text:
    (No. 4701
    William J. Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 25, 1957.

    Donald T. Morrison, Jr., Attorney for Claimant.
    Latham Castle, Attorney General; Richard P. Siman, Assistant Attorney General, for Respondent.
   Fearer, J.

An amended petition was filed in this Court on February 15, 1956, in which it is alleged by claimant that respondent maintained a certain public highway known as U. S. Route No.. 12, also referred to in the record as Rand Road, at or near Wilke Road in Cook County, Illinois. On February 5, 1955, respondent, by and through its agents, being highway maintenance men,, who were in charge and control of two state trucks with snowplows attached to the front of each, was engaged in removing snow from Route No. 12. The vehicles were traveling in a southeasterly direction removing an accumulation of snow, which had fallen during the evening of February 4, 1955 and the early morning hours of February 5, 1955.

In the amended complaint, it is further set forth that claimant, William J. Jones, was operating an automobile on Route No. 12 in a northwesterly direction, and was in the exercise of due care and caution for his own safety and the safety of others. Claimant further charges that the operation of the snowplows by respondent’s agents was dangerous, and a hazard to the vehicles traveling on said highway, unless due warnings and lights were present and operating upon such snowplows, and unless such snowplows were being operated with extreme care and caution.

It is further alleged that said snowplows were being operated in a tandem fashion, so that one snowplow was proceeding in a southeasterly direction partially in the inner northwest-bound lane and partially in the inner southeast-bound lane, and the other snowplow was proceeding southeasterly in the inner southeasterly-bound lane partially in the outer southeast-bound lane.

Respondent, by and through its agents, was guilty of one or more of the following wilful and wanton acts of carelessness and utter disregard for the safety and rights of others:

(a) Operated a snowplow in a southeasterly direction in a northwest-bound lane;
(b) Failed to furnish or cause to be operated any danger or warning signals whatever on either of the two snowplows;
(c) Failed to furnish or cause to be operated and illuminated any headlights or other lights whatever on the snowplow, which was traveling in a southeasterly direction in the inner northwest-bound lane and inner southeast-bound lane;
(d) The employees of the state were in a state of exhaustion and fatigue, so as to be incompetent to operate such vehicles with the high degree of care and skill necessary to protect the rights of others.

As a direct and proximate result of such negligence, and wilful and wanton carelessness, the snowplow proceeding southeasterly in the inner southeast-bound lane and in the inner northwest-bound lane struck and collided with the automobile of claimant, and greatly damaged the automobile. Claimant received personal injuries, and brings this action for $7,500.00 for property damage and personal injuries, alleging that there were certain subrogation rights of a third party for property damage, and that he was only claiming $50.00, being the deductible portion of his policy, in addition to his personal injuries.

No answer having been filed by respondent, a general traverse or denial of the complaint will be considered.

The record consists of the following:

1. Complaint.
2. Motion of respondent for an extension of time to and including April 16, 1956 in which to file pleadings.
3. Proof of service of a copy of the motion of respondent on counsel for claimant.
4. Order -of the Chief Justice granting the motion of respondent for an Extension of time to and including April 16, 1956 in which to file pleadings.
5. Amended petition.
6. Bill of Particulars.
7. Departmental Report.
8. Transcript of evidence.
9. Claimant’s X-Ray exhibits Nos. 1 to 6.
10. Respondent’s exhibit No. 1.
11. Abstract of evidence.
12. Brief of claimant.
13. Brief of respondent.
14. Reply brief of claimant.
15. Commissioner’s Report.

On the evening of February 4, 1955 and early morning hours of February 5,1955, snow had fallen to such an extent on U. S. Highway No. 12 in the northerly and northwesterly parts of Cook County, which included the area at or near the intersection of Band and Wilke Boads, that it was necessary to remove it from said highway in order to provide safe traveling conditions for the general public.

At or about the hour of 4:30 A.M. on February 5, 1955, two employees of the Division of Highways were operating a 1954 International 2% ton truck with a blade snowplow and frame mounted on it, and were engaged in the removal of the snow. The truck was traveling in a southeasterly direction in the inner lane of a four-lane highway, said highway being approximately forty feet in width. The northbound and southbound traffic lanes were divided by two lines running down the center of said highway. The truck, at said time and place aforesaid, was being driven at a speed of not to exceed twenty miles per hour. The truck had the following complement of lights, all of which were lighted: two headlights mounted on the top of the cab, a red flasher light mounted at the center of the top of the cab, three orange colored courtesy lights on the back and near the top of the cab, a tail light, and a stop light on the rear.

Claimant, an employee of William Dudek Manufacturing Company, had worked until the early hours on the morning in question, and, after changing his clothes, started to drive to McHenry, Illinois. He was traveling on U. S. Highway NMo. 12 in a northwesterly direction, and, at or near Wilke Bead, while driving said automobile, being a 1954 Chevrolet sedan, in the center of said highway, struck the left front portion of said snowplow, and then proceeded in an easterly direction. He finally stopped his automobile in a ditch approximately two hundred feet from the point of impact. Claimant sustained personal injuries, as well as property damage to his automobile.

The record is clear that the maintenance men were performing a governmental function, as distinguished from a ministerial function, in the removal of snow and ice from said highway at the time in question.

It is apparent that claimant was confused as to the center portion of said highway, being the dividing line for northbound and southbound traffic, as he was follow-, ing a path, which apparently was in the center of the highway, and partially in the inner southbound traffic lane. This was the traffic lane that the truck and snowplow were also traveling in.

It is apparent from the record that claimant could or should have seen the lights on the cab of the truck and the headlights thereon, and should have known that the State of Illinois, under the circumstances, would be clearing said highways. Claimant had over twenty feet, not including the shoulder, upon which to drive his automobile, and could have safely cleared the snowplow, which was in the innermost southbound traffic lane. His excessive speed is indicated by the distance he traveled after striking the left front of the snowplow.

Respondent’s agents, at the time and place aforesaid, as has been previously stated, were performing a governmental function. Mower vs. Williams, 402 Ill. 486, quoting from page 491: ‘‘ That the state is immune can hardly be questioned. Section 26 of Article IV of the Constitution of 1870 states: ‘The State of Illinois shall never be made defendant in any court of law or equity’. Neither is a state agency liable. Minear vs. State Board of Agriculture, 259 Ill. 549.”

Quoting further from page 493: ‘ ‘ That the removal of such snow and ice is a governmental as distinguished from a ministerial function appears as a reasonable proposition when circumscribed by conditions necessitating the overcoming of the hazard of snow and ice, with its attending danger to life and property, especially when it is of such magnitude that private means are not adequate to deal with the problem, and where the public welfare demands, and the public relies on the state to meet the problem”.

Furthermore, claimant, even though he has alleged, has not proven that the agents of the State of Illinois were guilty of wilful and wanton conduct. In fact, claimant has not maintained the burden of proving, first, that he was free from contributory negligence, and did not contribute to his own injury; and, secondly, that it was the negligence of respondent’s agents, which was the" proximate cause resulting in his injury. This claimant is bound to do before this Court would consider the question of damages alleged and proven.

We believe that claimant was negligent in that he continued to drive his automobile in a direct course at or near the inner southbound traffic lane, driving in tracks made previously by vehicles, and did not turn said automobile away from said course in an easterly direction even though he had over twenty feet within which to drive said automobile to avoid striking the vehicle driven by respondent’s agents in clearing the snow from the inner southbound traffic lane.

Claimant saw the lights on respondent’s truck, and continued to drive in a direct course after seeing the lights in close proximity to the center of said highway where he was traveling. Had he had his car under control, claimant had ample opportunity to turn from the direct course in which he was traveling and avoid striking the left front of the snowplow. Furthermore, we believe that he was traveling at a high and dangerous rate of speed, taking into consideration the traffic, the use of the way, and the condition of the highway. He knew, or should have known, that driving conditions were perilous, and should have realized the possibility that respondent would be cleaning the snow from said highway. The fact that he was driving at a fast and dangerous rate of speed, under the conditions, is borne out by the testimony that his automobile traveled some two hundred feet from the point of impact to where it came to rest in a ditch on the east side of said highway.

It is, therefore, the opinion of this Court that claimant’s claim should be denied.


source: Caselaw Access Project

author: Tolson, C. J.

license: Public Domain

text:
    (No. 4773
    Illinois Farm Supply Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 25, 1957.
    Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.

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

Claimant, Illinois Farm Supply Company, filed its complaint seeking to recover the sum of $3,838.35 for materials sold to the State of Illinois.

The record consists of the complaint, Departmental Report, stipulation, and motion for summary judgment.

The stipulation between the parties recites that the Departmental Report, together with the pleadings and bill of particulars, shall constitute the record in this case. The Departmental Report acknowledges that respondent purchased and received all of the petroleum products described in the bill of particulars, and that funds were available to pay such bills at all times.

The report concludes with a statement, that, had claimant presented its vouchers before September 30th, the bills would have been paid in the regular course of business.

This Court has previously held that, when funds have been appropriated and are available to pay proper claims, and such claims are not barred by the statute of limitations, then, if it appears that such claims have not been processed and paid by the end of the biennium, this Court will make an award.

An award is, therefore, made to the Illinois Farm Supply Company in the amount of $3,838.35.


author: Fearer, J.

text:
    (No. 4708
    Anthony Meccia, Administrator of the Estate of Benjamin Meccia, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1957.

    S. M. Del Principe, Attorney for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Fearer, J.

A wrongful death action has been filed in this Court by Anthony Meccia, Administrator of the Estate of Benjamin Meccia, deceased. The death of plaintiff’s intestate occurred on December 20, 1955 in the Cook County Hospital to which he had been admitted on December 18, 1955.

