author: JUSTICE SCHEINEMAN

text:
    Melvin C. Foster, Plaintiff-Appellant, v. Union Starch & Refining Co., and Terminal Railroad Association of St. Louis, Defendants-Appellees.
    Term No. 56-F-1.
    Fourth District.
    May 26, 1956.
    Rehearing denied October 25, 1956.
    Released for publication October 26, 1956.

      Dougherty & O’Connell, of East St. Louis, for plaintiff-appellant; John F. O’Connell, of East St. Louis, of counsel.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for Terminal Railroad Association of St. Louis, defendant-appellee; John C. Roberts, and R. E. Costello, Jr., both of East St. Louis, of counsel; Pope and Driemeyer, of East St. Louis, for Union Starch & Refining Co., defendant-appellee; Frank M. Rain, of East St. Louis, of counsel.
   JUSTICE SCHEINEMAN

delivered the opinion of the court.

Melvin C. Foster, the plaintiff, was injured while working for the defendant, Términal Railroad Association of St. Louis, switching cars within the premises of the defendant, Union Starch & Refining Co. The jury returned a verdict against said Starch Co. in the amount of $15,000 and found the Railroad Association not guilty. The trial court then entered judgment on the verdict as to the Eailroad Association, but, on motion of the defendant, Starch Co., entered judgment nptwithstanding the 'verdict in its favor, or, in the alternative, granted a new trial to this defendant.

The plaintiff is now appealing against both defendants, contending as against the Starch Co. that the case presented a jury question, that the facts were such as to come within the doctrine of res ipsa loquitur, and that the trial court was in error in granting a judgment notwithstanding the verdict, or in the alternative a new trial. As against the Eailroad Association, plaintiff contends that an instruction given by said defendant so misstated the' law that the jury had no alternative but to render a verdict against the manifest weight of the evidence, and that the trial court was in error in not granting plaintiff’s motion for a new trial.

Consideration of the case against the Starch Co. requires a review of the testimony. Plaintiff testified that, on the afternoon in question he was engaged in switching loaded cars from this defendant’s dock and replacing them with empties. While riding on the rear stirrup of a car loaded, or partially loaded, with the defendant’s products, he heard a rumbling sound above him, continuous for a few seconds as if something were rolling or falling, then an object struck him on the head and shoulder, causing the injury complained of.

The object was identified and introduced in evidence. It is described as a pinch bar, made of hexagonal steel, variously estimated as between 3 and 4 feet long, and an inch in diameter, one end turned at an angle of 45 degrees and flattened, and the other end turned slightly and tapered. (By actual measurement, the bar is 42 inches long.)

The car in question had come onto the premises the prior morning empty and had been loaded by this defendant. Several witnesses for plaintiff testified that the bar in evidence was the same as those used by this defendant in moving drums of glucose in the plant, on the loading dock, and in cars to wedge them closer together, and the Starch Company used such bars in varying lengths. Sometimes they were used to pry open a car door. Several witnesses for this defendant denied that this type of bar was used by the company. One of them, a blacksmith who made the bars for this defendant from hexagonal stock, testified that all this company’s bars were longer, and he had never made a bar like the one in evidence.

On cross-examination, this witness conceded that he made bars to order in lengths of 4, 4% and 5 feet, and that sometimes bars are reground after use, that this bar had been in use for some time. He made them of hexagonal steel with one end turned at an angle of 45 degrees and flattened, and the other end turned and tapered.

Witnesses for the railroad testified that their company also used bars, but of shorter length, about 30 inches, and a long bar of % inch stock; that they never used a bar like the one in evidence. Counsel for defendant Starch Co. quote a railroad witness as saying: “We have bars similar to that. We have used bars similar to that.” This quote is lifted from the following context: “I have never seen a bar like Plaintiff’s Exhibit 1 on Terminal Property. We don’t use that type of bar. ... I have never seen that type of bar that heavy and that diameter. We have bars similar to that. They don’t use that type of bar. I have never seen it. We have used bars similar to that.”

Another witness testified he had formerly worked for defendant Starch Co., and had seen bars similar to Plaintiff’s Exhibit 1 in this, company’s premises, and later he worked in the blacksmith shop and had worked on pinch bars 4 or 5 feet long, also smaller ones, 2 to 2% feet.

No attempt is here made to refer to all witnesses who testified about the type of bars in use. It suffices to say that the ■ testimony on this subject is highly conflicting. : ■

The argument of plaintiff and of defendant Starch Co. is largely an elaborate discussion of the law of res ipsa loquitur. Plaintiff, however, also discusses the circumstantial evidence in the case and cites decisions which make no reference to res ipsa, such as Lindroth v. Walgreen Co., 407 Ill. 121, Lavender v. Kurn, 327 U. S. 645, 90 L. Ed. 916, 66 Sup. Ct. 740. Eeference is also made to the rule that custody and control may be proved by circumstantial evidence. The argument of defendant Starch Co. practically ignores all the circumstantial evidence and emphasizes the rule of res ipsa loquitur.

Any research into res ipsa loquitur will disclose that there is a great deal of confusion of thought in this field, some of it engendered by the alacrity with which courts seize upon a name as a tag for some proposition, with resultant loss of logic. On the other hand, many courts have striven to enunciate a logical distinction between this principle and ordinary cases of circumstantial evidence. This is a difficult and precarious task, because of the infinite varieties of cases which arise, and do not clearly fall into either arm of the supposed distinction. In Michigan it has been held that there is no separable principle of res ipsa loquitur and its existence is denied. Ballance v. Dunnington, 241 Mich. 383, 217 N. W. 329, 57 A. L. R. 262. In New York it is said to be but a part of the rules of circumstantial evidence. Marceau v. Rutland R. Co., 211 N. Y. 203, 105 N. E. 206, 51 L. R. A. (N. S.) 1221.

We believe there is an appropriate, but narrow, field for the doctrine of res ipsa loquitur, that the instant case does not fall in that field and can be demonstrated to be a case of circumstantial evidence. This, evidence presents two questions: (1) does the evidence prove or tend to prove that somebody was negligent? (2) does the evidence point with a reasonable degree of probity to the guilty party?

The first question is the easier. Since the bar has no means of self-locomotion, it must have attained its position through a human agency which did not thereupon remove it. The vibration, bumping, and swaying of the car in subsequent movement is certain to dislodge it, unless sooner removed. And surely it is reasonably foreseeable that in falling there is likelihood that it will strike someone, or cause a train wreck, or other damage. From these circumstances and foreseeability of consequences, it is our opinion that there is substantial proof of negligence on the part of someone.

Of course, this might be regarded as saying that the position of the bar “speaks for itself.” We have no objection to such a statement, provided it is not translated into Latin to attach a bevy of attendant rules not logically applicable. For example, the rule sometimes applied is that res ipsa loquitur is not evidence, but merely raises a presumption. Here we have more than a presumption, we have evidence of negligence. As is often the case with circumstantial evidence, it speaks as persuasively as an eyewitness. And this evidence of how the accident occurred is, according to some cases, sufficient to remove the case from the principle of res ipsa loquitur. Pennsylvania Co. v. Roberts & Schaefer Co., 250 Ill. App. 330, 339; Kirchoff v. Tzinberg’s Park “N” Shop Food Stores, Inc., 7 Ill.App.2d 201.

Since these citations are taken from defendant’s brief, it is necessary to add that we regard the disposition of the remaining question as decisive of the case, and that the inapplicability of res ipsa loquitur is not the conclusive factor. Surely, there is little logic or justice in concluding that a case should be thrown out of court merely because a plaintiff has gone further than to raise a presumption of negligence, by evidence which proves or tends to prove it existed in fact.

