt like a bump. That she does not drive a car herself, but has been a passenger in automobiles for 25 years, and that, in her opinion, the Mallory car was traveling about 40 m.p.h. That she recalled nothing after the accident, as she was taken to the hospital in an ambulance.

On cross-examination, Leola Underwood testified that she did not notice anything wrong with the road, and does not recall any traffic on the road at the time.

Claimants’ next witness was Kenneth Eackow, the State Trooper, living in Bellwood, Illinois. He testified that, on the night in question, he received a call at about 7:20 P.M., and, when he got to the scene of the accident, there was a great deal of congestion. He stopped automobiles, that the injured had already been removed from the scene, and that he proceeded to take the information that he could get at the scene of the accident, namely, the names and types of automobiles involved, and proceeded to the Sherman Hospital at Elgin, Illinois.

He testified that the day following the accident he completed his examination. That he picked up official police photographs, and stopped back at the scene (the photographs were never introduced in evidence). That he measured the highway at the point of the accident with the aid and assistance of someone in a highway department truck. He found that the roadway narrowed exactly 27 inches on each side. He also identified claimants’ exhibits Nos. 2 and 4, and testified that they clearly portrayed the highway where the accident occurred. That the drop-off varied in depth from 2% inches to 5 inches, but he did not measure the length. That he did judge that the automobile came back onto the highway about 50 feet from the point where the car dropped off. That he saw no warning signs of any kind. That the speed limit at the scene of the accident was 65 m.p.h.

On cross-examination, there seemed to be some mix-up as to whether or not the accident occurred in Cook County or DuPage County, and the officer, believing it occurred in Cook County, handled the investigation.

The photographs referred to were photographs of the automobiles, which the Court asked to have admitted in evidence as the Court’s exhibits. Counsel for claimants at this point stated for the record that exhibits Nos. 6 through 10, inclusive, were offered only to show damage to the vehicles at the time of the accident and for no other purpose.

At this stage of the interrogation, the Commissioner interrogated the officer in respect to his questioning any of the occupants of the car, and he stated that the only people he was able to talk to were the two young girls, who knew nothing about the accident, and that all of the information that he had was what he gathered from the scene and the hospital records. He then went on to describe the age of Ruth M. Mallory as 42, and the injuries that he found to exist from the hospital records in regard to the claimants and passengers.

The officer further stated that he did not have an opportunity to talk to ihe driver of the car, which was struck by Ruth M. Mallory. This man’s name was Albert T. Miter, and he was killed in the accident.

Ruth M. Mallory testified that she lived at 4837 Grace Street, Chicago, Illinois, with her husband, Merton Mallory, and two children, Susan, 12, and Gary, 7. That she was a housewife, and was involved in an automobile accident while returning to Chicago from a girl scout camp, and driving her husband’s 1953 Dodge automobile. That she left the girl scout camp, which was about 4 miles east of Elgin, Illinois, at around 7:00 P.M. That it was dark, and she had her lights on, and was driving about 40 m.p.h. That traffic was light, and she did not have the radio on. That all of a sudden the right wheels went off the road, and, in trying to get back on the road, she heard a crash. That is all that she remembers. That she saw no signs along the highway. That she woke up in the hospital a few days later. That her left leg had been amputated, and her arm was in a cast. She then described her other injuries, and testified as to bills.

On cross-examination, Ruth M. Mallory testified that she had been over this same road about a year ago. That she was driving on the righthand side of the road, between the white line and the edge of the road, but does not recall exactly how far she was from the right edge of the road. That apparently the wheel of her car went off the road, and she refers to a rise, which appears to be a lip or drop-off from the paved portion of the shoulder, and lost control. That when her car left the road, she was traveling about 40 m.p.h. She made a mark on claimants’ exhibit No. 2 where her car went off the road. That she put her foot on the brakes, and tried to stop by pushing the brakes, that there was a crash, and that she did not remember a thing after that.

At this point claimants’ attorney asked that the matter be continued. That he would like to amend his pleadings to make the husband of Ruth M. Mallory a party, and bring an action for loss of consortium, as well as to amend the pleadings to the extent that the road narrowed 25 inches to conform to the proof. This was allowed, and a subsequent hearing and cross-examination of Ruth M. Mallory was had.

Ruth M. Mallory then stated that she did not remember seeing the car that she struck. All that she remembers is the right wheel going off the side of the road, and she tried to stop and applied her brakes, and turned back onto the road, but that she could not get the car onto the road, and she lost control. She doesn’t know how far she was driving her car from the white center line. That she went off of the road where it narrowed. That she does not remember how far from the point that she marked on exhibit No. 2 that she tried to get back on the road.

On being interrogated by the Commissioner, Ruth M. Mallory testified that she had been over the road once or twice before, but that her husband was driving. This was 9 months before the accident. That she had occasion to look at the road, and she knew it was not in good condition. That she slowed down to 20 m.p.h. at the time that she went back on the road. She does not remember stepping on the accelerator, but one wheel was off the pavement and one was on.

Respondent called William R. Stahl, Civil Engineer of the Division of Highways, who testified that, at the time of the accident, he knew nothing of the general condition of the road in the area. After the accident he found no warning signs in the area, and he ordered gravel placed along the edge of the pavement.

Under cross-examination, William R. Stahl testified that he went to the scene of the accident about 3 days afterwards, and saw no warning signs indicating that the pavement narrowed.

At this point of the trial, there was a stipulation as to the medical reports and bills, which were offered and received in evidence.

Ruth M. Mallory was called on redirect examination by her counsel. She testified that she felt the car go off the road, applied brakes, and tried to get back on the road, slowing the car down little by little in trying to get back on the road, and does not recall anything after that. That besides pumping the brakes to try to slow down, after slowing down, she attempted to get back on the road. She estimates that she slowed down to about 20 m.p.h., and got back on the road.

Leola Underwood was recalled, and testified that, when the car went off the road, she hollered to Ruth to stop, and she said, “I am trying”, and she noticed that the car swerved and bounced and bumped along.

On cross-examination, Leola Underwood testified that she did not see what Mrs. Mallory did, but that she ■estimated the speed of the car to be 35 to 40 m.p.h. She does not know how far the car traveled along the shoulder of the road before she tried to get back. That the car did slow down a bit after she applied the brakes.

Merton Mallory, husband of Ruth M. Mallory, testified as to the marital relationship after the accident, and also about the various injuries and expenses that he had incurred.

From the testimony of claimants’ witnesses, there was no question but what the State failed to place an appropriate sign warning the traveling public that the pavement narrowed at the point where Ruth M. Mallory drove her car off of the highway onto the shoulder. Also, the State had not only constructive notice of this condition, but also actual notice, and it should have been apparent to respondent’s agents that they should have posted signs warning the traveling public that this roadway narrowed, so that an operator of a vehicle would be placed on notice before coming to the point where the roadway was narrowed some 27 inches on each side.

This was a newly constructed blacktop road, and there were no white lines painted on the outside edges, which would make it apparent that the roadway narrowed ; and a person driving near the outside edge of the paved portion on a black asphalt road would have difficulty observing the narrowing unless there were signs or painted lines on the outside edge of the highway.

Inasmuch as Ruth M. Mallory’s car struck another vehicle traveling in the opposite direction, she was also confronted with oncoming lights, which would reduce her vision, wherein she might not be able to see the narrowing of the roadway, even though she was driving with proper lights on, which we find from the evidence in this case.