The record consists of the following:

1. Complaint.
2. Departmental Report.
3. Transcript of evidence.
4. Joint exhibit No. 1.
5. Claimant’s exhibits Nos. 1, 2, 3 and 4.
6. Respondent's exhibit No. 1.
7. Notice to the Attorney General of claimant's intention to file motion for an extension of time in which to file abstract, brief and argument.
8. Motion of claimant for an extension of time to May 12, 1957 in which to file abstract, brief and argument.
9. Order of the Chief Justice granting the motion of claimant for an extension of time to May 13, 1957 in which to file abstract, brief and argument.
10. Order of the Chief Justice amending the previous order of the Court, and granting claimant an extension of time to and including June 13, 1957 in which to file abstract, brief and argument.
11. Stipulation relative to previous order-of the Court.
12. Motion of claimant for a further extension of time to and including July 13, 1957 in which to file abstract, brief and argument.
13. Notice and proof of service of a copy of the motion of claimant on the office of the Attorney General.
14. Stipulation relative to motion of claimant.
15. Order of the Chief Justice granting the motion of claimant for a further extension of time to and including July 13, 1957 in which to file abstract, brief and argument.
16. Abstract of evidence.
17. Brief and argument of claimant.
18. Brief and argument of respondent.
19. Proof of service of a copy of the motion of respondent on counsel for claimant.
20. Commissioner’s Report.

From the evidence, we find that Benjamin Meccia was born on August 21, 1907. He was committed to the Dixon State School, Dixon, Illinois, as an epileptic by the County Court of Cook County, date of admission being July 28, 1929. He continued as a patient in the institution until his death in the Cook County Hospital on December 20, 1955.

It appears from the records and testimony produced that Benjamin Meccia was subject to severe convulsions, which could be partially controlled by anti-convulsive medication. On his admission, he had an I. Q. of 53. He was an inmate of the institution for about 25 years, during which period of time he had many severe convulsions. The frequency of his convulsions decreased from 1944 to 1953; however, his mental deterioration became more evident during those years. In 1954 he had 30 grand mal convulsions, and in 1955 he had 23.

As has been stated, during the period of time he was in the institution, he deteriorated both mentally and physically. His I. Q. decreased from 53 in 1929 to 15 in 1953.

During the patient’s few years, the records indicate that he sustained several minor and trivial injuries when he fell during seizures, or while fighting with other patienta. Those incidents were contributed to his epileptic status.

Mary Senese, a sister of the decedent, on December 18, 1955, requested the authorities at the institution to allow her to take him home for the Christmas holidays. This request was granted, and before leaving the institution a release was signed by her. Before leaving the institution, and while in the waiting room, plaintiff’s intestate became ill. He was placed on a bench, and given a cursory examination by two doctors, both of whom were of the opinion that the patient had an epileptic convulsion. As his condition appeared to have improved, he was permitted to leave the hospital in the company of his sister.

His sister testified that, when he was brought into the office of the Administration Building by another patient, he did not appear to be in good physical condition. It appears from the evidence that, at the time, the weather outside was cold, and it was snowing; that he. was dressed warmly, and was given an overcoat by one of the attendants to wear home. Mrs. Senese later that morning took the patient to the local bus station where she changed his shirt in the lobby of the station. One of the witnesses for claimant testified that at that time she observed a nasty bruise or red spot on his left arm. The patient, in the company of his sister, then went by bus to the City of Chicago. Upon arriving in Chicago he did not appear to be in good condition, and was taken by taxi to Cook County Hospital, where he died two days later.

According to the death certificate, which was admitted in evidence, by stipulation, the cause of death was “bronchopneumonia”. Two photographs taken at the funeral parlor were admitted in evidence. The one, particularly of his left arm, indicates that there was something wrong with it. The Cook County Hospital records indicate that the patient had bronchopneumonia, cellulitis of the arm, mental deficiency, and idiopathy, severe”.

Some twelve charges of negligence against respondent’s agents were set forth in the complaint, some of which are repetitious. However, they can be summed up in that claimant is charging respondent’s agents with negligence in failing to exercise reasonable care in protecting Benjamin Meccia considering his mental and physical condition, and that they did not provide him with proper treatment while in the lobby of said Administration Building.

From the evidence offered by claimant, and the briefs filed herein, claimant is predicating his case upon the fact that the physicians in charge of the Dixon State School did not exercise reasonable and proper care in administering to Benjamin Meccia while he was in the lobby of said building in a post-epileptic state, and that said physicians should not have permitted him to leave the school, and that, as a result of said negligence, Benjamin Meccia died.

Claimant did not offer any medical testimony in attempting to show a causal connection, and establish by a preponderance of the evidence that the alleged acts of negligence contributed to and caused the death of Benjamin Meccia.

The entire case is predicated upon conjecture and surmise. Great stress is laid upon the marks on the left arm of decedent. This is described in the hospital records as cellulitis of the arm, which is an inflammation of the cellular structure; and, further, it appears to be a thermal burn, second degree in nature. The only direct evidence produced as to the cause of death, was the death certificate and the hospital records.

The record is deplete of any evidence of mistreatment or negligence on behalf of respondent’s agents, which could be considered a factor in the cause of death being diagnosed as bronchopneumonia.

Before there could be a recovery in this case, claimant would have to prove by a preponderance or greater weight of the evidence that it was the negligence of the agents of respondent, which was the proximate cause of the death of Benjamin Meccia; and, that there was some causal connection between the negligent actions and the cause of death, which has not been proven.

Claimant’s attorney, in his brief, cites the case of Straus Nat. Bank & Trust Co. vs. Marcus, 274 Ill. App. 597, “being a case where pneumonia was held to be the proximate cause of the death of plaintiff’s intestate”. However, in the case cited, as distinguished from the present case, a hypothetical question was propounded to a medical expert establishing a causal relationship between the accident and the subsequent condition of ill-being and death. This, claimant’s counsel did not do in the present case.

We are of the opinion, and predicate this decision upon the fact that claimant did not establish by a preponderance or greater weight of the evidence any actions of negligence of respondent’s agents, which were the proximate cause of Benjamin Meccia’s death, and that there was no causal connection between the acts of negligence charged, and the diagnosis of the cause of death of this patient.

We are, therefore, denying any award to claimant for the alleged wrongful death of Benjamin Meccia.


author: Wham, J.

text:
    (No. 4562
    Paul S. Lang, D.D.S., Albert Carroll, George and Charles Waller, and Joe Morrison, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.

    William C. Rotchford, Attorney for Claimants.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants are the owners of certain aircraft, which were damaged or destroyed by fire on March 2, 1953, when a grass fire swept the Sky Haven Airport located on Wolf Road in Leyden Township, Cook County, Illinois. They contend that the fire was- started by employees of the Department of Public Works and Buildings, Division of Highways, State of Illinois, on a public roadway, and negligently allowed to spread to and across the airfield burning the aircraft for which they claim damages. Respondent contends that the employees were acting outside the scope of their employment in starting the fire, and also that they were not negligent.

There is no dispute with respect to the burning of the planes, or that the fire started from the public road and spread to the airport on a dry and windy day. Only two witnesses testified to the actual occurrence of the fire. Richard E. Lloyd, manager of the Sky Haven Airport, testified that, at about 8:30 A. M. on March 2, 1953, he observed two state employees working in the ditch picking np trash along Wolf Road, which bounded the airport on the east. A State of Illinois truck was standing nearby. He saw them as he left the airport en route to Franklin Park. At that time he observed no fire. Upon returning to the airport some 30 or 40 minutes later, he observed the two state employees tending a fire in the Wolf Road ditch bordering the airport, and poking with sticks or rakes into the fire.

A short time after reaching the airport, one of his customer’s reported that there was a grass fire on the airfield, which fire rapidly spread out of control and burned the aircraft of claimants, in spite of an attempt by Mr. Lloyd and others to protect them.

After the fire had been extinguished, one of the state employees told Mr. Lloyd that he was sorry, but did not realize that the wind was going to carry the fire as rapidly as it did.

The supervisor of the state employees then told Mr. Lloyd that he was displeased with the actions of these employees, and stated that there was a regulation prohibiting them from starting fires on the border of a public road, and that they were supposed to haul the trash away to a dumping ground, rather than burn it on the road.

The only state witness regarding the fire was Sam Farina, one of the employees. He admitted starting the fire to burn trash several days before the date in question, and had, at that time, thrown a log on the fire and left, but stated that it was completely extinguished at that time. On March 2, the day of the fire, he and his helper, John Bonny, observed the log smoldering, as they were performing their duties for the state in picking up rubbish along the road. He stated that they stopped their truck, tried to stamp it out, and, while so doing, a spark therefrom ignited a nearby paper, which in turn blew onto the airfield igniting the grass, and spreading out of control across the field to the planes. He admitted that they did not use water to extinguish the log, because they thought they could do it by stamping it out.

We find no evidence in the record to lead us to believe that anyone other than the state employees started the fire. We are also convinced from the evidence and the reasonable inferences drawn therefrom that the size of the fire prior to its spread onto the airfield was considerably larger that that of a smoldering log, and that the employees were tending a fire of burning debris. They should have foreseen that the fire would likely get out of control, and by reason of the high wind and dry grass spread across the airfield to the planes.

We do not agree with respondent’s contention that the state is not responsible for the actions of the employees, which actions respondent claims were outside the scope of their employment. The fact that they violated a regulation in starting a fire to burn trash on a public road does not in and of itself place them outside the scope of their employment. This act occurred while they were pursuing their duties in clearing the roadway of debris. This was not such a departure from their duties as to constitute a frolic of their own. It was connected with the business of the state, and not for their personal benefit.