The answer to the second question is by no means free from doubt. Probably bars of the general type here involved are in wide use, so that its mere presence on a boxcar does not point to any particular person as its owner, or as having been in control of it. The testimony indicates that the defendant railroad used bars of the general type called pinch bars, but never used one like this. There is no evidence to the contrary. This must be regarded as eliminating the railroad.

As to defendant Starch Co., it has been previously noted that the testimony is highly conflicting, but there is the testimony of several witnesses that this defendant used bars like the one in evidence, that they had been seen, and there were descriptions which also fit this bar with nicety.

Standing alone, this would be a very weak case. But there are other circumstances in evidence. The car in question had been moved into the premises from outside the previous day, which is some indication the bar was not on the car then, for it did not fall off in .that movement. Between that occasion and its movement the next day, the car was at the loading dock and was being loaded by this defendant’s employees. On the next movement of the car, which was to switch it from the position adjacent to the dock to the next parallel track, the bar falls, and, according to substantial evidence, it is a bar like those used by this defendant.

We have concluded that the circumstances thus disclosed, do point to this defendant’s employees as the ones who are responsible' for leaving the bar in that position. There are, of course, other possibilities which cannot be excluded with certainty. Under this condition; it is the law of this state that a jury question is presented, since it is only necessary that the conclusion arrived at by the jury be based on an inference that is itself reasonable under the facts.

“A verdict may not be set aside merely because the jury could have drawn different inferences or because judges feel that other conclusions than the one drawn would be more reasonable.” Lindroth v. Walgreen Co., 407 Ill. 121. A plaintiff is not required to prove his ease beyond a reasonable doubt or exclude every hypothesis suggesting a cause other than negligence. Heimsoth v. Falstaff Brewing Corp., 1 Ill.App.2d 28. “Circumstantial evidence is the proof of certain facts and circumstances in a given ease from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. ... A greater or less probability, leading on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts.” Devine v. Delano, 272 Ill. 166.

In holding that the evidence in this case affords a reasonable basis for the inference supporting the conclusion of the jury, we must necessarily find that the trial court was in error in granting the motion of defendant Starch Co. for judgment notwithstanding the verdict.

It is interesting to note that the trial court first denied said defendant’s motions for directed verdict at the close of plaintiff’s case and at the close of all the evidence on the grounds that the case presented a question of fact to be submitted to the jury. Then, subsequently, the court allowed said defendant’s motion for judgment notwithstanding the verdict, on the grounds that the res ipsa loquitur rule was not complied with in that control and custody of the pinch bar was not clearly shown to be in the defendant. It is our opinion that the res ipsa loquitur rule confused the real issue and led to the error of the trial court in granting the motion on the stated ground “the evidence must clearly show that the exclusive control and management of the instrument” was in this defendant.

Since no other reason was advanced by the trial judge for granting the motion for new trial, and no reversible error appears in the proceedings, that order will likewise be reversed.

As to the judgment on the verdict for the defendant railroad, the whole argument of the plaintiff concerns the propriety of an instruction given at the request of the defendant concerning the duty of a master to inspect places of work, etc. In plaintiff’s motion for a new trial as to this defendant, he neither specified the instruction nor the grounds of his objection. Paragraph 190, Chapter 110, Illinois Revised Statutes, 1953, required that the grounds be set forth with particularity in the motion for new trial. Failure to do so has frequently been held to constitute a waiver of the point on appeal. Three cases on this subject as to objections to instructions are: Rudolph v. City of Chicago, 2 Ill.App.2d 370; Krug v. Armour & Co., 335 Ill. App. 222; Pajak v. Mamsch, 338 Ill. App. 337. While there are other cases to the contrary, we are of the opinion that the reasoning given in the cited cases justifies the rule therein announced. The modern practice and procedure is designed to require both parties to disclose their claims and defenses and to conduct the contest in the open. Nearly all of the old common-law rules which permitted a party to conceal something and spring it as a surprise have been abolished. We, therefore, hold that the objection to instructions in this ease is not available for review in this court.

Accordingly, the judgment for the defendant railroad is affirmed, and the order setting aside the verdict of the jury or in the alternative granting a new trial as to defendant Starch Company is reversed and judgment entered here on the verdict.

Affirmed in part and reversed in part.

BARDENS, P. J. and CULBERTSON, J., concur.


source: Caselaw Access Project

author: JUDGE CARROLL

license: Public Domain

text:
    Robert H. Reed, Plaintiff-Appellant, v. Gordon Sands, and Beula Sands, Defendants-Appellees.
    Gen. No. 10,080.
    Third District.
    October 16, 1956.
    Released for publication November 1, 1956.
    Frederick R. Pefferle, of Springfield, for appellant.
    Jenkins, Olsen and Cantrill, of Springfield, for appellees.
   JUDGE CARROLL

delivered the opinion of the conrt.

Plaintiff appeals from a judgment of the Circuit Court of Sangamon County in favor of the defendant, Cordon Sands.

The action was brought for recovery of damages to plaintiff’s automobile alleged to have resulted from the negligence of Cordon Sands in operating an automobile owned by his mother, Beula Sands. The latter filed a counterclaim for damages to her automobile occurring in the same accident. The cause was tried by a jury and at the close of all the evidence the Court directed a verdict in favor of the defendant Beula Sands as to the complaint. Submission of the remaining issues to a jury resulted in verdicts finding the defendant Cordon Sands not guilty on the complaint and the plaintiff not guilty on the counterclaim.

The points urged by plaintiff as supporting his contention that the judgment should be reversed and a new trial granted are (1) that he was denied a fair and impartial trial by reason of improper remarks made by the Trial Judge and (2) that the Trial Court erred in refusing to admit certain evidence pertaining to the plaintiff’s damages. .

The remarks, which it is claimed resulted in prejudicing plaintiff’s cause before the jury were made during the course of plaintiff’s examination as a witness. A question put to him was as follows: “When you observed this car, which was then on your left at or about the crosswalk, do you know what its speed was?” The answer of plaintiff was: “By golly if he was doing a mile under 40, I don’t know anything about speed; and that is suicide on that street.” Counsel for the defendant interposed an objection and moved to strike the answer. The Court in its ruling on the objection said: “It may be. The witness — you can’t make a speech before the jury. You are to answer the question.” To this remark the witness said “Yes sir.” The Court then made the following statement:

“The court doesn’t like to reprimand the witness for interjecting matters into the subject matter here, but I am warning you now not to make speeches to the jury or add anything to your answer here that are not called for by the question. The same may be stricken.”

The record further shows that just prior to giving the answer which occasioned the Trial Court’s remarks, the plaintiff, when asked as to the location of a car with reference to the curb line of the street, gave this answer: “It was about the crosswalk coming like the dickens.” No objection appears to have been made to this answer. A number of other answers given by the plaintiff indicate a marked tendency on his part to include therein matters far beyond the scope of the questions put to him.

Plaintiff’s contention that the Trial Court’s remarks warrant a reversal cannot be sustained unless it appears that the same were of such a nature as would ordinarily create prejudice in the minds of the jury. Anderson v. Inter-State Business Men’s Acc. Ass’n of Des Moines, la., 354 Ill. 538; Featherstone v. People, 194 Ill. 325.

The record indicates clearly that the answers of the witness to which the Court referred not only exceeded the scope of the questions propounded to him but also contained argumentative assertions unrelated to the subject of the examiner’s inquiry. It is also apparent that if the' witness was permitted to continue such practice, the same might well have resulted in prejudice to the defendant’s rights. In admonishing the witness against interjecting extraneous matters into his answers,- the Court appears to have properly refrained from expressing an opinion concerning the credibility of the witness or the weight to be accorded his competent testimony.