We are mindful of the fact that we have held many times that the State is not an insurer of everyone traveling upon its highways, and, further, that the State does not have to maintain the shoulders in the same condition as the paved portion of the highway.

As to Ruth M. Mallory’s conduct in the operation of her vehicle in trying to get back onto the paved portion after the right wheel ran off onto the shoulder, to decide what she should have done in those circumstances would merely be speculating. She was faced with a sudden emergency, and, under the conditions, we find that she acted as an ordinarily prudent person would have acted under the same or similar circumstances.

As to the other claimants, there is no question of contributory negligence on their behalf, and from our findings it is believed that the proximate cause of the accident resulting in damages to claimants was due to the State’s failure to give proper warning of the narrowing of the roadway at the point where the car left the highway.

There is no necessity of prolonging the opinion by reciting the nature and extent of Ruth M. Mallory’s injuries, and itemizing her bills. She has lost a leg, and suffered other serious injuries.

It is, therefore, the opinion of this court that a claim should be allowed on behalf of Ruth M. Mallory in the sum of $25,000.00.

As to Gary Mallory, after reviewing the nature and extent of his injuries, it is our opinion that a claim should be allowed to Ruth M. Mallory, as mother and next friend for Gary Mallory, in the sum of $1,500.00.

As to Susan Mallory, after reviewing the nature and extent of her injuries, it is our opinion that a claim should be allowed to Ruth M. Mallory, as mother and next friend for Susan Mallory, in the sum of $500.00.

As to Merton Mallory, it is our opinion that an award should be made to him in the sum of $1,000.00, or, making a total award for all claimants of $28,000.00.


author: Fearer, J.

text:
    (No. 4966
    Charles L. Kellams and Dorothy Kellams, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1962.

    Frank H. Byers, Attorney for Claimants.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Fearer, J.

This is a claim for damages sustained subsequent to the year 1955 by claimants, Charles L. Kellams and Dorothy Kellams, the owners of a home located on the following described real estate, in the City of Decatur, Illinois:

Lot Twenty (20) in Block One (1) of Urban Place as per plat recorded in Book 149, page 107, of the records in the Recorder’s Office of Macon County, Illinois, except the North Seventy-six feet (76').

The charges of negligence in the complaint consist generally of faulty construction in the reconstruction of North 22nd Street, at the intersection of East Prairie Street, in the City of Decatur, Illinois.

The home in question is located on the northwest corner of the intersection of East Prairie Street and North 22nd Street. In the reconstruction of the intersection respondent rebuilt a sidewalk and driveway to claimants ’ home.

Claimants charge that the concrete driveway approach and the concrete highway slab were one solid piece of concrete abutting the northeast corner of claimants’ residence, thereby transmitting vibrations caused by heavy traffic in the intersection where a slight rise appears. It is also alleged that respondent neglected to allow sufficient spacing between the concrete highway slab and the concrete driveway so as to prevent vibrations caused by heavy traffic, which claimants contend caused cracks in the foundation, plaster to fall in various parts of the house, and cracks to appear in the walls.

The Department of Public Works and Buildings, Division of Highways, of the State of Illinois, did undertake the reconstruction of the intersection in question. However, the highway in question is under the jurisdiction of the City of Decatur for maintenance, as it lies within the corporate limits.

A Departmental Report was admitted in evidence, which had attached thereto a drawing of the section of highway in question and location of claimants’ home. The only objection raised by claimants’ counsel was that the drawing was not to scale. He also objected to that portion showing conveyance of former owners, and that portion showing payment to claimants for other property, and what was received from a third party. These matters objected to, we will not consider.

Part of the hearing was held in claimants ’ home, and the Commissioner hearing this case inspected not only that portion of the highway objected to, the driveway and the sidewalk, but the damaged portions of the home, which were testified to by Mr. and Mrs. Kellams.

Both Mr. and Mrs. Kellams testified that, when heavy vehicular traffic passed through the intersection, it caused certain vibrations, which resulted in the damages they are now claiming.

It is contended by claimants that the city is the agent of respondent. Without further comment, the City of Decatur is not the agent of respondent, nor can the City of Decatur bind, in any way, the State of Illinois.

This cause must rest solely upon the question of whether or not the State of Illinois, through its agent, the Department of Public Works and Buildings, Division of Highways, negligently reconstructed the slab of concrete in question at the location referred to, and the sidewalk and concrete drive abutting claimants ’ home.

The record is silent as to the distance from the bump or rise in the highway to claimants ’ property. Claimants did not offer any expert testimony that improper engineering practices were employed in the construction and laying of the concrete at the intersection, or in the laying of the sidewalk and driveway on claimants ’ property.

From the Departmental Report it appears that a bituminous felt expansion joint was used, allowing a complete separation of the paved driveway approach from the adjacent sidewalk; and, that a one-inch expansion joint exists between the concrete of the sidewalk and driveway and claimants’ home, except where an earth berm intervenes.

Mr. J. T. Doyle, an architect with five and one-half years experience with an engineering service in Decatur, Illinois, testified that he noticed cracks in the plaster and foundation; that he examined the house on the average of every six months; that the vibrations were caused by trucks; and that the vibrations originated from the bump in the street. However, his first observance of the street and home was in 1959,. He had visited in the home of claimants since 1954, but his visits were not for the purpose of examining defects of the street and damages to the home until 1959, which was some three years after the street and concrete slab in question were constructed.

He did testify, however, that the construction of pavement leading to the garage could not have caused any damage to the home; and that the sole cause of such damage was vibrations, which were caused by the bump in 22nd Street. Furthermore, he did not testify that the State was negligent in any manner in the construction of the street, the laying of the concrete slab, or failure to construct and lay the concrete without sufficient and proper expansion joints.

There is an entire absence of testimony offered by claimants that respondent, by and through its agents, negligently used unsound engineering practices in the building and construction of the street in question.

Respondent called a resident engineer, who testified that the street was widened; old pavement in claimants5 driveway was removed, due to the change in the grade of the driveway as a result of the reconstructed street, and that, without objection from claimants, a new sidewalk was built from the driveway to the house. He further testified that standard, approved, expansion joints were placed in the new pavement in keeping with accepted methods of construction, and that after the construction there was no bump in 22nd Street; that any bump that might have resulted was caused by a blow-up at the junction of Prairie Avenue, and that such a blow-up cannot be prevented. However, it was his opinion that any damages claimed by claimants to their home were not caused by the bump in Prairie Avenue, as it was too far away from the home to cause such damage. He further testified that the new street project was commenced on April 14, 1955, and finished on October 1, 1956, which included the laying and completion of the driveway and sidewalk for claimants.

On cross-examination he testified that the cracks could have been caused by moisture; also, there was evidence that cracks in the foundation, walls and ceiling could be caused by the settling of the house.

Respondent also called Robert W. Johnson, who worked as an engineer on the project. He testified also that the work was done by respondent’s agents according to good engineering practices; that the expansion joints were large enough to prevent vibrations from reaching the house; that special contraction joints were placed along the center line of the street in accordance with good engineering practices; that it was his opinion that the bump did not cause the damage to claimants’ house, and that such damage, as claimants were contending, to the plaster could result from settling of the foundation, the condition of the soil, and/or contraction of plastering. As to the damage to the sidewalls, such could occur from moisture coming in from the foundation.