We have concluded from the evidence that this fire was started by the employees of the State of Illinois, while pursuing their duties in the scope of their employment for the state; that they negligently caused and permitted the fire to spread to the airfield; and, as a proximate result thereof, the aircraft of claimants were damaged or destroyed. The claimants were in no way at fault, and respondent should be required to reimburse them for the amount of their damages, as shown by the evidence.

As to the respective damages sustained by each claimant, we have applied the recognized measure of damages, which is the cost of repair, or the difference between the cash market value before and after the damaging incident, whichever is the lesser.

Claimant, Paul S. Lang, testified that he and Joe Morrison jointly owned an airplane known as an Ercoupe, 1946, Model 415-C, 75 H. P. Engine, which they had purchased two years prior to the fire for the sum of $1,350.00. He stated that, subsequent to the purchase, they had expended approximately $460.00 in reconditioning and installing various items of equipment. He expressed an opinion that the cash market value of the plane on the date of the fire was $1,850.00. It is noted that this was the first plane owned by claimant, and his knowledge of values was acquired while shopping for the plane in the Chicago area and through reading a trade paper.

Claimant, Joe Morrison, the co-owner of the plane, testified that they had purchased it for $1,200.00, and had ■expended approximately $600.00 on repairs, replacements, additions and reconditioning during the first year they owned it.

The fire burned the fabric off both wings and the underside of the fuselage, and claimants expended the sum of $776.50 in repairing the damage. Claimant, Joe Morrison, testified in detail with respect to the damages and items of repair. He expressed the opinion that the repairs were necessary, and that the charges therefor were reasonable and proper.

Both claimants Lang and Morrison contend that, in addition to the damages, the plane depreciated in value, because of the fire, to the extent of $350.00.

Richard E. Lloyd, the airport manager, testified on behalf of claimants that the cash market value of the Ercoupe on March 2,1953, prior to the fire, was $1,200.00 to $1,400.00.

Respondent’s witness, Nelson Weber, testified that his occupation was aircraft insurance and sales; that he had been a licensed pilot in the State of Illinois for twenty years; that he had sold and insured many Ercoupes, and had occasion to deal with that type of plane in fixing salvage values. He then testified that, in his opinion, the cash market value of an Ercoupe equal to that of claimants was $1,000.00.

We believe that the testimony of claimants’ witness, Lloyd, and repondent’s witness, Weber, are entitled to more weight that that of claimant, Paul S. Lang, regarding the cash market value of the plane. The evidence reflects that their experience in such matters was considerably more extensive than his. It is noted that the co-owner, Joe Morrison, did not express an opinion on this point.

We believe from the evidence that the valuation of the Ercoupe on March 2, 1953 was between $1,000.00 and $1,400.00, and that the actual cost of repair, according to the testimony of Morrison, was $776.50.

Claimants have not shown to our satisfaction that the plane depreciated $350.00 in value in addition to the cost of repairs. After it was repaired, claimants sold the plane for $1,250.00,- which was well within the area of its value on the day of the fire.

Consequently, we find from the evidence that the claim of Paul S. Lang and Joe Morirson should be allowed in the sum of $776.50, which was the cost of repairing the damage occasioned by the state employees.

Claimant, Albert Carroll, owned a Rearwin Sportster, purchased by him on January 3, 1952 for $1,000.00 cash and cancellation of an $800.00 debt owed to him by the seller. It was then airworthy. He replaced the engine for $140.00, and added radio equipment, which he valued at $100.00. The fire completely destroyed the plane, and it was abandoned. No salvage value remained.

He acknowledged that the certificate of airworthiness had expired, and that he had not flown it since January 3, 1953. He further stated that it would require fifteen hours of a mechanic’s time to disassemble the parts to determine whether or not it was airworthy. He had not applied for a certificate of airworthiness.

Claimant, Albert Carroll, expressed the opinion that the fair cash market value of the plane on March 2, 1953, prior to the fire, was $1,800.00, although on cross-examination he stated that he knew of no sales of that type of aircraft around that date. The manufacturer had discontinued making the particular type, and he had only seen one other like it since 1948. He further testified that the plane was manufactured in 1939, and had been flown 450 hours; and that the fabric had been replaced once.

Richard E. Lloyd, airport manager, testified on behalf of claimant that, in his opinion, the cash market value of the plane on March 2,1953 was $900.00. He further stated, however, that he would not have purchased the plane.

Respondent’s witness, Nelson Weber, testified that, in his opinion, an airworthy 1936 Rearwin Sportster would have had a fair market value of approximately $400.00. He admittedly did not have the exact information °on the manufacturer’s price, since he stated it was an obsolete aircraft no longer listed. It is noted that he referred to a plane manufactured in 1936 rather than 1939. Therefore, his testimony could only be taken as an indication of the plane’s value, rather than as an opinion on the actual valuation.

We conclude from the evidence that the fair cash market value of the aircraft immediately prior to its complete destruction was $900.00, as expressed by claimant’s witness, Lloyd. It is true that claimant himself testified that its value was $1,800.00. We, however, believe that, since the burden of proof was upon claimant to establish the value, and considering the testimony of respondent’s witness, Weber, as corroborating the testimony given by claimant’s witness, Lloyd, rather than that of claimant himself, the $900.00 valuation has the more convincing power in our minds.

We, therefore, find that the claim of Albert Carroll should be allowed in the amount of $900.00.

Claimants, George Waller and Charles Waller, jointly owned an Interstate 300 51-B-1 Monoplane, two place cabin. They purchased it for $675.00 in 1949, installed a new engine, replaced the fabric, replaced all control cables, installed a new propeller, and made other repairs and replacements, which the witness, George Waller, stated cost an additional $1,800.00. He expressed the opinion that its fair cash market value immediately prior to the fire was $2,484.46. He testified that all of the fabric was burned off, except that on the leading edge of the wing; that the plane was not and could not be repaired, and that it was worthless.

On re-direct examination the witness stated that had he wanted to sell the plane on the date of the fire, he could have perhaps gotten only $1,400.00 to $1,500.00. He also stated that, if he had advertised in the paper, he probably could not have gotten more than $900.00 for it.

Claimant’s witness, Richard E. Lloyd, the airport manager, stated that the plane was an Army Liaison plane manufactured by Interstate Aircraft Corporation, and that, in his opinion, the fair cash market value immediately prior to the fire was between $1,200.00 and $1,500.00. He stated that be had sold the same plane, which was manufactured in 1942, to another group of men in 1947 for $1,250.00.

Respondent’s witness, Nelson Weber, testified that this was a war surplus plane, which depreciates more rapidly than civilian aircraft, inasmuch as production was discontinued, because it did not prove satisfactory to the military. He stated that he had never bought or sold one of these planes, but had recently insured one. He expressed an opinion that the cash market value of the plane was $350.00.

The evidence on this question varies to a considerable extent, and it is difficult to determine therefrom what the fair cash market value was at the time of the fire.

There is evidence that the plane was sold twice, once in 1947 for $1,250.00, and again in 1949 to claimants for $675.00. The evidence with respect to the enhancement of value by claimants is not too helpful. Apparently there was $680.21 expended for materials. The only evidence of any other expenditures consists only of a general statement that the co-owners furnished their own labor to an •extent of $1,000.00. There is no testimony in the record regarding the value of the alleged labor. While it is true that claimants did, to some extent, recondition the plane, and add equipment thereto after purchasing it, the amount expended is not the test of fair cash market value, although it obviously affects the value.

In claimants’ testimony regarding his opinion of the fair cash market value as being $2,484.46, he admitted that the opinion was based upon the replacement cost. This, likewise, is not the test to be applied. He then stated that, “Perhaps I could not get more than $900.00. Perhaps it may be less than that.” This latter statement was in answer to a question by the Commissioner as to whether he had an opinion of its worth on the open market, and not what it was worth to him.

After a consideration of all the evidence, we find that the cash market value on March 2, 1953 was $900.00. The salvage value was estimated by claimant at being $30.00. Therefore, the claim of George Waller and Charles Waller should be allowed in the amount of $870.00.

Claimants’ claims herein are hereby allowed in the following amounts:

To claimants, Paul S. Lang, D.D.S., and Joe Morrison___________$776.50
To claimant, Albert Carroll____________________________________$900.00
To claimants, George Waller and Charles Waller__________________$870.00


text:
    (No. 4661
    John Swets, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.

    Mathias, Meloy and Merker, Attorneys for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On January 6, 1955, claimant, John Swets, filed his complaint for damages in the amount of $3,750.00 for the alleged neglect of the servants of the State of Illinois in spraying chemicals on the right-of-way of the Calumet Superhighway.