The language employed appears to have made it clear that criticism was being made only of the witness’s propensity for volunteering statements not responsive to the questions asked of him. We think the jury could not have otherwise understood the Court’s remarks. The fact that the Court reminded the witness of his duty to respond to the questions put to him is not in itself indicative of hostility towards such witness. In admonishing the witness the Court did not resort to the use of harsh and intemperate language.

Applicable to the question raised by plaintiff is the following expression of the Supreme Court found in Schaffner v. C. F. Massey Co., 270 Ill. 207.

“While there is some warrant for the contention that the conduct of the court during the trial might be construed as indicating hostility toward certain of plaintiff in error’s witnesses, still, when all of the circumstances are considered under which the remarks were made, we think they were not so understood by the jury nor was the cause of plaintiff in error prejudiced thereby. Other remarks complained of were made in chambers, out of the hearing of the jury, and, of course, could not have had any such effect. The trial court in the matter of the conduct of the trial must necessarily be allowed a wide discretion in admonishing witnesses to answer the questions put to them and in compelling obedience to its rulings made during the course of the trial. It is only when the remarks of the trial court of that character are unnecessarily severe and such as are liable to cause prejudice in the minds of the jury that they constitute ground for a reversal of the judgment in this court.”

Considering the circumstances under which the remarks complained of were made, we are of the opinion that the same were not so severe, excessive and improper as to prejudice the plaintiff’s case in the minds of the jury.

In view of our conclusion that the plaintiff was not denied a fair trial by reason of the Trial Court’s conduct, it is unnecessary to further consider the other point argued which, relates only to the admission of evidence relating to damages.

The judgment of the Circuit Court is affirmed.

Affirmed.

REYNOLDS, P. J. and ROETH, J., concur.


text:
    In Matter of Estate of Luella George, Deceased. Glenn Haines, Jr., Executor of Last Will and Testament of Luella George, Deceased, Plaintiff-Appellee, v. Floy George, and Lyman Haines, Incompetent Persons, Defendants-Appellants.
    Gen. No. 10,066.
    Third District.
    October 16, 1956.
    Released for publication November 1, 1956.
    Stuart J. Traynor, of Taylorville, for appellants.
    John W. Coale, of Taylorville, for appellee.
   JUDGE CARROLL

delivered the opinion of the court.

Luella George, deceased, appointed Glenn Haines, Jr., plaintiff herein, to he the executor of her Will. The instrument, which was witnessed by Homer D. McLaren, an attorney, and two other persons, contained the following provision: “It is my Will that Homer D. McLaren, attorney, be the attorney for said executor.” The executor complied with this direction in the Will and engaged McLaren as his attorney.

The County Court of Christian County admitted the Will to probate upon a hearing at which McLaren and one of the other attesting witnesses testified. In his final report the plaintiff asked to be credited with the sum of $1,500 paid to Homer D. McLaren for attorney’s fees. The appellants, herein referred to as defendants, who are incompetent beneficiaries under the Will acting through a guardian ad litem appointed in their behalf, filed an objection to the allowance of the fees paid to the attorney for the executor.

The County Court sustained defendants’ objection to the report and ordered the executor to restate his account. An appeal from this order was taken to the Circuit Court of Christian County resulting in the entry of an order overruling defendants’ objection and approving the final report of the executor. From the order of the Circuit Court this appeal has. been perfected.

It is the contention of defendants that by reason of the provisions of the Probate Act the attorney for the executor was not entitled to receive the fee paid to him by such executor.

Section 44 of the Probate Act (Par. 195, Chap. 3, Revised Statutes of Illinois 1953) provides as follows:

“If any beneficial devise, legacy, or interest is given in a will to a person attesting its execution or to his spouse, the devise, legacy, or interest is void as to that beneficiary and all persons claiming under him, unless the will is otherwise duly attested by a sufficient number of witnesses as provided by this Article exclusive of that person; and he may be compelled to testify as if the devise, legacy, or interest had not been given. But the beneficiary is entitled to receive so much of the devise, legacy, or interest given to him by the will as does not exceed the value of the share of the testator’s estate to which he would be entitled were the will not established.”

The reasonableness of the fee charged does not appear to be challenged. Accordingly, the sole question requiring decision on this appeal is whether an attorney, who is employed by the executor pursuant to a direction in a Will, is precluded from receiving compensation for services rendered to such executor.

Prior to the adoption of the Probate Act of 1939, the substance of the above provision was included in the Statute of Wills as Section 8 thereof (Sec. 8, Chap. 148, Illinois Revised Statutes 1933). In Scott v. O’Connor-Couch, 271 Ill. 395, the Supreme Court interpreted the meaning and effect of such section and said:

“In the revision of 1872 a provision of the Revised Statutes of 1845 was brought forward as section 8 of the Statute of Wills. It removed the incompetency of a witness to the execution of a will to whom any beneficial devise, legacy or interest was made or given by the will, and provided that such witness should be compellable to appear and give testimony on the residue of the will in like manner as if no such devise or bequest had been made, but the devise, legacy or interest was declared to be null and void unless the will had been duly attested by a sufficient number of witnesses exclusive of such person, saving, however, to the witness any share of the testator’s estate not exceeding the value of the devise or bequest to which the witness would have been entitled if the will was- not established. That section of the Statute of Wills .was regarded by this court as remedial and its purpose and effect were explained in Jones v. Grieser, 238 Ill. 183.”

In Jones v. Grieser, to which the Conrt referred in the Scott case, the Court states the purpose of the enactment of said Section 8 to be as follows:

“The section of the statute above referred to was passed solely with a view to prevent the destruction of a will which would otherwise be a valid will except that the will, as executed, contained some provision which made its establishment according to the forms of law necessary by the calling of witnesses who took some interest under the will. If the incompetency of the witnesses existed outside of the fact that the will gave them a beneficial interest in the testator’s estate, section 8 of the Wills act does not remove the incompetency of the witnesses to the will. If, however, the ineompetency of the witness arises by the act of attesting a will which gives the witness some interest in the testator’s estate, the statute does apply, and under that section of the statute, while the witness cannot take under the will, nevertheless he may be called and the will established by his evidence.

“The statute uses the words ‘devise, legacy or interest.’ The word ‘interest,’ therefore, must be given some force and effect, and, as applied to a case like this, it clearly designates the interest created in the attesting witness by his being named as executor in the will,— that is, the interest which the witness receives as executor. The courts, in construing a statute, should give force and effect to all the language of the statute.”

The above interpretation of this Statute was applied in the case of In re Estate of Cohen, 279 Ill. App. 605. In that case the Will contained a provision directing the executor to employ one Raymond Kelner as his attorney to assist in the administration of the estate. Kelner was also a witness to the execution of the Will. It was contended that Kelner by reason of the provisions of the Will directing his employment as attorney for the executor became a party in interest and as such was disqualified as a witness. The Appellate Court held Kelner to be a competent witness for the purpose of proving the execution of the Will. However, as to the consequences of so testifying, the Court had this to say:

“We gather from the record in the case before us that the testimony of Kelner was necessary to establish the will and that by testifying as a witness he would be precluded from receiving any financial remuneration thereunder. This inhibition placed upon Kelner by the statute would properly be enforceable in the probate court of Cook county.”

The same subject was considered by the Court in the recent case of In re Estate of Garner, 8 Ill.App.2d 41 and we find its views thereon expressed as follows:

“Mr. Galloway, one of the attesting witnesses, was by the terms of the will designated as attorney for the executor, and he appeared as attorney for the proponents of the will in the Probate Court. The defendants insist that he therefore should be disqualified as a witness. Mr. Galloway did not appear as attorney for the proponents of the will before the Circuit Court, and under the law he would not be disqualified as an attesting witness, but he would not be permitted to receive any financial remuneration by reason of the will. In re Estate of Cohen, 279 Ill. App. 605.”