One other witness was called by claimants, Walter J. Ware, a general contractor, who estimated that the cost of repairs to claimants’ home would be around $1,200.00 to $1,500.00.

From the record and the testimony of the respective witnesses, we do not believe it material to consider the exhibits offered and received in evidence, nor do the citations submitted by claimants throw any light upon the legal aspect of this case for the reason that claimants have failed to maintain the burden of proof, and to prove by a greater weight of evidence that respondent, through the Department of Public Works and Buildings, Division of Highways, did not adopt good engineering practices in the construction of the highway and the building of the sidewalk and driveway.

Claimants’ contention that eminent domain proceedings should have been commenced by respondent is without merit, and will not be considered in this opinion.

It is, therefore, the order of this Court that claimants’ claim be denied.


author: Tolson, C. J.

text:
    (No. 5048
    George E. Beardsley, Audrey Anderson, John W. Hunt, Rand McNally and Company, and Illinois Bell Telephone Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1962.

    John W. Hunt, Attorney for Claimants.
    William G. Clark, Attorney General, for Respondent.
   Tolson, C. J.

On July 2, 1962, the several claimants in the above entitled cause joined in a complaint seeking an award for services and materials furnished the Illinois Industrial Development Authority.

The case was submitted to this Court by a stipulation of fact joined in by all claimants and respondent, and is set forth as follows:

“Claimants, George E. Beardsley, Audrey Anderson, John W. Hunt, Rand McNally and Company, and Illinois Bell Telephone Company, by John W. Hunt, their attorney, and respondent, State of Illinois, by William G. Clark, Attorney General of the State of Illinois, its attorney, hereby stipulate and agree as follows:
(1) The 1961 General Assembly of the State of Illinois passed, and the Governor of the State of Illinois approved a statute entitled ‘An Act to create the Illinois Industrial Development Authority for the purpose of creating and increasing job opportunities in labor surplus areas of the State of Illinois, to define its powers and duties, to provide for the transfer of funds in the State treasury, and to make ain appropriation in connection therewith.’ (Ill. Rev. Stats., 1961, Chap. 48, Pars. 831-847.) The bill for that Act was H.B. No. 1618 of the 1961 General Assembly.
(2) , Section 19 of said Act (not printed in Ill. Rev. Stats., 1961) provided as follows:
‘The sum of $100,000, or so much thereof as may be necessary, is appropriated to the Illinois Industrial Development Authority created by this Act for the ordinary and contingent expenses of such Authority.’
(3) The Illinois Industrial Development Authority created by said Act was duly organized for the transaction of business at a meeting called for such purpose held at Room 3900, Prudential Plaza, Chicago, Illinois on October 11, 1961.
(4) By Resolution No. 4, duly adopted at said organizational meeting and never thereafter altered or rescinded, said Authority employed claimant George E. Beardsley as its General Manager commencing as of October 12, 1961 to serve for the term provided in the by-laws (i.e., during the pleasure of the Authority), with compensation at the rate of $12,000 per year. By said Resolution No. 4 said Authority, in addition, authorized the General Manager to employ, for and on behalf of the Authority, a secretary-clerk, with compensation not to exceed a rate of $450 per month.
(5) Claimant George E. Beardsley duly qualified for employment as General Manager of said Authority. His employment in such capacity commenced as of October 12, 1961 and continued through March 22, 1962, during all of which time he faithfully and diligently performed his duties as said General Manager.
(6) Pursuant to said Resolution No. 4, claimant George E. Beardsley, on or about February 28, 1962, employed, for and on behalf of said Authority, claimant Audrey Anderson as secretary-clerk with compensation at the rate of $425 per month. Claimant Audrey Anderson’s employment commenced as of February 28, 1962 and continued through March 22, 1962, during all of which time she faithfully and diligently performed her duties as said secretary-clerk.
(7) By Resolution No. 5 duly adopted at the aforesaid organizational meeting of said Authority, which resolution was never thereafter altered or rescinded, said Authority employed claimant John W. Hunt as general attorney to said Authority commencing as of October 12, 1961, to serve in such capacity until further action of the Authority, with compensation on the following basis:
(a) For general services, the sum of $25 per hour for time actually expended;
(b) For services in any litigation, the sum of $25 per hour for time actually expended; all conditioned upon said claimant providing his own office space, secretarial help, supplies, and the like at his own expense, with the Authority to be obligated only for such expenses, e. g., long-distance telephone charges and travel expenses, as are customarily borne by the client of an attorney.

(8) Claimant John W. Hunt commenced serving in the capacity of general attorney to said Authority as of October 12, 1961 and continued to serve in such capacity through March 22, 1962, during all of which time he faithfully and diligently performed his duties as general attorney to said Authority.

(9) By voucher No. 66 of said Authority, dated March 19, 1962, claimant George E. Beardsley, for and on behalf of said Authority, submitted to Michael J. Howlett, as State Auditor of Public Accounts of the State of Illinois, a request for payment from the State treasury of his compensation and that of claimant Audrey Anderson for the period March 16, 1962 through March 31, 1962. Pro-rating the compensation shown on said voucher No. 66 for the period March 16, 1962 through March 22 (rather than March 31), 1962, the amount of compensation for which payment was requested for said period (namely, March 16 through March 22, 1962) was as follows:
George E. Beardsley______________________________________$241.99
Audrey Anderson---------------------------------------------------------$102.83
(10) By voucher No. 69 of said Authority, dated March 19, 1962, George E. Beardsley, for and on behalf of said Authority, submitted to said Michael J. Howlett, as State Auditor of Public Accounts for the State of Illinois, a request for payment from the State treasury • of compensation for John W. Hunt for legal services rendered as general attorney to said Authority for the period March 1, 1962 through March 15, 1962 in the amount of $712.50.
(11) By voucher No. 68 of said Authority, dated March 19, 1962, George E. Beardsley, for and on behalf of said Authority, submitted to said Michael J. Howlett, as State Auditor of Public Accounts for the State of Illinois, a request for payment from the State treasury of the sum of $57.20 to claimant Rand McNally and Company representing the purchase price of a commercial atlas purchased by said Authority from said claimant and delivered to said Authority on or about March 14, 1962.
(12) By voucher No. 70 of said Authority, dated March 19, 1962, George E. Beardsley, for and on behalf of said Authority, submitted to said Michael J. Howlett, as State Auditor of Public Accounts for the State of Illinois, a request for payment from the State treasury of the sum of $53.53 to claimant Illinois Bell Telephone Company representing payment for telephone services furnished to said Authority by said claimant during the period December 19, 1961 through January 19, 1962.
(13) On March 23, 1962, the Illinois Supreme Court filed its opinion in a certain cause known as Franklin B. Bowes, Et Al, vs. Michael ]. Howlett, Auditor of Public Accounts of the State ¡of Illinois, Et Al, docket No. 37014. The effect of this opinion was to declare unconstitutional the statute described in paragraph (1) hereinabove. Petitions for rehearing were denied on May 23, 1962.
(14) As a result of said opinion of the Illinois Supreme Court, the State of Illinois, acting by and through the said Michael J. Hewlett, as State Auditor of Public Accounts for the State of Illinois, has refused and persists in refusing to issue warrants for the payment of the vouchers of said Authority described in paragraphs (9) through (12) hereinabove, notwithstanding the fact that all goods and services for which said vouchers were drawn and submitted to said Michael J. Hewlett were furnished and performed prior to the date of said opinion of the Illinois Supreme Court.
(15) Of the sum of $100,000 appropriated in 1961 to the Illinois Industrial Development Authority, as set forth in paragraph (2) herein-above, a sufficient amount remains unexpended to pay all claims joined in the complaint herein in full.
(16) No assignment or transfer of any of the claims joined in the complaint herein, or any part thereof, or any interest therein, has been made. Each claimant is justly entitled to the amount in the complaint herein claimed from the State of Illinois, after allowing all just credits.”