The matter was heard by Commissioner Herbert Gr. Immenhausen, and the following portion of his report is hereby adopted by the Court:

“Commissioner’s Report
John Swets, by his attorneys, Mathias, Meloy and Merker, filed a complaint in the above entitled cause op January 6, 1955, wherein claimant seeks to recover the sum of $3,750.00 from respondent, the State of Illinois, for damages to 8 acres of tomatoes, which were planted during the growing season of 1954.
On or about the middle of July, 1954, respondent’s employees and agents were in the process of spraying weed killer on the right-of-way of the Calumet Superhighway at or near 8 acres of land, which claimant had under cultivation. Claimant alleges that the employees or agents of the Division of Highways did not use care in conducting the spraying operation at a time when the wind was blowing across claimant's 8 acres of growing tomatoes, and, as a result, a substantial amount of weed killer was: deposited on claimant’s growing tomatoes, and his crops were damaged and destroyed in an amount of 75% of the crop, causing a loss of $3,750.00.
The bill of particulars filed by claimant alleges that claimant was raising tomatoes under contract with the Campbell Soup Company; that the tomatoes picked on the 8 acres in question totaled 51 tons; and, that the yield should have produced 22 tons per acre, or 176 tons. The loss was computed at $30.00 per ton, or 125 tons, making a loss of $3,750.00.
Respondent, the State of Illinois, did not file an answer, and a general traverse or denial of the fact shall be considered as filed. Repondent filed a Departmental Report (Exhibit 2) with the Court of Claims on February 13, 1957. The matters contained therein shall be prima facie evidence of the facts set forth therein, (Rule 16, Court of Claims).
Departmental Report
On July 13, 1954, the Larkin Spraying Service was doing work for the Division of Highways, and, at the direction of this office, was spraying the median strip of Calumet Expressway between 159th and 167th Street. This area includes that portion of the highway right-of-way, which adjoins the property of Mr. Swets.
The spraying was done with a truck mounted sprayer unit, which was equipped with a hand operated gun type nozzle. This nozzle was manipulated by a man from the truck.
The Expressway at that location mns in a north-south direction. The tomato field in question joins the Expressway right-of-way on the west side of the Expressway, and extends approximately 497 feet in a southerly direction and 624 feet in a westerly direction. The median strip, which was being sprayed at this time, is parallel to the east edge of the tomato field and 130 feet west. Thus, the nearest point of exposure was 130 feet.
The wind on this date was out of the northeast at a velocity of 6.1 miles per hour. The temperature was 84 degrees.
The chemical applied at this time was a low volatile tetrahydrofurfuryl ester of 2, 4-D. The solution was applied at the rate recommended by the manufacturer. The Larkin Spraying Service applied 2, 4-D to approximately 200 acres of right-of-way on the Calumet Expressway.
A letter, dated August 19, 1954, from the law office of Messrs. Mathias, Meloy and Merker, who represented Mr. Swets, informed us that the tomato crop of Mr. Swets had been damaged to the extent of 50% of the anticipated yield.
After the letter was received in this office, Mr. Tipsword of the Expressway office contacted Mr. Swets, and his report was as follows:
“I talked with Mr. Bernard Swets, who represented his brother, Mr. John Swets, who resides at 169th Street and the east frontage road of Calumet Expressway, relative to the above mentioned subject. Mr. Swets and I visited the field of tomatoes, which he contends were damaged by our weed killer spray.
The field is located at 165th Street and the west frontage road of Calumet Expressway, and extends 520 feet along the west frontage road, and 624 feet in a westerly direction away from the frontage road.
I walked over the field with Mr. Swets while he pointed out the alleged damage. He indicated curled leaves and fmit, which were imperfect, also leaves which were deeply serrated. He contends that these are symptoms of 2, 4-D damage. In my examination of the field, I noticed that the symptoms, which Mr. Swets indicated, were not more pronounced- nearer the roadway nor less pronounced at the opposite of the field, as one would expect, but were uniformly distributed throughout the entire field. In no case did we find any dead plants, and all plants, which we examined, bore fmit in various stages of maturity.
I, also, noted that a tomato field adjoins the field of Mr. Swets on the south, and lies in the same relative position along the frontage road; also, there is a field approximately one-half mile north of this location along the frontage road.
Mr. Swets and I then talked with a Mr. Thad Stoltz, who is a “Field Man” for the Campbell Soup Company. Mr. Swets is raising these tomatoes under contract with the Campbell Soup Company, and Mr. Stoltz related that representatives of his company had estimated the yield of this field earlier in the season and again recently; the latest estimate showed a 50% decrease over the earlier estimate. The Campbell Soup people contend that this decrease in estimated yield is due to the effects of 2, 4-D, which Mr. Swets contends was brought about by our operation.
I then talked, by phone, with a Mr. Robbins of the Campbell Soup Company Research Bureau. Mr. Robbins explained the procedure for estimating the yield of a field of tomatoes before they have come into production. This estimating is done, as he explained it to me, by a complicated process of counting the fruit blossoms on several plants, and multiplying this result by the number of plants in the field. He, then, explained that the later estimate, after the alleged damage, was made on the basis of results obtained by experiments, which the Campbell Soup Company has made, in which they applied controlled amounts of 2, 4-D to tomato plants, and compared the production of these affected plants with normal plants.
Since I am unskilled in the science of tomato growing, it is my recommendation that this office contact a person in the Agricultural Department to make a study to determine whether or not this field of tomatoes has been damaged, and whether or not this damage can be attributed to 2, 4-D, or to a disease or insects. Also, if the damage is attributed to the presence of 2, 4-D, it should be determined whether the Division of Highways is responsible, or whether one of the nearby farmers applied 2, 4-D to his cornfield.
If it is found that the Division of Highways is responsible, we should receive an independent opinion as to the extent of damage.”
Another letter from Messrs. Mathias, Meloy and Merker on behalf of Mr. Swets was received in this office. This letter, dated September 10, 1954, stated that “All tomatoes have been picked from this field, and a total of 49Vz tons have been delivered to the Campbell Soup Company”. This letter further stated that the field should have produced 150 tons of tomatoes, and asked for a settlement of $3,000.00.
Mr. Tipsword made a further report to this office on September 24, 1954, as follows:
“On September 23, 1954, at 11:50 A.M., I had occasion to travel south on Calumet-Kingery Expressway. Mr. Andrew Speder and I were traveling together, and, as we passed the field of tomatoes owned by Mr. John Swets, I noted that the field was still being picked. Several people were loading tomatoes onto a track, and many baskets, filled with tomatoes, were in the field.
This brings to mind the fact that the letter of September 10, 1954 from the legal representatives of Mr. Swets presented an untrue picure of the total yield of this field. This letter stated that all tomatoes had been picked from this field, and a total of 49^2 tons had been delivered to the Campbell Soup Company. Although 49 Vi tons of tomatoes might have been delivered to the Campbell Soup Company, obviously all tomatoes had not been picked.
Therefore, their mathematical process used for arriving at an alleged damage of 100 tons from our weed spraying operations does not account for the tomatoes picked since September 10th.”
We were again contacted by Mr. Swets’ attorneys by letter, dated October 18, 1954. This letter stated that the harvest of the 8 acres of tomatoes had been completed, and that the yield was 51 tons, and that the yield should have been 176 tons on the basis of other acres planted by Mr. Swets. This letter asked for damages of 125 tons, or $3,750.00.
We have recently contacted a Mr. Davies, who is the Divisional Agricultural Manager for the Campbell Soup Company. He gave the following statistics relative to tomato yields for the South Holland area:
Five year average:
Years 1949 through 1953______________________________ 9.07 Tons per acre
Years 1950 through 1954____________________________10.05 Tons per acre
Year 1954 _______________________________________________________13.13 Tons per acre
Mr. Davies disclosed the fact that the absolute maximum yield for this area in 1954 was 22 tons per acre. He also gave the following general information concerning the 1954 tomato season:
T954 was one of the wettest years; it was one of the shadiest years on record; 1954 was also a bad year for sour flies and fmitworms.’
Yours very truly,
/s/ J. P. Tuthill,
District Engineer”
Your Commissioner heard the evidence pursuant to notice on January 16, 1957, at 160 N. LaSalle Street, Chicago, Illinois. Claimant’s attorney called Mr. Wayne Tipsword under Section 60 of the Civil Practice Act for cross-examination. He testified that he was employed in July, 1954, by the State of Illinois as a Landscape Architect, and that at present he is Assistant Manager to the Expressway Maintenance Field Engineer, Division of Highways, Department of Public Works and Buildings. That in July, 1954, he met Mr. Bernard Swets at his home in South Holland. That on July 13, 1954, the State of Illinois by its agents sprayed the parkway between the lanes of Calumet Expressway in the locality of Mr. Swets’ farm. The spray used was 2, 4-D, which is a selected weed killer of ester type. He saw Mr. Swets approximately 6 weeks after the state had sprayed the highway, and inspected a field containing tomatoes alongside of the west edge of the highway covering TYi acres. The tomatoes were in the same condition as other fields in the vicinity. He stated he was not an expert on tomatoes, but did know the effect of 2, 4-D on tomatoes. Its effect would depend on the intensity of the vegetable plant leaf, which would be affected by this type of weed killer. It would depend on the wind. If the wind was traveling 6 miles per hour from the northeast, I do not think the weed killer would affect tomatoes for more than 150 feet away. By stipulation, respondent's exhibit No. 1, a plat, was admitted into evidence. On respondent’s cross-examination, Mr. Tipsword stated that the instructions given to the agent were not to spray weed killer when the wind exceeded 8 miles per hour, and not to spray susceptible plante, such as trees, along the right-of-way, and, in general, to use caution in the method of its application; on further examination by Mr. Carr he said that he visited Mr. Swets’ farm, and wrote a report in which he stated T walked over the field with Mr. Swets while he pointed out the alleged damage. He indicated curled leaves and fmit, which were imperfect, and also leaves, which were deeply serrated. He contends that these are symptoms of 2, 4-D.’
Next witness called was Mr. John Swets, who testified that he lived in South Holland at 166th and Emerald, and was a farmer. He identified the plat introduced into evidence by agreement, and stated that the tomatoes were growing on his land situated south of the Calumet Expressway in July, 1954, that the plants were bearing some fruit and some blossoms; that some tomatoes were present, and that some of the plants were blooming prior to July 13, 1954. That on July 13, 1954, he noticed they were spraying along the Calumet Expressway, and went down to the truck from which the spraying was being done; that the truck was one block north of the north edge of his tomato field; that the parkway was being sprayed, with a hand nozzle spray, that the spray was going into the air about 10 to 12 feet. At that time the wind was blowing from the east, and that both he and his brother asked them to stop the spraying because of the tomatoes. The man handling the spray at the time was standing on the truck about 3 feet above the roadway on a platform; that he told them he owned this patch of tomatoes, and the weed killer was awfully hard on tomatoes; that the wind was from the east at the time, and that he told them it would do a lot of damage, if it continued. He tried to stop them, but they said that they were hired by the state, and were going to continue. They proceeded to spray the highway, and he noticed a mist traveling toward the west going up as high as 10 or 12 feet. This field contained 8 acres of tomatoes, and, after July 13th, the new foliage on the tomato plants was pointed something like fem. He noticed this about 10 days after the spraying, and he further noticed that the tomatoes did not grow any more, and that the blossoms and leaves were curling. Eventually the tomatoes on the 8 acres were harvested, and yielded 51 tons. They were sold at $33.00 a ton, and he started picking some tomatoes the latter part of July to the time of freezing, which were delivered to the Campbell Soup Company at their loading station in South Holland. They were to be used by the company for tomato juice, tomato soup and probably vegetable soup. He noticed, after spraying, the tomato plants remained small, and did not grow anymore. This was caused by 2, 4-D.
Claimant’s next witness was Wayne Robbins. He testified that he was the Divisional Plant Pathologist and Genetologist for the Campbell Soup Company, and that he attended the Iowa State College where he majored in plant physiology. During his association with the Campbell Soup Company he had specialized in tomatoes; that he had occasion to experiment and observe the use of various solutions known as weed killers on tomato plants, primarily 2, 4-D; and, that he had observed the effect of 2, 4-D on tomato plants.
He was acquainted with the land owned by John Swets in the vicinity of South Holland, Illinois, which borders the western edge of the Calumet Expressway. He visited this particular plot in August of the summer of 1954, about two weeks after July 13, 1954; that he examined the damaged plants, and that they manifested symptoms typical of 2, 4-D damage. Those symptoms consisted of twisting of stems, peteyal formation of leaflets, and distortion of leaflets. There was a dropping of blossoms, and a general dwarfing of the plants.
A volatile ester type of 2, 4-D is used commonly for weed control. It can affect living vegetation even after it has been applied, since the formulatiop of 2, 4-D may revolatize to a period of at least two weeks subsequent to the time of application, and the volatile vapors are as toxic as the material itself on direct application.
The vapors of the toxic material flow through the air for varying periods of time, depending upon its strength and the temperature conditions. They will keep emanating from the point of application, and drift through the air in whichever direction the wind is blowing. He stated that from his experience this can continue for around two weeks after the original application, and he had known of symptoms that would appear 16 days after the application. He had performed 2 separate experiments in 2 separate years, 1952 and 1953, on the effects of 2, 4T> upon tomato plants.
Thereupon, claimant's exhibit No. 1, a United States Weather Report, was introduced and admitted into evidence. It showed that on July 13, 1954, the maximum temperature was 93, and the minimum was 75. The average wind was northeast at 6.1 miles per hour. The maximum wind on that date was 12 miles per hour. Though there was no rain on July 13th, there was a trace of rain on the 14th.
Thereupon, claimant’s attorney, Mr. Carr, asked a hypothetical question based upon the testimony heretofore given, and asked for an opinion based upon a reasonable degree of scientific certainty as to whether or not there could or might have been a causal connection between the condition of the tomatoes at approximately two weeks subsequent to the application of the 2, 4-D taking into consideration the temperature and wind velocity. His answer thereto was that, in his opinion, the plants were damaged as a result of the 2, 4-D being sprayed at the center of the road.
The next witness called by the claimant was Phillip Paarlberg, who resides at 166th and Cottage Grove, South Holland. He is a supervisor for the Campbell Soup Company in the South Holland area, and his duties are to follow the tomato crop from beginning to end, checking it daily, and answering calls, if any farmer has difficulties. He held that position in 1954, and testified he was acquainted with the 8 acres of tomatoes owned by Mr. J. Swets; that this field was just west of the Calumet Expressway; that he visited the Swets farm about three times prior to July 13, 1954, that it was an excellent field, and had prospects of a real good crop of tomatoes.
He was acquainted with other tomato fields in the vicinity of Mr. Swets’ farm, where the soil was the saime, the same plants were used, and the weather conditions were the same; that he knew of the yield of tomatoes in these fields for the year 1954; that one field yielded 26 tons per acre, one a little over 20 tons, and the other approximately 22 tons per acre.
He went to Mr. Swets’ farm subsequent to July 13, 1954, and saw it at least once ai week until the harvesting was finished; that during these visits the stems didn’t get any more fruit, and on some of them the fruit was very small; that the average tomatoes were about 100 fruit to the 33-pound hamper, and these averaged between 180 and 200 fruit to the 33-pound hamper; that the vines did not develop any new growth to amount to anything; that he noticed the change in the appearance of the vines 10 days after the spraying occurred; and that from his experience he indicated that the vines had been affected by 2, 4-D.
Bernard Swets was called by claimant as the next witness, and stated that he resides in South Holland next door to his brother; that he was acquainted with the fields of tomatoes situated on the west side of the Calumet Expressway; that the fields contained 8 acres, and were planted in tomatoes; that he had occasion to¡ go into the tomato fields during the growing season of 1954, and on many occasions cultivated them; that on July 13, 1954, he saw a truck engaged in spraying moving south on Calumet Expressway. He went home and got his brother, went back to the track, because he could smell what they were spraying and asked them to stop. In reply, they said that they had orders to spray, and he told them to go ahead, and they would suffer. They went ahead and sprayed.
The spray appeared to be a mist, and, while they were spraying the center, the wind was blowing from the northeast, which caused it to drift. The spray rose into the air like dust as high as 10 feet.
Subsequent to July 13, 1954, he noticed that the leaves being produced were fern-like instead of a real leaf, and the leaves would just curl up; that they harvested 8 acres, and the entire yield was 51 tons. He knew that, because they kept tract of the amount harvested, and were paid $30.00 a ton for the tomatoes.”