The plaintiff here argues that since there were three witnesses to the Will, it was not necessary for McLaren to testify and that he only did so because one of the other two witnesses was ill and unable to be in court on the day of the hearing on the petition to admit the Will to probate. The fact remains, however, that McLaren did testify as a witness to the execution of the Will. Without his testimony there was lacking a sufficient number of witnesses to establish the Will as required by the Statute.

The plaintiff also contends that' an attorney named in a Will as attorney for the executor does not thereby receive such a beneficial interest as to bring him within the purview of Section 8 of the Probate Act since the executor might not employ such attorney. The word “interest” as employed in the above section, has been construed to include a contingent and uncertain interest which might accrue by virtue of compliance with a direction in the Will. Jones v. Grieser, supra. We think the Will in this case leaves no doubt as to the fact that an interest thereunder would accrue to McLaren if the testator’s wishes were followed.

Furthermore, the record in the instant case discloses that upon the death of the testator, McLaren without any apparent direction of the executor, summoned all of the beneficiaries under the Will to his office; that he read the Will to the beneficiaries; that on such occasion he attempted to have all of the beneficiaries sign an entry of appearance to the hearing on a petition to probate the Will; that later he discussed the subject of attorney’s fees with the executor and that at the beginning of the proceedings the executor paid him $1,500 to apply on his fees. Obviously, the attorney regarded the testator’s direction that he be the attorney for the executor as conferring upon him the right to act as such. In view of these circumstances we fail to perceive any marked aspect of uncertainty so far as the attorney’s interest under the Will is concerned.

For the reasons herein given, we are of the opinion that defendants’ objection to the final report should have been sustained and that plaintiff should have been required to restate the account. In ruling to the contrary the Circuit Court erred. Its judgment is therefore reversed and the cause remanded with directions to proceed in accordance with the views expressed herein.

Reversed and remanded.

REYNOLDS, P. J. and ROETH, J., concur.


author: JUSTICE BARDENS

text:
    Stahly Cartage Co., a Delaware Corporation with Principal Offices in Edwardsville, Illinois, Plaintiff-Appellant, v. Universal Mutual Casualty Company, a Mutual Insurance Corporation, Defendant-Appellee.
    Term No. 56-F-7.
    Fourth District.
    October 30, 1956.
    Released for publication October 30, 1956.
    Mudge and Mudge, of Edwardsville, for plaintiff-appellant.
    James L. Reed, and James H. Parsons, Jr., both of Edwardsville, for defendant-appellee.
   JUSTICE BARDENS

delivered the opinion of the court.

Plaintiff filed an action at law for recovery of a fire loss to a tractor under a policy issued by the defendant. The trial resulted in a verdict and judgment in plaintiff’s favor for $3,500 but, upon motion of the defendant, the court granted judgment notwithstanding the verdict in its favor.

Plaintiff, a contract carrier of petroleum products in bulk, owned a large fleet of trucks and tractors all of which were insured by defendant against loss by fire, theft, and wind. Some of the units were at various times sold by plaintiff on conditional sale to its senior drivers and leased back to the plaintiff. On these units plaintiff carried collision insurance as well as other coverage. Plaintiff and one Lewis W. Jones, an agent of the defendant company, both testified that prior to the issuance of any policy by the defendant the plaintiff explained to the agent that those units upon which collision coverage was carried were the units which had been sold under the conditional sales contract to the senior drivers, and Jones testified that he conveyed this information to the company. A previous policy had been issued in November 1951, for a period of one year and the particular tractor in question had been listed in that policy, but without collision coverage. In February of 1952 the company was notified that plaintiff desired collision coverage on this particular tractor and the amount of insurance on this tractor was increased and the collision coverage added by endorsement to the policy. When the policy came up for renewal in November of 1952 this tractor was then carried under a group all of which carried collision insurance. The policy sued upon is the policy which runs from November 1952 to November 1953. It lists over 90 units and divides them into groups. Groups one and four carried no collision insurance. Groups two and three all carried five hundred dollars deductible collision insurance. The tractor in question was listed under group three. The form of the policy was designated as an automobile policy and in the place for description of the property insured reference was made to the schedule attached. Certain provisions of the policy were listed under the general heading of “Exclusions.” Paragraph “H” of this group states that the policy does not apply to coverages “D,” “E,” “F,” “G,” “H,” “I,” and “J” while the automobile is subject to any bailment lease, conditional sale, mortgage or other encumbrance not specifically declared and described in this policy. Coverage “D” was the fire coverage. The tractor involved in this law suit was destroyed by fire during the policy term and it is conceded that it had been sold to a driver under a conditional sales contract in January of 1952 at the time that the endorsement was made on the previous policy adding collision coverage. Defendant disclaimed coverage, relying on the exclusion clause. Plaintiff maintains, on the other hand, that defendant waived the exclusion clause provision because it had knowledge of the sale and lease back arrangement prior to the issuance of the policy in question.

The trial court order granting defendant’s motion for judgment notwithstanding the verdict recited:

“There is not sufficient competent evidence in the record to sustain the verdict of the jury,” and “the admission of parole evidence for the purpose of showing that the parties intended to insure property excluded by the exclusions clause of the policy was reversible error.”

Questions relating to error committed by the lower court are argued on this appeal. Since no motion for new trial was filed, the only pertinent inquiry now is to determine whether there was sufficient evidence to sustain the verdict.

It appears from the evidence that the tractor in question was sold by plaintiff to one of its drivers by a conditional sale contract under which the driver is obligated to pay the plaintiff the full purchase price. No evidence was sought to be introduced to the effect that plaintiff cannot or will not receive the full price of this unit.

Under Illinois authorities no distinction is made between waiver or estoppel when applied to insurance cases. It is necessary for the one claiming waiver or estoppel to prove either fraud or injury. The Phenix Insurance Co. v. Grove, 215 Ill. 299; Durbin for Use of Ferdman v. Lord, 329 Ill. App. 333.

In this case the evidence fails to show that plaintiff is injured by the assertion of the exclusion clause on behalf of defendant. Therefore proof of injury or fraud is lacking. The judgment of the trial court notwithstanding the verdict was correct.

Judgment affirmed.

S CHEINEM AN, P. J. and CULBEETSON, J., concur.


author: PRESIDING JUSTICE BARDENS.

text:
    Charles Boeker, Conservator of Estate of Jerome Boeker, an Incompetent and Distracted Person, Plaintiff-Appellee, v. Marilyn Grigg, Formerly Marilyn Welker, Defendant-Appellant.
    Term No. 56-F-2.
    Fourth District.
    May 5, 1956.
    Rehearing denied October 25, 1956.
    Released for publication October 26, 1956.

      Raemer & Horn, and Robert M. Wash-burn, for defendant-appellant; Raymond O. Horn, of counsel; Wham & Wham, and Maurice B. Johnston, for plaintiff-appellee; James B. Wham, of counsel.
   Opinion by

PRESIDING JUSTICE BARDENS.

Not to be published in full.


author: PRESIDING JUSTICE DOYE.

text:
    William Aschtgen, and June A. Aschtgen, Plaintiffs-Appellees, v. Hyman Raffle, M. B. Raffle, and Aaron Raffle, d/b/a Triple Tite Construction Company, Defendants-Appellants.
    Gen. No. 10,956.
    Second District.
    October 3, 1956.
    Released for publication October 20, 1956.
    Cannariato & Nicolosi, for appellant; Sam J. Cannariato, of counsel; Russell J. Goldman, for appellee; Harold Stern, of counsel.
   Opinion by

PRESIDING JUSTICE DOYE.