An examination of the case referred to in the stipulation discloses that a taxpayer’s suit was filed in the Circuit Court of Cook County attacking the constitutionality of the Authority. The plaintiffs sought to enjoin the Auditor and the Treasurer from disbursing public funds, and the chairman and members of the Authority from receiving or disbursing funds under the provisions of the legislation.

The trial court entered a declaratory judgment pronouncing the several acts as valid, and dismissed the complaint. On appeal, our Supreme Court reversed the judgment of the trial court, and said:

“While the Act contains a severability clause, we fail to see how the purpose of the Act could be carried out even though it be assumed that it is constitutional but for the appropriation feature. The legislative plan, as expressed by the legislation, is dependent upon the ability of the Authority to raise money. The removal of Section 18 from tthe Act introduces with full impact the limitation of section 7 on borrowing, and thus for practical purposes renders the Act ineffective in its present form.
“In view of our holding, it is unnecessary to consider other constitutional questions raised by plaintiff.”

In the instant case, claimants are requesting an award for services and materials furnished in good faith to an Authority created under a law, which the Supreme Court has found to he unconstitutional. If such an award could be made, the Legislature would in turn be called upon to implement the award with an appropriation from public funds.

Article IV, Section 19 of the Constitution of the State of Illinois, prohibits the General Assembly from paying any agent, servant or contractor, after services have been rendered, under any agreement or contract made without express authority of law. Fergus vs. Brady, 277 Ill. 272.

Since the Act creating the Authority is unconstitutional, and the Auditor and Treasurer are enjoined from disbursing public funds, there would be no way that the General Assembly could make a valid appropriation, as-there is no existing law.

An award will, therefore, be denied.


author: Perlin, J.

text:
    (No. 4844
    Gladys Schnell and Manley W. Schnell, Claimants, vs. State of Illinois, Respondent.

      Opinion filed July 27, 1962.

      Petition of Claimants for Rehearing denied December 28, 1962.

    Edward Neville, Attorney for Claimants.
    William G. Clark, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimants seek to recover for personal injuries sustained by Gladys Schnell on July 27, 1958, when the motorbike, upon which she was riding, struck a hole in State Eoute No. 1 at a point approximately one and one-eighth miles north of the intersection of State Eoutes Nos. 1 and 33. The highway in question is under the jurisdiction of the State of Illinois.

The highway pavement, with which we are concerned, is twenty feet wide, and consists of eighteen feet of brick with a one foot strip of concrete at either edge.- The evidence shows that the accident area was in a section of State Eoute No. 1, which covered a three or four mile distance of rough brick pavement, and which contained patches of blacktop in various places.

For claimants to recover, they must prove:

(1) That Gladys Schnell was in the exercise of due care and caution for her own safety;

(2) That the State of Illinois was negligent, as charged in the complaint; and

(3) That the negligence of the State of Illinois was the proximate cause of her personal injuries and damage to her property. (McNary vs. State of Illinois, 22 C.C.R. 328.)

The accident occurred on the afternoon of Sunday, July 27, 1958, while claimants were riding motorcycles with a group of other riders in a southerly direction. Claimants presented testimony of the four other motorcyclists, who were riding with claimant, Gladys Schnell, to the effect that there was a hole near the center line of the highway, which was approximately five feet in length and two to three feet in width, and that the deepest point, located at the southern-most edge of the hole, reached a depth of six inches.

The evidence further indicates that Mrs. Schnell, aged 39, was operating her motorcycle at a speed of 40 to 45 miles per hour when the front wheel of the motorcycle allegedly hit the hole in question, and threw it into the air. The motorcycle then skidded down the highway some 150 feet beyond the hole.

The group of five cyclists had been riding in a “staggered” formation. Russell Mattoon, who was riding ahead of Mrs. Schnell, said he noticed the hole and rode to the side of it, but did not call out a warning, since he was too far ahead. Another rider, Leland Cooley, was also riding ahead of Mrs. Schnell, but did not notice the hole, since he was operating his cycle near the outside edge of the road.

One of claimants’ companions testified that 45 miles per hour was a safe speed.

Claimants presented the testimony of the four cyclists, and that of Donald Walker, a State Highway patrolman, who stated that blacktop had been put in the hole at some time prior to the accident. The patrolman also said that he knew of the hole before the accident. Claimants contend that, because the hole had been previously patched, respondent had actual or constructive notice of its condition, and was, therefore, negligent.

Three employees of the Division of Highways testified for respondent. Ira Harbaugh, District Supervisor for the section of highway upon which the accident occurred, testified that he traveled on the particular section on July 25, 1958, two days before the accident occurred, looking for holes and defects, and did not notice the hole at that time. LeRoy Plew, a Highway Maintenance man, said that he had done some patching on the section generally, on July 24 and 25, 1958, and was over the stretch of highway where the accident occurred on the day after the accident, and did not find the hole. Another maintenance helper failed to observe the hole on July 24 and 25, 1958.

In the opinion of this Court, claimant, Gladys Schnell, has failed to prove her freedom from contributory negligence. The accident occurred in daylight; the hole should have been readily visible from the motorbike, which is normally a highly maneuverable vehicle. The hole in question extended at most 3 feet into the lane of traffic, which allowed 7 feet of pavement width to avoid striking it. It would appear that a person riding such a vehicle at a speed appropriate to prevailing conditions should have been able to avoid striking the alleged hole in this case. The evidence showed that this was a rough brick road, and travelers upon such a road should be alert for irregularities in the surface.

In Bloom vs. State of Illinois, 22 C.C.R. 582, 584, the Court stated:

“It has been well established, and this Court, as well as other courts, have held many times that the State is not an insurer of those traveling upon the highway; and that, where people are aware of a condition, such as in this case, they should use care and caution, which an ordinarily prudent person would use under the same or similar circumstances.”

Two other riders in the same party had passed the hole without difficulty, and one, who had apparently been riding in about the same position as Mrs. Schnell, had noticed the hole and avoided it. We can only conclude that, had claimant been reasonably alert and observant, she could have avoided this unfortunate incident.

Furthermore, it appears that the State was reasonably diligent in maintaining this stretch of highway, since they had been examining and repairing this area only two days before the accident.

Claimants have failed, in the opinion of this Court, to sustain their burden of proof, and an award is, therefore, denied.


text:
    (No. 4950
    Northwestern National Insurance Company of Milwaukee, Wisconsin and Standard Insurance Company of New York, A Corporation, subrogees of William Schwartz and Frances Schwartz, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1963.