The Commissioner recommended an award in the amount of $1,621.20. The basis of this award was the average yield of 13.13 tons per acre, as disclosed by the Departmental Report, rather than the 20 tons as testified to by Phillip Paarlberg, a crop supervisor, residing in the vicinity.

This Court has little difficulty in finding that claimant was damaged by the negligent acts of respondent, but has considerable difficulty in assessing his damages.

An examination of the abstract of the record discloses that five persons testified as to the facts of the case. One witness, Phillip Paarlberg, gave his opinion as to the tons per acre grown in the immediate vicinity. Claimant, John Swets, offered testimony as to the yield on a tract five miles away, which testimony was properly excluded by the Commissioner.

John Swets and Ms brother, Bernard, are tomato growers in the vicimty, yet they did not testify as to the yield from neighboring fields. Both Paarlberg and a Mr. Davies, mentioned in the Departmental Report, are employees of the Campbell Soup Company, yet their report on average yield is substantially different.

Mention was made that the crops were picked by Mexican and negro laborers, and, thereafter, hauled to market. Yet, there was no evidence as to the costs of such services, wMch would be in mitigation of the claim.

As to proof of damages, the rule is set forth in Wright vs. Wagner Dairy Co., 338 Ill. App. 211, 86 N.E. (2d) 857:

“The general rule with regard to proof of damages is that the evidence must afford data reasonably certain from which a court or jury may find the actual loss, and plaintiff must show by a preponderance of the evidence the damages caused by injuries complained of.”

Since the evidence is conflicting, and respondent admits, by its Departmental Report, that the average yield was at least 13.13 tons per acre, that figure will be used as follows:

8 x 13.13 — $105.04 @ $30.00 per ton_____________________________________$ 3,151.20
Received 51 tons @ $30.00 per ton_____________________________________ 1,530.00
Loss ----------------------------------------------------------$ 1,621.20

An award is, therefore, made to claimant, John Swets, in the amount of $1,621.20.


text:
    (No. 4669
    J. E. Vickers and F. N. Byrd, Co-partners, d/b/a Delta Towing Company and Westchester Fire Insurance Company, A Corporation, as subrogee, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.

    Bradley, Pipin, Vetter and Eaton, Attorneys for Claimants.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Wham, J.

This is a claim by J. E. Vickers and F. N. Byrd, Co-Partners, d/b/a Delta Towing Company, and the Westchester Fire Insurance Company, A Corporation, as subrogee, to recover the total sum of $1,375.29 for damages done to radar equipment of the motor towboat, Nita Dean, which collided with the Ruby Street Bridge, a draw bridge maintained, operated and controlled by respondent over the Illinois waterway at Joliet, Illinois, on November 24, 1953.

Claimants contend that the bridge tender, employed by the State of Illinois, negligently failed to give a proper signal that the bridge opening would be delayed in sufficient time to warn the pilot of the Nita Dean of such fact, thereby causing the collision in question.

Respondent contends that the bridge tender gave all signals required of him by the pertinent regulations governing the operation of draw bridges over navigable streams; that the pilot of the Nita Dean failed to comply with signals; that the bridge tender acting in an emergeney was not negligent; and the pilot of the Nita Dean negligently caused the collision. Respondent in its answer neither admitted nor denied the occurrence of the collision, and, on oral argument, questioned whether it happened at all.