Not to be published in full.


author: JUDGE ROETH.

text:
    People of State of Illinois, Plaintiff-Defendant in Error, v. Roy W. McConnell, Defendant-Plaintiff in Error.
    Gen. No. 10,059.
    Third District.
    October 16, 1956.
    Released for publication November 1, 1956.
    Francis R. Wiley, and Armin C. Baer, for plaintiff in error; Harrison J. MeCown, State’s Attorney, Douglas county, for defendant in error.
   Opinion by

JUDGE ROETH.

Not to be published in full.


author: JUDGE REYNOLDS.

text:
    Board of Education of Williamsville Community Unit School District No. 15 of Logan, Sangamon, and Menard Counties, Illinois, and Williamsville Community Unit School District No. 15 of Logan, Sangamon, and Menard Counties, Illinois, Petitioners-Appellants, v. Evans E. Brittin et al., Defendants-Appellees.
    Gen. No. 10,074.
    Third District.
    October 16, 1956.
    Rehearing denied November 5, 1956.
    Released for publication November 6, 1956.
    G. W. Horsley, and L. H. Lenz, for petitioners-appellants; Edwin' C. Mills, and Harris & Harris, for defendants-appellees.
   Opinion by

JUDGE REYNOLDS.

Not to be published in full.


author: JUSTICE EOVALDI

text:
    Anna Veselich, Administratrix of Estate of George Veselich, Deceased, and Anna Pozek, Administratrix of Estate of John Pozek, Deceased, Appellants, v. Le Noel Lichtsinn, and Louis Lieberman, Appellees.
    Gen. No. 10,927.
    Second District.
    July 5, 1956.
    Released for publication July 20, 1956.

      Corrigan & Mackay, of Wheaton, and Louis F. Cainkar, of Chicago, for appellants; William E. Corrigan, of counsel.
    Lord, Bissell & Brook, Robert L. Brody, and George J. Gore, all of Chicago, for appellees; Gordon R. Close, and Richard E. Mueller, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

This was an action to recover damages for the deaths of the plaintiffs’ intestates, they having been killed while crossing over Route 66 west of the Downers Grove — Lemont Road in Du Page county, Illinois. The case went to the jury upon the issues of negligence of both defendants as to the claim of Anna Yeselich, administratrix of the estate of George Veselich, deceased, and to the jury in reference to the claim of Anna Pozek, administratrix of the estate of John Pozek, deceased, as to the defendant Lichtsinn. The jury returned verdicts finding both defendants not guilty. Plaintiffs’ motion for new trial was denied and judgment entered on the verdicts.

The plaintiffs’ theory of the ease is that the overwhelming weight of the evidence supported their version of the accident, which was that the plaintiffs’ intestates were crossing Route 66 at a place that could be considered the crosswalk; that under either the plaintiffs’ or defendants’ version of the case, the questions of liability were very close and were for a properly instructed jury; that the court’s instructions gravely misinformed the jury; and that the court erred in denying plaintiffs’ aerial photographs.

Defendants’ theory is that the virtually undisputed evidence shows that the plaintiffs’ intestates were killed on a Sunday evening in October, while endeavoring to cross an arterial highway in the dark, in heavy traffic, seventy-five to one hundred twenty-five feet west of the intersection of Route 66 with Downers Grove Road, when they stepped back from the center of the highway into the path of defendant Lichtsinn’s automobile west bound on Route 66; that contrary to the plaintiffs’ contention, the facts were not close; that in addition, there was not a scintilla of evidence that the plaintiffs were crossing at a crosswalk or were in the exercise of due care and caution for their own safety; that not only were the fact questions of negligence and contributory negligence properly resolved by the jury, but as a matter of law the evidence supported a finding only for the defendants.

On Sunday, October 11,1953, shortly after 6:00 p. m., the decedents, John Pozek and George Veselich, attempted to cross Route 66 from the north shoulder to the south shoulder of the highway at a point seventy to one hundred twenty-five feet west of the intersection of Route 66 with Downers Grove Road. The decedents left John Pozek’s home, which was located approximately six hundred feet north of Route 66 on the west side of Downers Grove Road, in Pozek’s car to permit Yeselich to board the bus at Route 66 on Downers Grove Road, leaving Pozek’s home at. 6:12 or 6:13 p. m. The bus was due to arrive at the southwest corner of the intersection at 6:22 p. m., usually arriving at 6:25 p. m.

Pozek apparently drove his car to Route 66, turned north parking the car on the north side of Route 66 one hundred thirty to one hundred forty feet west of Downers Grove Road. Route 66 was heavily traveled at the time and Pozek and Yeselich apparently reached the center of the highway and waited for east-bound traffic to break in order to complete their crossing. The defendant Lichtsinn was driving his car in a westerly direction on Route 66 in the inner lane at fifty to sixty miles per hour, while the defendant Lieberman was driving in the. inner , lane in an easterly direction towards Chicago at about twenty to thirty miles per hour in heavy east-bound traffic. At the time of the occurrence the weather was clear and cool and it was dark. According to the testimony of Mr. Scudder, who was north bound ¡on Downers Grove Road, the traffic was so heavy on Route' 66 that he waited five to ten minutes for traffic on Route 66 to open so that he could cross the highway in his. vehicle. He testified that the accident happened between. 6'*15 and 6:30, and traffic from Downers Grove Road had to stop for traffic on Route 66. •

As the defendant Lichtsinn approached the point where Pozek. and Veselich were standing in the middle of the highway, he testified that they stepped back into the west-bound traffic lane into the path of his vehicle. He attempted to avoid the-jbeb, abd-failing to do so, struck them. Both men-were thrown, into the air, one being thrown into the east-bound labe of traffic in front of or under the car of. defendant;-Dr. Lieberman, who at the time had slowed his. vehicle. - Both men w;ere killed and the record is not clear as to which man was thrown into the path of Dr. Lieberman’s car.

Louis Lieberman, a dentist by profession, one of the defendants called as an adverse witness under Section 60 [Ill. Rev. Stats. 1953, ch. 110, § 184], stated that he was driving his 1951 Oldsmobile in an easterly direction towards Chicago at about twenty-five to thirty miles per hour and as he approached Downers Grove Road, he thought he saw a man to the left of him out of the corner of his eye. He admitted testifying at the coroner’s inquest that he said he must have been maybe two or three hundred feet from the intersection when this accident happened and it seemed to him that he saw a man in the center of the highway, a sort of tall man. To the best of his recollection, the man was standing seventy or eighty feet from the intersection and might have been moving a little bit; he was going about twenty miles per hour, or maybe a little less, -at the time he hit the man. He stated that his car was in the same position in reference to the center of the road at the time he came in contact with the man as it was when he first saw him, :and that he thought that the left front bumper came in contact with the man and that he believed his car passed over him.

The other defendant, Lichtsinn, was called as an adverse witness, and he testified that there were three individuals riding in the front seat of his car and two in the back; that as he approached Downers Grove Road he was traveling on the inside lane between fifty and fifty-five miles per hour and he was going about fifty to fifty-five miles per hour when he was fifty feet east of the intersection; he testified that the men were ten or fifteen yards in' front of him when lie first saw them. He recalled testifying at the coroner’s inquest, and lie did answer ten or fifteen or twenty feet away. He further testified that when he first saw them they were to the left of his car, directly in front, to his left; they were just across the double line in the traffic of the opposite direction and that the impact occurred when he turned his wheels to the right. He testified that the traffic moving in the opposite direction was heavy; that it was dark out, and the cars going' in the opposite direction had their lights on. He further testified that he was not good at estimating distances.