    Abner Goldenson, Attorney for Claimants.
    William G. Clark, Attorney General; Harold A. Cowen, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimants bring this action as subrogees of William Schwartz and Frances Schwarz for damages caused to real and personal property owned by said subrogors at 1445 Talcott Road, Park Ridge, Illinois, on December 6, 1958, when a Del Mar aerial target fell from an airplane operated by a member of the Hlinois National Guard.

Claimant, Standard Insurance Company, who had insured the real property, paid the sum of $593.43 for its repairs, and Northwestern National Insurance Company paid the sum of $129.90 for damages to the personal property contained therein. Claimants bring this action under the subrogation provisions of the insurance policies issued by them, and seek reimbursement for the amounts paid the insureds.

Claimants contend that respondent, through its agents, members of the Illinois National Guard, was negligent in the operation, control and maintenance of the aircraft and the Del Mar target attached thereto.

The parties have stipulated that, on December 6, 1958, an airplane operated by the Illinois National Guard was pulling a Del Mar target in the general area of Park Eidge, Illinois. They have also stipulated that, if the State is found liable, the amounts requested by claimants in this proceeding represent the actual damage sustained.

William Schwartz, the owner of a ranch-type house located at 1445 Talcott Eoad, Park Eidge, Illinois, testified as follows: He and his wife had left their home on Talcott Eoad about 11:00 A.M. on December 6, 1958. At that time the building and contents of the house were in good condition. They returned about 1:00 P.M. that same day and found insulation,- plaster and debris spread all over the living room. Mr. Schwartz immediately ran outside, and saw what appeared to be a rocket protruding from the roof of his home. Schwartz called the police, who noticed the telephone number of 0’Ha-re Field on the protruding object.

Schwartz then called 0 ’Hare Field, and about fifteen minutes later several men in uniform arrived, and removed the object, later identified as a Del Mar target, from the roof. Upon further inspection, Mr. Schwartz found part of the target lying outside the house. Pictures of the target and damage to the building and contents were taken by officers from O’Hare Field, and copies were introduced into evidence by claimants.

Mr. Schwartz further testified that the officers tried to clean up the damage, and that someone came over to cover the hole in the roof temporarily.

The following day, in response to a call from O’Hare Field, Mr. and Mrs. Schwartz visited the Field, and were shown the plane involved in the accident, and the cable which had been attached to the target. The cable had been taken apart, and was being examined to determine the cause of the break.

Respondent introduced the testimony of three witnesses. These witnesses described the nature of the target as follows: That it is made of fiberglass, and fits into a cone-shaped “ring” called the “basket”, which is put into a position off the wing of the plane; that the cable to which the target is attached is made of high tensile steel, and is .034 inches in diameter and some 8,000 to 9,000 feet long; it is operated by a propeller, and held in check by an electrical brake; that the cable extends from the basket out on the wing through a series of pulleys; that there is no warning light to indicate when the cable is extended, but there is a counter in the cockpit, which indicates the number of feet the cable is extended.

Respondent’s first witness was Major Thomas W. Alies, the pilot of the plane in question. He testified that, shortly after take-off for a scheduled low target mission, he noticed a warning light on the instrument panel indicating a malfunction of the landing gear. He continued to orbit the airport while checking the condition of the aircraft, and just east of the airport he glanced around to check traffic. He noticed the Del Mar target, which is a large red object, flapping violently off on the right hand' side of the aircraft. He stated that “before we could take any action, the Del Mar broke loose and left the airplane.” One of the interceptor airplanes taking part in the maneuvers viewed the aircraft aloft, but saw no visible damage. There was about ten feet of cable trailing out of the basket, which was retracted, and the plane continued its mission.

Major Alies testified that before taking off he examined the basket for tightness, checked to make certain that the target fit snugly, and checked the cables to see if they were taut. He did not inspect the reel mechanism nor the brakes, because these mechanisms are hidden. The Major said that in the instant case the target had extended some way by itself, and was approximately ten feet past the end of the plane at the time he first noticed it. He further testified that the actual cause of the target falling was a rupture of the cable, and that the target apparently extended without his releasing it due to some defect in the mechanism, probably a slipping of the brake.

Major Alies also said that he was accompanied by a second pilot on the mission, Captain John Sheedy. Captain Sheedy was not called to testify, but his statement was included in a Departmental Report filed with the Court. His report states that he was scheduled to operate the target towed by the plane, but that a malfunction of the gear took his attention, and he was reading through the check list of gear operations when the mishap occurred.

Respondent then introduced testimony of National Guard Quality Control Supervisor Leonard Cox as to the inspection routine usually followed, but he could produce no evidence as to any inspection made on this particular flight. Sergeant Cox said that there were periodic inspections of the target and reel, but he had no knowledge of when such check was made on the plane in question. Sergeant Cox did not produce any records of alleged checking, explaining that the records are required to be kept only six months, and that more than two years had elapsed at the time of this hearing.

Sgt. Michael Calzaretta, a Radar Mechanic for the Illinois National Guard, testified for respondent. He stated that he had examined the aircraft after the accident, but knew nothing about its inspection prior to takeoff. He said that the end of the cable was frayed, and that there was tangled material, which was snipped off so it would be ready for service again. He stated that the break in the cable occurred 5 or 6 feet from the end of the wire, and that on the usual pre-flight inspection the reel is drawn out and 150 or so feet of cable is snipped off. Sergeant Calzaretta further stated that no inspection is made of the brake after the safety pin is removed prior to flight, but that a slight entanglement in the wire within the reel itself could have caused the target to be released, as well as a partial release of the brake. He did not personally know if anyone had made a pre-flight inspection.

There is obviously no question of contributory negligence in this case.

Respondent contends that claimants have failed to show any specific negligence on the part of respondent, and have not proved their case by a preponderance of the evidence.

In the opinion of this Court, the doctrine of res ipsa loquitior is properly invoked by claimant. In Charles M. Kenney, Administrator, vs. State of Illinois, 22 C.C.R. 247, 257, the Court stated:

“Under the maxim ‘res ipsa loquitur’, our courts have announced many times that where a thing, which has caused injury, is shown to be under the management of the party charged with negligence, an accident is such as in the ordinary course of things does not happen, if the management uses proper care. The accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care.”

In the Kenney case, a tree limb on the Illinois State Fair Grounds fell, killing a pedestrian. Respondent’s evidence that it did not know the condition of the tree, and that it kept a crew, which inspected the trees and the grounds, was held insufficient to rebut a presumption of negligence.

The Court in the Kenney case also quotes from McCleod vs. Nel Co. Corp., 350 Ill. App. 216, 223, where plaster in a hotel room fell upon guests while they were sleeping, causing personal injuries:

“In 38 Am. Jurs. 1,003, title ‘Res Ipsa Loquitur’, Section 306, it is said that the doctrine has had frequent application in cases of injuries resulting from falling objects and substances; that, in order to invoke this doctrine in an action for injury from a falling object, the fall of the object must, according to common experience, be so unusual in occurrence, when due care is exercised by the defendant, as to carry inherent probability of negligence on his part.”

In Mertel vs. State of Illinois, 21 C.C.R. 558, this Court allowed recovery for damage incurred by a truck when a bridge guard gate dropped on it, where the Court found no evidence in the record sufficient to rebut the presumption or inference of negligence raised by the application of the doctrine of res ipsa loquitur.