Only two witnesses testified to the occurrence, namely, James Elmer Flanagin, pilot of the Nita Dean, for claimants, and Harold Johnson, the bridge tender, for respondent.

Flanagin testified that he had been a river boat captain for ten years, a pilot for sixteen years, and held an operator’s license issued by the United States Government. On November 24, 1953, at 4:30 P. M., he was piloting the Nita Dean, which was pushing two barges, end to end, loaded with petroleum products destined for New Orleans, south and downstream on the Illinois waterway approaching the Ruby Street draw bridge. The Nita Dean was approximately 84 feet long and 26 feet wide, and had a radar screen installed ahead of the front mast at such height that it could not pass under the bridge. The two barges totalled approximately 400 feet in length.

The flotilla was proceeding at approximately 1% miles per hour, and could have been brought to a stop within 500 feet, according to Flanagin. When the Nita Dean was approximately one-half mile from the bridge, the pilot signaled the bridge tender by one long blast of the horn, which was the proper signal in accordance with Federal Regulations of River Traffic to give notice for the opening of the draw bridge.

The return signal received from the bridge tender was a flashing green light, which the witness Flanagin stated remained on to the best of his knowledge until one of the barges had passed under the bridge. He saw nothing on or about the bridg'e, which gave an indication of trouble.

When the Nita Dean was approximately 250 feet away, the bridge raised approximately two feet, then stopped, and a red flashing signal light was given therefrom. Flanagin then immediately reversed his engines, and the boat came to a halt immediately after the radar antenna had struck the front edge of the bridge, as the bow of the Nita Dean passed under it. The bridge then opened.

The radar antenna, according to the witness Flanagin, after striking the bridge, fell to the deck, and the' shaft to which the radar screen was attached was bent, and would no longer revolve. He stated that this equipment was in good working condition prior to the accident. After the collision, he resumed the course downstream towards his destination, and had no conversation with respondent’s employee.

Respondent’s witness, Harold Johnson, had been a bridge tender for a period of two months at the time' of the accident. He stated that the Nita Dean was approximately one-quarter mile up stream when the horn signal was given, and that he replied by a green flasher light signal of five seconds duration. He then waited approximately thirty seconds before initiating the bridge raising procedure until he observed a break in the vehicular traffic.

This procedure involved ten separate steps, the first of which, after switching* on the power, was to halt the traffic by lowering successively four gates, one for each traffic lane at each end of the bridge.

The first gate he attempted to lower was the one controlling eastbound traffic. At this time there was no traffic on the bridge, and the approaching vehicles had stopped at each end thereof. This gate could not be completely lowered, according to the witness, because an automobile had stopped directly under it. The bridge raising mechanism was such that it would not operate until all of the traffic control gates were lowered.

Thereupon, Johnson took a megaphone and shouted from the control house to attract the attention of the motorist, and direct him to come across the bridge. He had to shout several times before the motorist finally started across. This consumed approximately one minute. After the motorist proceeded partially across the bridge, he, Johnson, turned on the red flasher signal. It required approximately thirty seconds for the motorist tp complete the crossing.

At this time the Nita Dean, according to Johnson, was 600 to 700 feet from the bridge. After the motorist had completed his crossing, the witness resumed the bridge raising procedure, which .required an additional one minute.

He stated that he watched the Nita Dean, as it approached the bridge, but acknowledged he did not watch it at the times he was engaged in performing the procedure required in raising it.

He further stated that, from his position, he could not see the Nita Dean after it went under the bridge. He heard no unusual noise, and did not see whether any damage was done to the Nita Dean. After it passed through the bridge, he lowered it.

These two witnesses are in conflict with respect to distances and time. It is apparent that either one or both of them are mistaken on these estimates. However, the precise distances of the Nita Dean from the bridg'e at various times is not controlling. It is for us to determine from all of the evidence, and the natural and reasonable inferences to be drawn therefrom, the facts as to first, whether or not the Nita Dean actually struck the bridge, and second, the manner in which the collision, if any, occurred.

With respect to the first question, the witness Flanagin, testified unequivocally that the radar antenna of the Nita Dean collided with the bridge. There was no witness offered by respondent, who expressly contradicted this testimony. Johnson, the bridge tender, stated that he did not see whether any damage was done to the Nita Dean. His testimony to the effect that he heard no collision does not bear greatly on the question, since he acknowledged that there was comsiderable noise around the bridgehouse. Nor, does the fact that he observed no damage to the bridge constitute evidence that no collision occured. He did not state that he inspected the bridge, nor does it appear that the particular collision would damage it.

His acknowledgment that he did not watch the Nita Dean, while operating the bridge, is a plausible reason why he observed no collision.

In order for us to come to the conclusion that no collision occurred, we would, of necessity, be compelled to disregard the sworn testimony of the witness Flanagin, and accord to it no weight whatever. Testimony on this point is not similar to an expression of an opinion on time and distance where a witness might be and often is mistaken. Here the collision either happened, or did not happen. This witness stated that it did, and there is nothing in the record, which causes us to doubt his veracity.

Moreover, George A. Freeman, Jr., Sales and Service Manager for the Radiomarine Corporation of America, New Orleans, Louisiana, and Lester E. Trubey, a radio technician of that company, both testified to repairing the damaged antenna. Also, claimant’s exhibit No. 1, a subrogation receipt from the Westchester Fire Insurance Company in the amount of $875.29, sets forth the fact that the damage resulted from a collision between the Nita Dean and the Ruby Street Bridge on November 24, 1953.

We find, therefore, that the collision did occur.

As to the second question, namely, the maimer in which the collision happened, we find the facts to be: The Nita Dean properly signaled its approach when between a quarter and a half mile from the bridge. The exact distance is not of paramount importance. The return signal from the bridge tender was a green flashing light given for a period of time in accordance with the then existing regulations. The Nita Dean continued toward the bridge at a slow rate of speed approximately 1% miles per hour. No other signal was given until the Nita Dean was too close to avoid the collision. The bridge was clear of traffic, and nothing was apparent to cause the pilot to believe that it would not open in sufficient time. When the Nita Dean was approximately 250 feet from the bridge, the red flasher light came on, and the pilot immediately reversed his engines, and thereafter did all that could have been reasonably expected of him in attempting to stop. •

Respondent’s witness, Johnson, places the Nita Dean 600 to 700 feet from the bridge at the time he gave the red flasher signal. We believe he was mistaken in his estimate of distance. If this were so, not only would the Nita Dean have been able to stop, but the bridge would have been opened before the Nita Dean reached it, and no collision would have occurred.

The bridge tender, after hearing the Nita Dean signal when a quarter to a half mile from the bridge, began to take the necessary steps to raise it. He encountered difficulty through no fault of his own, because an automobile, stopped under the gate, prevented his opening the bridge until the automobile had crossed it. Up to that point, he had acted properly.

He then, however, before giving the red flasher signal to the Nita Dean, expended approximately one minute shouting at the driver of the automobile to attract his attention and instruct him to go across the bridge, when the Nita Dean was approaching in close proximity.

" Here is the point' upon which this case should turn. Was it negligence on the part of the bridge tender to delay giving a red flasher signal until he had finally attracted the attention of the automobile driver? Should he have given the signal as soon as he observed the automobile stopped under the gate? Was the pilot of the Nita Dean entitled to rely upon the bridge opening in the absence of a specific signal to the contrary?

We have noted the authorities cited by both claimants and respondent, and the regulations and directives issued by the Corps of Engineers, U. S. Army, regarding signals to be given by vessels and bridge tenders in the Joliet area.

The general principle of law regarding the use of navigable streams by owners and operators of vessels and bridges is set forth in Clement vs. Metropolitan Westside El Ry. Co., 123 Fed. 271 at page 273, which was cited and followed by this Court in the case of Fabick Tugboat Rental Co., Inc., A Corporation, vs. State of Illinois, 21 C.C.R. 360, and in a number of cases throughout the country.

“A bridge spanning a navigable river is an obstruction to navigation tolerated because of necessity and convenience to commerce upon land. Such a structure must be so maintained and operated that navigation may not be impeded more than is absolutely necessary, the right of' navigation being paramount. It is incumbent upon the owner that the bridge be so constructed that it may be readily opened to admit the passage of craft, and maintained in suitable condition thereto. It is also his duty to place in charge those who are competent to operate the bridge, to watch for signals, and to open the bridge for the passage of vessels, and for the performance of such delegated duty he is responsible. It is also his duty to equip the bridge with proper lights giving warning of the position of the bridge and of its opening and closing. If for any reason the bridge cannot be opened, proper signals should be given to that effect, such as will warn the approaching vessel in time to heave to. A vessel, having given the proper signal to open the bridge and prudently proceeding under slow speed has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She is not bound to heave to until the bridge has been swung or raised and locked, and to critically examine the situation before proceeding (City of Chicago vs. Mullen, 54 C.C.A. 94, 116 Fed. 292), but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and may so proceed until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be opened (Manistee Lumber Company vs. City of Chicago (D.C.), 44 Fed. 87; Central Railroad Company of New Jersey vs. Pennsylvania Railroad Company, 8 C.C.A. 86, 59 Fed. 192), when it becomes the duty of the vessel, if possible, to stop, and, if necessary, to go astern.”