John Stokes testified for the plaintiffs that he was going west on Route 66 to his home in Peoria; that as he approached Downers G-rove Road about three blocks away, a vehicle passed his car when he was going somewhere around sixty miles per hour; that this was the same car that was involved in the accident; that this car was being driven on the inside lane and there were no other vehicles in front of witness’s vehicle on the inside lane and no cars in the visible distance ahead that were ahead of witness’s car. He did not see the actual impact but saw the bodies after the accident. He heard the impact and saw the men being propelled by the force of the car and one of the men was propelled back toward him; that he pulled up and stopped, and the closest body to the intersection was about eighty or ninety feet away; the other body was about sixty feet farther away west.

Howard Pamplin, a State Patrolman, testified for defendants that he arrived at the scene of the accident about 6:35; that traffic on Route 66 was very heavy in both directions at that time; that when he arrived at the scene he found another State Police Squad there which had been standing by until he arrived. He saw the bodies of the two persons who had been killed lying on the pavement. One of the bodies was lying approximately one hundred twenty-five feet west of Downers Grove Road and the other body approximately two hundred feet, they were about seventy-five feet apart; that he found a ear of one of the men who was killed, Mr. Pozek, parked on the north side of Route 66, west of the intersection, about one hundred thirty to one hundred forty feet from Downers Grove Road.

Jack Carlstrom, a Sergeant, employed by the Illinois State Highway Police, testified for defendants that he had occasion to investigate the accident and that the condition of the traffic was very heavy, this being a Sunday evening. The bodies of the two men were separated by about fifty to seventy-five feet. He checked defendant Lichtsinn’s car and the windshield on the left side was broken, and the headlight on the left side was broken off.

James F. Koback, testified for defendants that he was employed by the Winfield Construction Company and that in October 1953, he was a soldier in the United States Army, and that he was in a car with defendant Lichtsinn at the time of the accident; that he was in the back seat and that he was trying to catch a little nap and he did not actually see what happened before the accident took place. The first he had any notice or knowledge of the accident was when he felt the impact and the car swerved and came to a stop; that he saw the bodies of the two people that were killed before he got out of the car; that they were in back of them in the two opposite lanes going in the opposite direction south of the center line of Route 66; that there seemed to be sixty feet separating the bodies.

Robert Ladek testified for defendants that he was in the automobile being driven by defendant Lichtsinn and that the accident happened between 6:00 and 6:30; that he was in the front seat and that just before the accident lie was trying to get some sleep; that he had his head back on the seat and his eyes closed and he was just dozing off; that he first saw the glass fly from the windshield; that after he got ont of the car, the traffic was heavy and all the cars had their lights on; that he saw both bodies in the street and they were about twenty-five to thirty feet apart and that the body closest to Downers Grove Road was seventy-five or one hundred feet and the other body was twenty-five or thirty feet west of that one. On cross-examination he testified that he did not see any of the occurrence; that he heard the-glass crash and then the car swerved.

David Tierney testified for defendants that he was employed by the Rhode Island Railroad and that on October 11, 1953, he was in the army and was on his way back to Ft. Leonard Wood in the car being driven by defendant Lichtsinn. He testified that “As we approached Downers Grove Road we were going around 55 miles per hour. There were cars ahead of us but I don’t know how close we were to them. There was traffic on the outer lane. One car ahead of us I would say was maybe five or ten yards ahead. There were cars coming from behind but I don’t know how close. Traffic was heavy at the time. As we approached Downers Grove, we did pass some cars and they did pass us again.” He further testified that he first saw the two men when they were west of the intersection probably about thirty or forty yards and at that time they were just the other side of the yellow line in the east-bound traffic about one foot and they were crossing together and they seemed to be trying to get across the road. “They weren’t looking our way. They were looking the other way like they were getting ready to cross the road as soon as the traffic let up so they could get across and the next thing I knew they stepped back and were right in the headlights of our car. They stepped into our lane about one and a half feet and we hit the brakes and swerved to the right and there was the impact. We swerved just a little hit to the right more or less. We went np the road mayhe fifty yards west of Downers Grove Road. It was fifty yards when we pulled up and stopped off the road. The left windshield was smashed.” The witness testified that he got out of the car and the men were in the opposite lane of traffic. One was about in the center of the east-bound lane and one was a little closer to the shoulder about ten yards apart. The one nearest Downers Grove Road was roughly twenty yards west of the intersection. The one closest to the intersection was just a little bit toward the shoulder, in the outer lane of the east-bound traffic. The other was about in the center of the eastbound lane. On cross-examination he testified that he first saw the two men when they were approximately thirty or forty feet west of Downers Grove Road. He testified that he recalled giving testimony at the coroner’s inquest on October 12,1953, and that his recollection of the facts of the accident were clearer in his mind the day after than they were on the day he was testifying at the trial; that he did say at the coroner’s inquest, “We were going back to Ft. Leonard Wood on 66. We were on the outside lane nearest the yellow line, we just crossed the intersection, and I would say we were going about fifty milefe per hour. All of a sudden these men were out in the center of the road, it was very dark, I mean it was dark with no lights around there, it appeared to me to be a dark corner, because it was hard to see. The first I seen of them, they were five or ten yards in front of the car standing right in the center line, maybe just to the left of the center line, in the next lane, it seems to me, all of a sudden they stepped back right in the path of our car. As they stepped back, he put on his brakes and swerved to the left. He got it with the left side. We stopped right away and jumped out of the car”’

Robert H. Scudder testified for defendants that he lived at Downers Grove and was a mink rancher; that he witnessed the accident on October 11, 1953; that he was coming from his uncle’s farm in Indiana, and was on the south side of 66, sitting at the crossing going north toward Downers Grove; that his wife and young son were with Mm and as he was standing there, he noticed that the traffic on Route 66 was very heavy; that he was there between five and ten minutes; that there was one car beMnd Mm as he was standing there; that the west-bound traffic was very heavy also; that the first thing that brought his attention to the accident was when he heard the screech of brakes to the left of him, that is west; he then saw a body up in the air, a little off center on the right hand side of the Mghway. The accident was with a car on the inner lane headed west. That he did not see the man that was hit before he was hit; that he first saw him when he was up in the air; that he came down in front of a car going east; that he saw the man in the air about seventy-five to one hundred feet west of the intersection to the left. On cross-examination he stated that after the impact Dr. Lieberman slowed down and came around bim and parked in front; that he had his lights on; that the traffic going east was going between forty and fifty miles per hour; that the traffic going west was going at approximately the same speed.

We have gone into considerable detail in reviewing the evidence of the occurrence witnesses, inasmuch as plaintiffs contend that the manifest weight of the evidence establishes the fact of the defendants’ negligence and establishes the truth of the plaintiffs’ version of the accident. The jury saw and heard the witnesses. Where disputed questions of fact are presented to a jury and the jury passes upon them, unless palpably erroneous, the finding of fact will not be disturbed by the reviewing court. People v. Hanisch, 361 Ill. 465; Griggas v. Clauson, 6 Ill.App.2d 412; Krug v. Armour & Co., 335 Ill. App. 222; Becherer v. Belleville St. Louis Coach Co., 322 Ill. App. 37; Rembke v. Bieser, 289 Ill. App. 136; Leahy v. Morris, 289 Ill. App. 99. It is not the province of the court to substitute its judgment for the triers of fact, where there is a conflict in the evidence. Griggas v. Clauson, supra; Becherer v. Belleville-St. Louis Coach Co., supra; Martin v. Village of Patoka, 305 Ill. App. 51. It is the province of the jury alone, to determine the weight of evidence and the credibility of witnesses. Rembke v. Bieser, supra. To be against the “manifest weight of the evidence” requires that an opposite conclusion be clearly evident. Olin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, 147. We do not find that the verdict is manifestly against the weight of the testimony. Under these circumstances we have no right to set aside the jury’s findings.