In the instant case, respondent has offered no evidence to rebut the presumption of negligence raised by the facts. There is no question but that the Del Mar target was under complete management and control of the agents of respondent, and that the target would not ordinarily drop off had respondent used proper care, thus bringing this case within the res ipsa loquitur doctrine.

In the opinion of this Court respondent is liable for the damages inflicted on the real and personal property of William and Frances Schwartz, and we accordingly award damages in the amount of $593.43 to the Standard Insurance Company of New York, and $129.90 to the Northwestern National Insurance Company of Milwaukee, Wisconsin.


author: Perlin, C. J.

text:
    (No. 4980
    Edward Oltman and Maurice Transport Co., Inc., Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 22, 1963.
    Dunn and Dunn, Attorneys for Claimants.
    William G. Clark, Attorney General; by Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimants, Edward Oltman and Maurice Transport Co., Inc., seek to recover damages to property and for personal injuries, which were allegedly incurred as a result of the drop of a bridge owned and controlled by respondent.

On June 15,1960, at approximately 5:00 A.M., claimant Edward Oltman, an employee of claimant Maurice Transport Co., Inc., was driving a petroleum transport consisting of a 1960 International Tandem Tractor and 1959 Fruehauf Trailer from North Pekin, Illinois to Decatur, Illinois. Both units were six months old at the time. As he approached Lincoln, Illinois on Route No. 121, he had occasion to cross a bridge approximately four miles north of Lincoln. He did not notice anything unusual, as he entered upon the bridge and proceeded to cross; whereupon, as he reached the south end, he hit a bump, which caused the unit to he thrown into a series of humps down the highway. He was able to bring the unit under control approximately one-fourth of a mile past the bridge. It was then discovered that the south end of the bridge had fallen 8 to 10 inches, thus causing the series of bumps.

As a result of the accident, the trailer was damaged, and repairs were necessitated to the extent of $910.97, which amount claimant Maurice Transport Co., Inc., requests in this proceeding. Claimant Edward Oltman requests $8,000.00 damages for personal injuries he allegedly incurred from the accident. He claims to have bumped bis head on the roof of the truck a number of times before it was brought under control.

Claimants allege that respondent was negligent in its duty to provide a safe surface for travel on the bridge in that it failed to inspect said bridge and maintain it in good repair. Respondent is charged with permitting a concrete footing of the bridge to break loose, thus causing the south end of the bridge to fall nearly one foot, causing an unsafe and dangerous condition and obstruction to ordinary traffic.

Respondent denies that it was negligent in any manner, and contends that it did not have notice, either actual or constructive, of the alleged defect.

George Garvey, a State Trooper, who investigated the accident, testified that the bridge had dropped between 8 and 10 inches below the floor of the bridge on the south end.

Nicholas Szabo, the Civil Engineer for the Illinois Division of Highways district in which the bridge was located, testified that he had made an inspection of the bridge on April 8, 1960. His inspection report made at this time was offered in evidence. The report stated that pier gaps and the bearings of the truss beam were cracked, and that there was scouring on the south side of the south pier of the truss span. The report further indicated that the general condition of the bridge was good, and there was no indication on the report that repairs should have been made.

Mr. Szabo testified that one of the cracked piers, which he examined, was the one which was responsible for causing the bridge drop. He explained that the scouring noted in his report was erosion of soil about five or ten feet from the south pier in question. However, he stated that the cracks looked like they were of a “weathering variety”, and did not need immediate repair, nor did the scouring condition itself require immediate correction. Mr. Szabo further testified that his report was in the hands of the Department of Highways a week to ten days after it was made on April 8, 1960, some two months prior to this accident.

The District Maintenance Engineer, Paul Pearson, testified that he instructed Mr. Szabo to make the inspection, and that he received the report. He stated that the last repair made to the bridge occurred about four years before the accident. He examined the bridge the day of the accident, and testified that, in his opinion, the cause of the collapse was the longitudinal crack in the south pier weakened by the dead weight of the bridge itself and the passing vehicle. He stated that the fall of the truss would cause the floor of the bridge to drop approximately twelve inches.

In view of the above testimony, and the accompanying pictures and reports, the Court cannot accept respondent’s argument that it had neither actual nor constructive notice of the condition of the bridge. It is clearly shown that two months before the accident the Department had in its possession a report, which indicated the nature of the defect — a crack in the bearings of the south pier, which ultimately caused the accident.

This Court has ruled that respondent is bound by a greater degree of care in the maintenance of bridges than the maintenance of other portions of the highway (Skaggs vs. State of Illinois, 21 C.C.R. 418). Respondent is, in the opinion of the Court, chargeable with negligence, which was the proximate cause of the accident.

The next question here involved is the extent of the damage to claimants. There is apparently no disagreement over the amount of $910.97, which is sought by claimant Maurice Transport Co., Inc., for property damage to the tractor and trailer. However, damages in the amount of $8,000.00 requested by claimant Edward Oltman is not supported by the evidence.

The evidence reveals that claimant Oltman bumped his head several times in the course of the accident, and afterwards noticed that he had a headache and “was aching all over.” He continued work, and three days after the accident first went to a doctor. He was given medical treatment consisting of diathermy and pills for a period of about six months, and has incurred medical expenses of $118.00.

Claimant’s doctor testified by deposition that claimant was, as of June, 1961, still alleging lumbar-sacral pain.

Claimant Oltman testified that, despite his complaints, he lost no work because of his injuries, and was1 at the date of this hearing able to engage in his normal work and athletic activities.

It is the opinion of this Court that claimant Edward Oltman be awarded damages in the sum of $750.00, and claimant Maurice Transport Co., Inc., be awarded $910.97.


author: Tolson, J.

text:
    (No. 5042
    International Harvester Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 22, 1963.
    Barber and Barber, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, J.

On June 11, 1962, International Harvester Company filed its complaint alleging that on October 20, 1960 respondent engaged claimant to make certain repairs to an International Harvester truck, which was owned by the State.

A Departmental Report filed in this case recites that the work was ordered, and thereafter performed by claimant in a satisfactory matter, and that the charge in the amount of $1,199.06 was usual and reasonable.

The Departmental Report further alleges that the bill was not forwarded to the Division of Highways until after September 30,1961, at which time the 71st biennial appropriation had lapsed. It, therefore, could not be paid.

A stipulation was entered into by claimant and respondent stating that the complaint and the Departmental Report shall constitute the record in this case.

After an examination of the files, it is apparent that claimant is entitled to reimbursement for services performed as set forth in the complaint.

“This Court has had occasion to pass upon several matters of a similar nature. In these previous cases, we have held that an award would be entered where there were sufficient unexpended funds available in the appropriation to pay the claim had it been received in apt time. Funds were available in the present case at the time the services were performed. The materials were furnished, and the work satisfactorily performed and accepted by respondent. The only reason it was necessary for claimant to file the claim under consideration was due to the fact that the appropriations from which it could have been paid had lapsed.” (Material Service Corporation, an Illinois Corporation, vs. State of Illinois, 22 C.C.R. 735.)

An award is, therefore, made to the International Harvester Company, A Corporation, in the amount of $1,199.06.


text:
    (No. 5050
    Standard Oil Company, Division of American Oil Company, Incorporated, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 22, 1963.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Standard Oil Company, seeks to recover $1,873.65 for sales of merchandise to various departments of the State of Illinois during the years of 1960 and 1961.