These principles are also set forth in Vol. 45 of Corpus Juris in the chapter on Navigable Waters. With particular reference to the duty of a navigator, it reads as follows at paragraph 80BB:

“Navigators are only required to use ordinary skill and care in attempting to pass through a draw. A vessel having signaled for the opening of a draw may properly proceed at slow speed on the assumption that the draw will open until the contrary appears by proper warning or otherwise, and is not to be held contributorily negligent, because of acts performed in the emergency created by the negligent management of the draw, even though the navigators may not have pursued the wisest course under the circumstances; but, on the other hand, the navigator must exercise due care, and the pilot of a vessel may not speculate on the hazards incident to a failure to open a draw, and continue to advance toward an unopened draw contrary to the demands of prudence, or where a harbor regulation requires that the vessel be checked unless a return signal from the bridge is received, and it is negligence for a vessel to proceed after receiving a signal given in time and for good cause that the bridge is not open.”

Therefore, unless changed by statute or regulation with the force of a statute, the pilot of the Nita Dean, after he signaled and received the acknowledgment, had the right to presume that the bridge would open in sufficient time to permit safe passage’, and such presumption continued to exist until the red flasher signal was given from the bridge. Respondent’s bridge tender owed an affirmative duty to immediately signal the Nita Dean, as soon as it reasonably appeared that the bridge could not be opened without delay.

Respondent contends, however, that, by virtue of the regulations and directives issued by the IT. S. Corps of Engineers, a pilot can no longer presume that the bridge will be opened barring any affirmative warning or reasonably apparent condition to the contrary. He must stop, if necessary, and await an affirmative signal that the bridge is being opened before he is entitled to proceed.

We do not agree with this construction.

The regulations were introduced into evidence as respondent’s exhibits Nos. 1 and 2, the pertinent parts of which read as follows:

Respondent’s exhibit No. 1—
“Upon receipt of signal from an approaching vessel, the bridge tender will answer by turning on the alternating green flashing lights for a short interval of about 5 seconds. As soon as highway traffic is stopped, and the bridge starts to open, the alternating green flashing lights will again be turned ón, and will remain on until the vessel has cleared the bridge.
If the draw cannot be opened immediately, or if open, must be closed immediately, the signal from an approaching vessel will be acknowledged with the alternating red flashing lights.
The operation of the regular pier lights and center navigation lights of each bridge will not be changed.
All vessel Masters are urged to cooperate with the bridge tenders and expedite the movement of their craft through bridge draws as promptly as practicable.”
Respondent’s exhibit No. 2—
“Upon signal from an approaching vessel, the bridge tender shall answer the signal by turning on the flashing green lights for a short interval, three to five seconds, then turn off. This will let the pilot know that his signal has been heard, and that the bridge tender is ready to open the bridge.
Just as soon as traffic has been stopped, and the bridge starts to open, the green flashers will again be turned on, and left on until the vessel has cleared the bridge.
The red flashing signals are to be used only as a signal that the bridge cannot be opened immediately due to a number of reasons, or, in any emergency, where it would be hazardous for a vessel to proceed toward the bridge unless under positive control.”

Neither exhibit contains a specific direction requiring a vessel to stop until the second green signal is given.

If it was the practice to require the vessel to stop and await the raising of the bridge before approaching it, this green signal would be unnecessary during daylight hours of good visibility, since it would be obvious to anyone that the bridge was opening. It appears to us that this signal’s purpose is mainly designed to give notice when visibility is bad or limited, and as a signal to approaching vessels during periods of good visibility that speed may be increased in order to facilitate passage with the least possible delay.

The use of the red flasher light is not restricted by the directives to the initial reply upon receipt of the approaching vessel’s signal.

If such a narrow construction was announced and given effect, it would render the signal useless for the most part, since the real emergencies, wherein danger is threatened, arise when a vessel comes into close proximity of a bridge, and not when one quarter to a half mile away. The contents of exhibit No. 2 provide for its use in all emergencies:

“The red flashing signals are to be used only as a signal that the bridge canont be opened immediately due to a number of reasons, or, in any emergency, where it would be hazardous for a vessel to proceed toward the bridge unless under positive control.”

We believe that these directives fit into the framework of the law heretofore announced on this question, and do not alter it in any respect.

Consequently, we find that the pilot of the Nita Dean was in the exercise of ordinary care in proceeding toward the bridge, at a slow speed, after receiving the acknowledging green flasher light signal from the bridge. We further find that he exercised ordinary care in attempting to bring his vessel to a halt upon receiving the red flashing signal. The claimants, therefore, have borne the burden of proving that they were in the exercise of ordinary care for the safety of the Nita Dean at the time and immediately prior to the collision in question.

We further find that the bridge tender was negligent in failing to immediately give the red flashing signal, as soon as he observed the automobile under the gate, which prevented an immediate opening of the bridge. It was his delay in giving this warning signal that proximately caused the collision in question. Had he given the signal, the Nita Dean would have been able to completely stop before reaching the bridge. He should have foreseen this situation, and acted accordingly. The facts, as we have found them to be from the record presented to us, establish the necessary elements to the allowance of the claim.

With respect to the damages, we find that the repairs in the amount of $1,375.29, established by the testimony of the witness Freeman and the witness Trubey, are fair and reasonable charges for repairing the damage done in the collision. We also find from the evidence that claimant, Westchester Fire Insurance Company, paid to the owners of the Delta Towing Company the sum of $875.29 under the terms of a $500.00 deductible policy of insurance, and that the owners of the Delta Towing Company paid the balance due on the bill, which amounted to $500.00.

We, therefore, allow the claim of the Westchester Fire Insurance Company in the amount of $875.29, and the claim of J. E. Vickers and F. N. Byrd, Co-Partners d/b/a Delta Towing Company, in the amount of $500.00.


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    (No. 4705
    James J. Hammer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.

    John F. Gnadinger, Attorney for Claimant.
    Latham Castle, Attorney General; Thomas Cronin, Assistant Attorney General, for Respondent.
   Fearer, J.

This is a claim for personal injuries sustained by claimant on August 8,1954, at or about the hour of 11:30 P.M., on State Route No. 52, approximately four miles southeast of the City of Joliet, Will County, Illinois. The record consists of the following: ■

1. Complaint.
2. Transcript of evidence.
3. Motion of claimant for an extension of time to February 28, 1957 in which to file brief.
4. Order of the Chief Justice granting the motion of claimant for an extension of time to and including February 28, 1957 in which to file brief.
5. Abstract'of evidence.
6. Brief and argument of claimant.
7. Brief and argument of respondent.
8. Proof of service of a copy of the brief and argument of respondent on the office of counsel for claimant.
9. Reply brief of claimant, together with attached proof of service of a copy of same on the office of the Attorney General.
10. Motion of claimant for leave to withdraw request for oral argument.
11. Proof of service of a copy of the motion of claimant on the office of the Attorney Geenral.
12. Order of the Chief Justice granting the motion of claimant for leave to withdraw request for oral argument.
13. Commissioner’s Report.

Since respondent did not file an answer, a general traverse of all the allegations of the complaint will be considered.

On the evening in question, claimant, his wife, Lorraine, his daughter, and two other boys were returning from a picnic in Manhattan, Illinois. Mr. Hammer, claimant, was riding in his 1954 Chevrolet Club Coupe, which was being driven by his wife. He was sitting in the rear of said automobile on the right-hand side: The right rear window was approximately one-half way open. The evening was foggy and -warm, visibility being about ten to fifteen feet. Just prior to the accident, claimant was smoking, and was not riding with his arm extended from the window; however, he did put his hand out of the window to dispose of the cigarette. In doing so, his hand came in contact with a metal sign with diagonal marks thereon, being black and white in color.

The top portion of the sign was tilted over the paved portion of the highway, and extended approximately 4½ inches from the outside of the pavement. The sign in question was a few feet from a narrow, concrete bridge, which is better indicated by claimant’s exhibit No. 6, being a photograph of the sign, bridge, and the highway at the location of the accident.

The record is not clear as to the height of the sign, the distance that the sign was from the concrete bridge, nor as to how far the boy, who was riding in the front seat on the right-hand side, had his elbow extended out the front window. There is some evidence, however, that the base of the sign was two feet from the north edge of the bridge.

The accident happened near a curve in the highway north of the bridge. Claimant’s wife heard a thud, and she pulled around the curve, stopping on the shoulder. An examination was made of claimant’s right hand, and it was discovered that it was cut across the knuckles between the middle and ring fingers. Bight stitches were necessitated to close the wound.

The only medical evidence produced was the doctor’s written report, admitted in evidence by stipulation, which gave a complete history of treatment, including first aid, post-first aid treatment, reading of X-Rays, and various measurements of the hand and forearm. The diagnosis and opinion of the doctor were to the effect that claimant had suffered an injury to the dorsum of his right hand, and that there was a 4 cm. scar over the dorsum of the right hand. The proximal end of the third metacarpal was displaced approximately one-eighth of an inch in its relationship to the wrist bone. Because of this abnormal relationship, there may well be the development of a traumatic arthritis within the next few years, but at the present time there is no evidence of any arthritis.

Neither claimant, his wife, nor any of the other occupants of the car returned to the scene of the accident on the evening in question, but took claimant immediately to St. Joseph’s Hospital, Joliet, Illinois, for emergency treatment.

At the time, claimant was employed by the Jewel Tea Company, and reported to work the next day, being August 9, 1954. Claimant and his wife returned to the scene of the accident, and examined the sign, which they testified was in the same condition, as previously referred to, and was protruding and extending over the highway about 4% inches. The height is not mentioned in the record. Both claimant and his wife testified that on the upper lefthand corner of the sign there was a mark, which indicated that something had struck it. The mark referred to was caused by the removal or elimination of dust and dirt, which were present on the rest of the sign.

A brother of claimant took three photographs, claimant’s exhibits Nos. 6, 7 and 8, of the scene of the accident. These pictures were taken on August 11,1954.