Plaintiffs object to defendant Lichtsinn’s instruction No. 4 which is as follows:

“The rule requiring the plaintiffs to prove their case, by a preponderance or greater weight of the evidence, is a substantial rule of law binding upon the plaintiffs in this case, and you have no right, as jurors, to disregard such rule of law. It is your duty, as jurors, to enforce such rule of law in this case the same as each and every rule of law that the court gives to you in these instructions.”

Our Supreme Court had occasion to pass on a similar instruction in the case of Chicago Union Traction Co. v. Mee, 218 Ill. 9. In that case the lower court refused to give on behalf of the appellant’s instructions numbered 8 and 9, instruction No. 8 being as follows:

“The court instructs the jury that the burden of proof is not upon the defendants to show that they are not guilty of the specific negligence charged in the declaration, or in some count thereof, but the burden is upon the plaintiff to prove that the defendants are guilty, and also to prove that he himself was in the exercise of ordinary care for his own safety, and this rule as to the burden of proof is binding in law, and must govern the jury in .deciding this case. The jury have no right to disregard said rule or to adopt any other in lieu thereof, but in considering the evidence and coming to a verdict, the jury should adhere strictly to said rule.”

The Supreme Court held that it was error for the court to refuse to give said instructions 8 and 9, and reversed the judgments of the Appellate and Superior Courts.

Plaintiffs object to defendant Lichtsinn’s instruction No. 10, which reads as follows:

“You are instructed that the driver of an automobile is under no greater obligation to look out for and protect a pedestrian in a street at a place other than a crossing, than a pedestrian is under an obligation to look out for and protect himself. It is the duty of the pedestrian under such circumstances to keep on the lookout for automobiles approaching upon the proper and lawful side of the street and to exercise ordinary care to avoid any automobile or vehicle approaching.”

The above instruction is specifically limited to a place other than a crossing and requires the pedestrian crossing at such a point to exercise ordinary care to avoid any automobile. Chapter 95½, Section 172, Ill. Rev. Stat., 1953, provides that every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. We see no. error in the giving of this instruction.

Plaintiffs object to defendant Lichtsinn’s instruction No. 11 wbicb is as follows:

“If you find from a preponderance of tbe evidence that tbe defendant, Le Noel Lichtsinn, at and prior to the accident in question, acted as a reasonable and prudent person would bave done and acted under tbe circumstances and did nothing and omitted nothing wbicb a reasonable and prudent person would bave done or omitted under like circumstances, then tbe defendant, Le Noel Lichtsinn, is not guilty of negligence and you should find tbe defendant, Le Noel Lichtsinn, not guilty.”

In this connection plaintiffs’ instructions with respect to tbe conduct of tbe plaintiffs’ intestates should be noted. Plaintiffs’ instruction No. 1 contains tbe language “at such time and immediately before”; No. 10, “at tbe time of and prior to”; No. 11, “at and before tbe time of tbe occurrence”; Nos. 12 and 22, “then and there and prior thereto”; and No. 21, “at and before tbe happening.” Plaintiffs’ said instruction No. 12 instructed tbe jury that if it believed from a preponderance of tbe evidence, under tbe instructions of tbe court, that tbe plaintiffs bad proved that tbe defendant, Le Noel Lichtsinn, was guilty of negligence in one or more of tbe particulars as alleged in their complaint, and as defined in these instructions, and that such negligence, if any, proximately caused or proximately contributed to cause tbe injuries and deaths complained of in this cause, and that tbe decedents were then and there and prior thereto in tbe exercise of ordinary care for their own safety, then they should find tbe said Le Noel Lichtsinn guilty. Considering defendant Lichtsinn’s instruction No. 11 with tbe instructions given on behalf of tbe plaintiffs, we cannot see bow tbe rights of tbe plaintiffs were prejudiced in tbe giving of said instruction.

Plaintiffs object to the giving of defendant Lichtsinn’s instruction No. 12 which is in the following words:

“If you believe from the evidence under the instructions of the court that the decedents, or either of them, by using his faculties with ordinary or reasonable care in looking out for danger could have avoided the accident on the occasion in question, and that said decedents, or either of them, negligently failed to do so and thereby proximately contributed to the accident, then the decedent so failing to exercise reasonable care cannot recover in this case on the charge of negligence against the defendant Lichtsinn.”

Considering the facts as related in this opinion, we fail to see how this instruction prejudiced the rights of the plaintiffs in this case. The evidence showed that it was a Sunday evening in October; that it was dark; that cars had their lights on; that traffic was very heavy; and that despite these conditions, plaintiffs’ intestates endeavored to cross an arterial highway at a point seventy to one hundred twenty-five feet west of the intersection with the Downers Grove Road. A circumstance tending to show that plaintiffs’ intestates were not crossing at an intersection, is the fact that their car was parked a considerable distance west of the intersection. And further, considering the testimony of the witnesses as to where they stated plaintiffs’ intestates were struck, there is no evidence in the record to substantiate plaintiffs’ contentions that their intestates were crossing at a crosswalk. The above instruction was approved in Flynn v. Chicago City Ry. Co., 250 Ill. 460, 480, where the court held that the refusal to give same constituted reversible error.

Objection is made by plaintiffs to other instructions given on behalf of the defendants, and especially Lichtsinn’s instruction No. 14, as follows:

“Respecting the claim against the defendant, Lichtsinn, based upon a charge of negligence, if you believe from the evidence that the plaintiffs, or either of them, and the defendant, Le Noel Lichtsinn, were guilty of negligence which proximately contributed to the injury or damage complained of, then you are instructed that you have no right to compare the negligence of the plaintiffs, or either of them, if any, with that of the defendant, Le Noel Lichtsinn, if any, and find a verdict according to which side you think was guilty of the greater degree of negligence, for in such case it is the law that it makes no difference which was guilty of the greater degree of negligence. Under such circumstances, the plaintiff, or plaintiffs, so guilty of negligence cannot recover.”

Plaintiffs state that the record in this case clearly shows that the plaintiff, Anna Veselich, as administratrix of the estate of George Veselich, deceased, knew nothing about the accident until 8:30 p. m. on the evening of October 11, and that plaintiff, Anna Pozek, administratrix of the estate of John Pozek, deceased, was at home when the accident occurred; and that said plaintiffs under those circumstances could not be guilty of contributory negligence, and therefore it was error to give this instruction. It is well established that in ascertaining whether the jury were misled by an instruction, other instructions should be considered, McFarlane v. Chicago City Ry. Co., 288 Ill. 476, 483, 484; and that an instruction should be construed in the light of what an ordinary person would understand by it, Graham v. Dressen, 292 Ill. App. 15, 27; Kavanaugh v. Washburn, 320 Ill. App. 250. There can be no question that due to inadvertence, defendant Lichtsinn’s said instruction No. 14 omitted the words, “intestates” after the word “plaintiffs” in this instruction. Under the facts in this case, however, the jury could not have been misled by such inadvertence. This was the only instruction where such an omission occurred. The words, “plaintiffs’ intestates” or “decedents” were properly included in plaintiffs’ instructions Nos. 1, 10, 11, 12, 21 and 22, in defendant Lichtsinn’s instructions Nos. 9a, 12 and 13, and in defendant Lieberman’s instructions Nos. 3, 11 and 16. When the entire series of instructions is read, we cannot see how the jury was misled by this mistake. As was said in Moore v. Bethel, 4 Ill.App.2d 270, 278:

“Nor do we find grounds for new trial in any of the alleged erroneous instructions. The error, if any, is completely technical and not of such nature as would necessarily mislead the jury or assume the dignity of reversible error.”