In addition to the complaint filed on July 5, 1962 and the exhibits attached thereto, the record consists of a motion of respondent to dismiss, because of lack of an attorney’s appearance for claimant; an order denying such motion to dismiss; a stipulation of the parties; and an order of the Chief Justice waiving briefs.

The stipulation entered into between the parties hereto includes the following:

“1, That claimant is a corporation engaged in the manufacture and sale of petroleum and petroleum products.
2. That, during the years 1960 and 1961, certain sales of gasoline, oils, greases, tires, tubes and services were made to various departments of the State of Illinois by claimant, acting through its dealers, agents and employees, and that claimant is lawfully authorized to file its said claim in the Court of Claims of the State of Illinois, and receive payment for all of said items aforesaid.
3. That claimant has tendered to the various departments of government of the State of Illinois invoices and statements for the merchandise' purchased by the State of Illinois, but payment was refused, because said statements and invoices were not received by the proper department or departments in time to be included within the appropriations of the Seventy-Second General Assembly of the State of Illinois, which adjourned June 30, 1961.
4. That, since the filing of its said claim with the Court of Claims of the State of Illinois, the sales charges or schedules attached to said complaint have been verified and confirmed by each of the departments of the State of Illinois, which show an aggregate indebtedness of $1,873.65.
5. That no third person, nor anyone else, has any interest in said claim, and that said sum of $1,873.65 is lawfully due claimant from the State of Illinois.”

This Court has consistently held that claims based upon satisfactory merchandise and reasonable bills will be allowed when appropriations for the biennium have lapsed before the bills have been submitted, and there was sufficient money on hand at the time the merchandise was furnished.

Claimant, Standard Oil Company, is hereby awarded $1,873.65.


text:
    (Nos. 4726, 4727 and 4728—Consolidated
    Alrebt J. Wendler, Anna Mae Pizzini, and Helen S. Francis, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

      Petition of Claimants for Rehearing denied March 18, 1963.

    Baker, Kagy and Wagner and Francis D. Conner, Attorneys for Claimants.
    William L. Guild, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Three separate complaints have been filed by Albert J. Wendler, Anna Mae Pizzini, and Helen S. Francis growing out of an accident, which occurred on July 13, 1955 near a curve approximately 500 feet west of the city limits of Fairmont City, Illinois, on U. S. Route No. 40, between an automobile being driven by Joseph Bruske, who was traveling in an easterly direction, and an automobile owned and driven by Albert J. Wendler, in which the other two claimants were riding, being driven in a westerly direction toward St. Louis, Missouri.

The record consists of the following:

1. Copies of complaints in each case

2. Departmental Report

3. Transcript of evidence

4. Motion of claimants for an extension of time to and including January 25, 1958 in which to file abstract and brief, together with attached proof of service of a copy on the Attorney General

5. Order of the Chief Justice granting the motion of claimants for an extension of time to and including January 25, 1958 in which to file abstract and brief

6. Motion of claimants for a further extension of time to and including March 25, 1958 in which to file abstract and brief, together with attached proof of service of a copy of the motion on the Attorney General

7. Order of the Chief Justice granting the motion of claimants for a further extension of time to and including March 25, 1958 in which to file abstract and brief

8. Order of the Court dismissing cases for want of prosecution

9. Petition of claimants to expunge order dismissing cases, for leave to reinstate, and for an extension of time in which to file abstract and brief

10. Order of Judge Wham granting the petition of claimants to reinstate cases, and further ordering claimants to file abstract and brief on or before August 30, 1958, or cases to be dismissed for want of prosecution

11. Abstract of evidence

12. Brief of claimants

13. Motion of claimants for leave to amend the ad damnum clauses of complaints

14. Order of the Chief Justice denying the motion of claimants for leave to amend the ad damnum clauses of complaints

15. Statement, brief and argument of respondent

16. Commissioner’s Report

The highway upon which the vehicles were traveling was U. S. Highway No. 40 in St. Clair County, which is under the jurisdiction of respondent. It is a four-lane concrete highway having two traffic lanes, each 10 feet in width, for eastbound traffic, and two traffic lanes, each 10 feet in width, for westbound traffic. The traffic lanes were properly marked, including the division of eastbound and westbound traffic, which, consisted of intermittent lines running down the center as a division line, with yellow strips on each side thereof indicating a no passing zone.

The highway in question was constructed in two slabs with an expansion joint in the center.

Claimants are predicating their claims upon the negligence of respondent and its agents in the construction and maintenance of this particular section of road, and are contending that a crack existed in the center of the road, which was filled periodically with bituminous material in the center of the crack, which the evidence shows runs for a distance of some 1,500 feet, with a variance in the width and depth of the crack.

There is a great conflict in the evidence as to the size of the crack, and the care and maintenance of the crack. However, it was testified to that after the alleged accident bituminous material was applied to the center of the road in attempting to correct the condition in the highway.

If the crack or separation in the highway referred to was the proximate cause of the automobile being driven by Joseph Bruske going out of control and running head-on into the automobile being driven by Albert J. Wendler traveling in the opposite direction, in which the other claimants were riding, there is no question in our mind but that, if this crack or separation put into motion the events which subsequently followed, respondent had actual and constructive notice.

Claimants, in traveling in a westerly direction, were traveling on the inside traffic lane, being the passing lane for westbound traffic.

Joseph Bruske, traveling alone in his automobile, had pulled to the inside lane, or the passing lane for eastbound traffic, as he was going into the curve in question, or just prior to the curve, and at said time and place claimants were coming out of the curve, and, as the Bruske vehicle pulled along side of the truck traveling in the same direction, the truck started to veer to its left toward the Bruske vehicle, at which time Joseph Bruske testified that he was traveling approximately 35 m.p.h. He applied his brakes, the brakes grabbed, and his car crossed the center line, being the dividing or separation in the highway in question, striking the automobile in which claimants were riding, completely demolishing both vehicles, and severely injuring all three claimants.

Joseph Bruske was insured with the Western Casualty and Surety Company for $5,000 and $10,000, $5,000 property damage, so that the insurance company settled with all three claimants under a covenant not to sue in the following amounts: Anna Mae Pizzini — $3,433.33, Helen S. Francis — $3,333.33, and Albert J. Wendler— $3,333.34.

At the time of the accident, the jurisdiction of this Court for personal injuries was the maximum of $7,500.00, which later was amended and increased to $25,000.00, and the ad damnum in the three complaints have been increased by order of this Court. It is the contention of counsel for claimants that the amendment to the Court of Claims Act increasing the ad damnum is retroactive.

We have had occasion to pass on this question before, and we have held that the amendment was not retroactive. Shockley vs. State of Illinois, 21 C.C.R. 346.

We cannot help but be concerned with the wide variance in the testimony as to what was the proximate cause of the Bruske automobile going out of control, whether it was the grabbing of the brakes, which caused his car to swerve, or the crack or separation dividing eastbound and westbound traffic.

There is also conflict as to where the accident happened, as the testimony is fairly consistent that, within the 1,500 feet area where the separation was located, it varied in width from practically nothing to as high as 4 to 6 inches.