A witness, by the name of Mundt, who lived at Manhattan, Illinois, testified that he noticed the sign was bent, but did not report it to anyone. He was indefinite as to the time when he noticed that the sign was in a bent position, and was extending over the highway.

Another witness, by the name of Klimek, who lived at Manhattan, Illinois, testified that the sign was tilted toward the highway, and that he had noticed this for three weeks prior to the accident, but did not report it to anyone.

At the close of claimant’s case, respondent offered in evidence the Departmental Report, which merely shows that the jurisdiction of this particular part of the highway was under the Department of Public Works and. Buildings of respondent from the time of its original construction, which was back in 1924 and 1925. It further pointed out that respondent did not have actual notice of the accident or injuries received by claimant until the complaint was filed in this Court.

The State of Illinois is not an insurer of all persons traveling upon its highways. However, it is under a duty and obligation to maintain its highways and signs, which are located along the shoulders, in such a manner so as not to be injurious to the traveling public operating vehicles, or riding in vehicles, with due care and caution for their own safety and the safety of others.

There is evidence by at least two witnesses that, even though the state did not have actual notice of the defective condition of the sign and its extension over the paved portion of the highway, it did have constructive notice, as this condition existed, according to witnesses, for a considerable period of time prior to the time of the accident, and should have been corrected by the maintenance men serving this particular stretch of road in Will County.

There was no evidence offered that any of the witnesses testifying for claimant saw the sign on the night of the accident. However, we believe there is sufficient circumstantial evidence to establish the negligence of respondent in permitting the sign to remain in the position in which it was on the night of the accident, and that it was respondent’s negligence, which was the proximate cause of the injuries to claimant. We cannot find any evidence where claimant was guilty of contributory negligence.

Circumstantial evidence is legal evidence. “Where there is no eyewitness, the fact at issue may be proved by circumstantial evidence. Such evidence consists of proof of certain facts and circumstances from which the court may infer other connected facts, which usually and reasonably follow according to the common experience of mankind. The general rule is that all facts are admissible in evidence, which naturally and logically tend to prove or disprove the fact in issue.” (Case cited is Ohio Bldg. Vault Co. vs. Indus. Board, 277 Ill. 96.)

Inasmuch as there is a lack of direct evidence, we believe claimant has established his claim, if not entirely by direct evidence by certain circumstantial evidence, which established the fact that the sign in question did protrude over the highway, and was injurious and dangerous to the traveling public on a foggy night, and that claimant’s injuries were sustained when his hand came into contact with the sign, as a result of which he received personal injuries.

We believe claimant has maintained the burden of proving that, even though the state did not have actual notice, it had constructive notice. There was nothing offered by respondent to rebut this presumption.

We do feel it was strange that the accident was not reported to the Division of Highways, Sheriff of Will County, State Police, or anyone else, and that the first notice that respondent had of the claim and injuries received by claimant was when this suit was filed.

It is rather strange that the sign did not come in contact with any part of the automobile, and that claimant’s hand was the only object, which came into contact with the sign. This might, however, establish that the height of the sign would be approximately to the car window from which claimant put his hand in disposing of his cigarette.

The Commissioner found that claimant had lost approximately $214.40 in wages, and had paid $246.15 for medical care and treatment, making a total of $460.55.

The medical report of Dr. Leimbacher indicates that claimant sustained a fracture of the proximal end of the third metacarpal, which was healed in a good position. It further points out that there is an eighth of an inch displacement of the proximal end of the third metacarpal in its relationship to the wrist bone. The last X-Ray, which was taken on March 1, 1955, revealed no evidence of traumatic arthritis at that time, but did show that the proximal end of the metacarpal was still approximately one-eighth of an inch dorsally displaced. The report of the doctor shows that he was of the opinion that, because of the abnormal relationship of the third metacarpal, there will be a development of traumatic arthritis in the wrist within the next few years, but at the present time there was no evidence of any arthritis.

Based on the expenses in the amount of $460.55, and the nature and extent of claimant’s injuries, as outlined in Dr. Leimbacher’s report, it is the opinion of this Court that claimant should have and receive the sum of $1,960.55.


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    (No. 4707
    Charles Dedich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.
    Edward D. Lapperre, Attorney for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Wham, J.

This is a claim for damages sustained on March 3, 1956 by claimant, Charles Dedich, elevator operator at the Merchandise Mart Building in the City of Chicago, when struck and injured by an electric truck operated by Daniel B. Owings, an employee of the Department of Labor, Division of Unemployment Compensation, State of Illinois.

Claimant contends that respondent’s employee negligently moved the truck without warning while in the elevator, which claimant was operating. Respondent contends that the employee was not negligent, and that claimant was contributorily negligent.

Three witnesses testified to the happening of the accident, namely, claimant, Charles Dedich, the state employee, Daniel B. Owings, and a passenger in the elevator, Adolph Belovar. From their testimony the facts are these:

Respondent’s agent drove the,electric truck, which was used to move supplies in the Merchandise Mart Building, into the elevator clearing the door. Claimant, with his back to the truck, was in the process of closing the door when respondent’s employee backed the truck over the right foot of and against claimant knocking him out of the elevator onto the floor. Claimant did not direct the moving of the truck, and the reason given by respondent’s employee for moving it was to make room in the elevator. He moved the truck without looking in that direction, and gave no warning to claimant.

In our opinion, these facts clearly establish that respondent’s employee was negligent, since he should have looked before he moved the truck, and warned claimant of his intended move.

We further are of the opinion that claimant was in the exercise of ordinary care for his own safety, and should recover from respondent for his damages.

From the evidence, the injury sustained was not a serious or permanent one. There were no broken bones, and, in fact, no medical evidence was produced. Claimant’s counsel acknowledged at the hearing that the injury was not permanent.

Claimant described his own injuries as being to the instep and left side of his right foot, which became swollen and too painful to use for approximately one week. He lost two weeks work at $1.95 per hour for a forty hour week. He received payments under the Workmen’s Compensation Act for one week and three days, which amounted to $41.43. The ■ Massachusetts Bonding and Insurance Company paid that amount to claimant, and also paid the doctor bill of $34.00. They have notified the state in writing of their subrogation claim in the total sum of $75.43, and requested payment thereof.

Claimant also received one-half pay for 8 days from his employer amounting to $60.80, and union benefits in the amount of $17.00, thus totaling $117.80 received by him for his lost wages. Deducting this sum from the amount of $156.00, which he would have earned had he not been injured, establishes a net wage loss of $38.20.

Claimant testified that he suffered considerable pain as a result of the injury. At the time of the hearing, approximately one year after the injury, he still noticed an occasional sharp pain of a short duration. His foot has a tendency to swell after he has worked a few hours, and he stated that it is necessary for him to loosen his shoe laces.

It is difficult to appraise pain in the terms of money, especially where there is no permanency, as is conceded by all parties in this case. Apparently the severe pain was of only a short duration, and the periodic pain and discomfort, which claimant describes as late as a year after the accident, was relatively slight. The Commissioner, who heard the case, and observed claimant and his injury, expressed the opinion that $200.00 was a fair and reasonable amount for the pain and suffering. We also believe that this amount is fair and reasonable from claimant’s standpoint.

In our judgment, the claim in this case should be allowed in the total sum of $313.63.

In view of the fact that the Massachusetts Bonding and Insurance Company, the compensation carrier for the employer of claimant, has placed respondent on notice of its subrogation claim in the amount of $75.43, it is the order of this Court that claimant shall receive the sum of $238.20 free and clear of the subrogation claim, and that the Massachusetts Bonding and Insurance Company shall be entitled to receive $75.43, provided, however, that said company execute a full and complete release running to the State of Hlinois.


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    (No. 4757
    Saul Goodman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.

    Epton, Scott, McCarthy and Epton, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

A claim has been filed in this Court for property damage to claimant’s automobile growing out of an accident, which occurred on May 7,1956, at or about the hour of 5:30 P.M., at the intersection of Wacker Drive and Monroe Street, in the City of Chicago, Illinois.

Respondent’s vehicle, a truck of the Illinois National Guard, was driven by Master Sgt. Solario.

The record consists of the complaint, which was filed in this Court-on January 4, 1957. It charges respondent with general acts of negligence, i.e., failure to keep the vehicle driven by Master Sgt. Solario under proper control ; disregard of traffic signals; failure to stop said automobile at a stop sign, where claimant was waiting; and, failure to yield the right of way to traffic having the green light at the intersection, and proceeding in the opposite direction just prior to the collision.

No answer having been filed by respondent, a general traverse is considered.

The only witness testifying in the case was claimant. The only evidence offered by respondent was a Departmental Report.

As to damages sustained as a result of said accident, claimant has proven by a preponderance or greater weight of the evidence a total cost of repairs to his automobile in the amount of $105.23.

The Commissioner, who heard this case, recommended that the claim be allowed in the sum of $105.23. The Commissioner interrogated claimant, and had an opportunity to observe him, and his demeanor and manner of testifying. After making a careful review of the Departmental Report, he found that claimant maintained the burden of proving that he was free from contributory negligence, and that it was the negligence of Master Sgt. Solario in failing to observe claimant’s automobile parked at the intersection waiting for the traffic signal to change, which was the proximate cause of the accident, and which resulted in the damages testified to by claimant. Also, an exhibit was introduced substantiating the amount of damages to the trunk and bumper of claimant’s automobile. The sum of $105.23 was paid to restore said damaged parts to the condition they were in just prior to the time of the accident.

It is, therefore, the order of this Court that claimant, Saul Goodman, be allowed his claim in the sum of $105.23.