On direct examination, Joseph Bruske testified before the Commissioner that he was driving a 1953 Hudson on State Boute No. 40 on the last curve going into Fairmont City, which curved to the left; that he had an accident, which happened about 8:00 in the morning of July 13, 1955, and that he was traveling at a speed of between 30 and 35 m.p.h. At the time of the collision he was approaching a curve, and was attempting to go around a truck, which was traveling at about the same rate of speed; that, when he was along side of the truck, he decided he had better not pass, because it was bearing over onto him when going into the curve. He testified that he applied his brakes and slowed up, and tried to fall behind the truck. As he started to do this, he bit a separation in the road with his left wheels, which dropped into the separation, and threw his car out of control. It then crossed the center line and collided with the Wendler car head-on. (Abst. 1.)

He estimated the separation at the center of the highway to be about six inches wide and four or five inches deep; that the separation was in the center of the highway, which divided the two eastbound lanes and the two westbound lanes. (Abst. 2.)

On cross-examination, he testified that he had driven on Boute No. 40 before that day, and that he was on his way home from Bast St. Louis at the time of the accident, having gotten off work at 7:00 A.M., and the accident occurred about 8:00 A.M. He testified that he drove back and forth every day, mostly on this route, and that the weather was clear, the pavement was dry, and, visibility was good. He testified he had control of his car just prior to this accident, and that the collision happened when he was behind the truck; that he had decided to pass the truck, and that, ‘ after I pulled up alongside, on the inside of the truck, he started to go into this curve and listed over towards me, and I decided I had better not try to pass him. I applied my brakes, and then my left wheel caught in this crack, and I lost control of the car. When I applied the brakes they responded, but the car seemed to pull over to the left towards the center of the road. ’ ’ (Abst. 3.)

Further quoting from his testimony on page 4 of the abstract: “When I lost control of my car, I was in my own lane. I was in the passing lane at that time. After I lost control of my car when I went in that crack or crevice, I went across the yellow line. I knew the crack was there before this accident happened. I don’t know if this crack had been filled before. (Abst. 4.)

“I was arrested about an hour after the accident by a State policeman in the emergency room at the hospital. I don’t recall what I told him. I had to pay a fine. The crack, in my best judgment, is four or five inches across and about four or five inches deep, but I have never measured it. (Abst. 5.)

“I was conscious after the accident. The weaving started a little bit after I applied my brakes. The brakes pulled a little to the left. I didn’t attempt to turn back to the right. (Abst. 6.)

“The weaving back and forth started after my car dropped its wheel into the crack after I lost control of the car. I couldn’t say how long the wheel was in the crack before the weaving started. All I know is when I applied my brakes, and before I knew it, the car was out of control, to the best of my knowledge.” (Ahst. 6 and 7.)

This accident was investigated by William H. Thompson, a State police officer, living in Collinsville, Illinois. He testified that, in making his investigation, he was able to locate the point of impact, and could identify where the two cars had come together; that they had hit in the center of the westbound lane, which was the passing lane, and that all of the debris was in that particular lane of traffic. The road was marked with lines to indicate the lane of traffic, that the center line, which divides east and west lanes, is a yellow line, and on each side of this the two lanes are divided by a single line, and that is black and white, alternate.

He further testified that the lines were visible to a driver in a vehicle; that he talked to Joe Bruske at the hospital in the emergency room; that at the time Mr. Bruske did not seem to he seriously injured, and was conscious; that, in interrogating him, Mr. Bruske was asked this question: “How come you got onto his side of the road?” and his answer was: “I don’t know. I applied my brakes, and I felt my wheels lock, and I just ran over onto the side of the road.”

Mr. Bruske was arrested for being in the wrong lane of traffic. He pleaded guilty, and paid a fine before a police magistrate in Fairmont City.

On cross-examination of the officer, it was brought out mat at the time of the interview, immediately after the accident, Mr. Bruske never mentioned a crack or separation in the pavement.

It was also brought out by the officer that the crack in the pavement referred to by the witnesses was farther down the road than where the accident happened, as the accident occurred right at the westerly edge of the curve as you come out of Fairmont City.

After considering all of the evidence as to the condition of the road, the testimony of the witnesses, the physical facts and the exhibits referred to, it has not been definitely established that the Bruske car was thrown out of control and into the wrong lane of traffic by reason of the crack, as Mr. Bruske’s testimony is contradictory. In one instance, he testified it was the crack, which threw his car. However, at the same time, he did admit that the truck forced him closer to the center of the road, and that, in applying his brakes, they grabbed, and that is the last he remembered. In another breath he says that it was the crack, which varied from four to six inches, which caused his car to swerve into the wrong traffic lane and the car in which claimants were riding.

Immediately after the accident he told the officer that it was the grabbing of the brakes, which forced him over into the other traffic lane, while he was attempting to pass the truck and slow down, because the truck was bearing over on him, and at that time he said nothing about running into a crack in the center of the road.

We also have some doubt as to whether or not this accident occurred where the crack was slight, or where there was a crack, or where the crack was from four to six inches wide. There is no way to reconcile this testimony. However, it is convincing, and there is no question but what Joseph Bruske is the only person who knows just what happened, and his first impression and first statement did not relate to the crack in the center of the road, but the cause of his car going out of control and into the other traffic lane, and striking the car in which claimants were riding was the grabbing of the brakes, and we are inclined to believe that this is a true statement. If he had laid great stress upon the crack being a contributive factor, he certainly would have stated this to the policeman. This witness was entirely familiar with the road, as he had been over this particular highway daily for a considerable length of time in going to and from his work.

We are mindful of the fact that there is absolutely no contributory negligence involved in these cases, and that claimants were innocent victims.

We are also cognizant of the fact that two or more defendants can be liable, if it was their negligence which was the proximate cause of the accident in question. However, if the evidence reveals, and if we feel in sitting in this case, as a trier of facts, that the sole proximate cause of the Bruske car going out of control was its defective brakes, which were applied when the passing of the truck was attempted, and was being forced over towards the center of the road, which caused the car to go out of control, and not any defect in the highway, then it would be our duty to find respondent not guilty. This is true even though the center of the highway did have a separation in it. However, if the accident did not happen where the separation occurred, which was great enough to cause a car to go out of control, then, of course, in that event, it would be our duty to find respondent not guilty.

We have held many times that respondent is not an insurer of all persons traveling upon its highways.

Claimants’ counsel has cited in his brief an analogy between these cases and one that this Court passed upon in 21 C.C.R. 480, being the case of Visco, Et Al, vs. State of Illinois. That case is easily distinguishable from the present one in that we found in that case that the driving into the hole was what caused the car to go out of control, and there was no other contributing factor or improper operation of an automobile, such as we have in the present cases. And, also, in that case there was the question of contributory negligence, which we do not have here.

These eases have to be decided wholly upon the question as to whether or not the division in the center of the highway caused the car to go out of control and into the other traffic lane, or whether it was the grabbing of the brakes, which threw the Bruske car out of control.

Claimants, understandably, do not know what caused the Bruske car to come over into their traffic lane and strike them. This is solely within the knowledge of Mr. Bruske, and, in our minds, his testimony immediately after the accident is more convincing than when these cases were tried. Furthermore, there are too many discrepancies in his testimony to convince us, along with the physical facts and circumstances and evidence to involve respondent as being negligent along with Mr. Bruske, which was the proximate cause of the accident.

We find that the sole proximate cause of the accident was the negligence of Mr. Bruske in the operation of his vehicle in such a manner as to cause it to go out of control, and the operation of his vehicle in a defective condition, as to his brakes.

An award is, therefore, denied.