To try and treat each one of the other instructions separately would unduly lengthen this opinion. We think as a whole, taking all the instructions given, that the jury was properly instructed as to the law of the case.

Plaintiffs contend that the court erred in failing to admit in evidence the aerial photographs, Plaintiffs’ Joint Exhibits Nos. 3, 4, 5 and 6, purporting to show the condition of the intersection as it existed in October of 1953. All of the parties cite and rely on the case of Department of Public Works & Buildings v. Chicago Title & Trust Co., 408 Ill. 41. Plaintiffs admit that the admission of the aerial photographs of the intersection is a matter within the trial court’s discretion. It is to be noted in this connection that the trial court did admit into evidence seven ground level photographs of the intersection (Plaintiffs’ Joint Exhibits 7-13), and three plats of the intersection (Plaintiffs’ Joint Exhibits 14-16). The plat of the intersection, Plaintiffs’ Joint Exhibit 14, performed the same function as the aerial photographs and the ground level photographs. Plaintiffs’ Joint Exhibits 7 to 13, inclusive, showed the jury the intersection as it appeared to each of the parties at the time of the accident. Thus, it is clear that there was ample documentary evidence in the record, plus the testimony of the various witnesses, to give the jury a proper perspective of where and how the accident took place. The trial judge was in a better position to judge the necessity of the aerial photographs as demonstrative evidence. We do not think that the trial court abused its discretion in refusing to admit the aerial photographs into evidence.

Finding no material error in the record, the judgment of the circuit court will be affirmed.

Judgment affirmed. .

DOVE, P. J. and CROW, J., concur.


author: PRESIDING JUSTICE DOVE

text:
    Irene H. Ekstrom, and Edward W. Warner, Executors of Estate of John R. Ekstrom, Deceased, and Irene H. Ekstrom, Individually, Plaintiffs-Appellants, v. Otto Kanies, Defendant-Appellee.
    Gen. No. 10,899.
    Second District.
    July 9, 1956.
    Released for publication July 25, 1956.

      KnigM, Ingrassia & Bourland, of Rockford, and Lowell B. Smith, of Sycamore, for appellants; Stanley J. Roszkowski, of Rockford, of counsel.
    Burrell & Holtan, of Freeport, and Wilson & Carnahan, of Sycamore, for appellee; David M. Burrell, of Freeport, of counsel.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

This is an action by Irene H. Ekstrom and by the executors of the Estate of John R. Ekstrom against Otto Kanies to recover damages for the alleged wrongful death of John R. Ekstrom and to recover for injuries sustained by Irene H. Ekstrom as a result of an automobile collision on April 11, 1954, on Highway 72 almost three miles east of Genoa, Illinois. The complaint was filed June 2, 1954. The defendant answered denying the charges of negligence and wilful and wanton misconduct and filed a counterclaim against the executors of the John R. Ekstrom estate. Prior to the trial, on motion of counterclaimant, the counterclaim was dismissed and the issues made by the complaint and answer were submitted to a jury for determination. At the conclusion of all the testimony the plaintiffs withdrew the wilful and wanton counts of the complaint and the jury returned verdicts finding the issues for the defendant. Appropriate final judgments were rendered on these verdicts on March 16, 1955. On March 25,1955, a motion on behalf of both plaintiffs was filed to set aside the verdicts, vacate the judgments entered and grant a new trial. Thereafter, leave was granted plaintiffs to file an amendment to said motion for a new trial and the amendment was filed on May 27,1955.

The record further shows that on July 5, 1955, the amended motion of the plaintiffs for a new trial was denied and on July 11,1955, a notice of appeal was duly filed by the plaintiffs. On July 20, 1955, a stipulation was filed to the effect that the original report of trial proceedings could be used in the record on appeal instead of a copy thereof. On the same day, July 20,1955, plaintiffs filed their praecipe for a transcript of the record in this cause, enumerating to be included therein, all pleadings, motions, orders, stipulations, judgments and the “report of proceedings at the trial, duly certified by the trial judge.” Thereafter and on August 4, 1955, a report of trial proceedings, bearing the certificate of the official court reporter, was presented to the trial judge, who certified to the same erroneously, dating his certificate “July 4, 1955” instead of August 4,1955. On the same day this report of trial proceedings was left with the clerk of the circuit court, who neglected to note thereon the filing thereof in his office. The clerk, however, incorporated this report in the record on appeal and on the same day, August 4,1955, certified that said record was a true, perfect and complete transcript of the entire record in this case, “including therein the original report of proceedings” in this cause. On August 4 or 5, 1955, this record on appeal, so certified, was taken from the office of the circuit clerk by counsel for appellants for the purpose of preparing an abstract.

On August 11, 1955, one of appellants’ counsel requested his co-counsel to obtain from the court an order extending the time in which to file the report of trial proceedings. Co-counsel did so and on August 11, 1955, a stipulation was presented to the trial court and, in accordance with that stipulation, an order was entered extending the time in which to file a report of trial proceedings forty-five days from and after August 30,1955.

The record on appeal, certified to by the clerk on August 4, 1955, was never returned to the office of the circuit clerk, but was filed in this court by counsel for appellants on September 22,1955, who filed herein their abstract of record and brief and argument on October 21,1955. None of the proceedings had in the trial court, following August 4, 1955, appear in the record on appeal, nor are those proceedings abstracted. They are brought to the attention of the court by a motion filed by appellee on October 26, 1955, to dismiss the appeal and by suggestions of counsel for appellants in opposition thereto and by a cross-motion of appellants requesting this court to enter an order directing the clerk of this court to return the record in this case to the clerk of the Circuit Court of De Kalb county in order, first, that “the date of the report of trial proceedings be corrected”; second, to further correct the record by including therein the stipulation of counsel dated August 11, 1955; third, to insert in the record the order of the circuit court, entered August 16,1955, extending the time for filing a report of trial proceedings forty-five days from August 30, 1955. By this cross-motion, appellants also ask leave to file herein on some day to be fixed by the court, an additional abstract of record showing the foregoing corrections and additions and for leave to resubmit the report of trial proceedings to the trial judge “for further certification of the record as corrected and amended.”

There is no necessity to grant the prayer of the cross-motion and direct the return of the record to the circuit clerk. What occurred in the preparation of this cause for appeal fully appears from the verified motion of appellee and the verified cross-motion of appellants. There is no dispute as to what happened. The report of trial proceedings was presented to the trial judge on August 4, 1955, not July 4, 1955, and his certificate thereto was signed that day. Immediately thereafter it was lodged in the office of the circuit clerk and inadvertently not marked filed. In Roesch-Zeller, Inc. v. Hollembeak, 5 Ill.App.2d 94, the Appellate Court of the Third District refused to strike the report of proceedings at the trial from the record on appeal and refused to dismiss the appeal because the report of proceedings did not show the date it was filed in the office of the circuit clerk. In that case, the report of proceedings was signed by the trial judge on March 5, 1954, and delivered to the circuit clerk, but the clerk failed to mark it filed. The last day for filing such report with the clerk was March 24, 1954, and the clerk incorporated the report in the record on appeal and certified to it on March 17, 1954, and the record on appeal was filed with the clerk of the Appellate Court on March 22, 1954, which was two days before the last day on which the report of the proceedings at the trial could be filed in the office of the clerk of the trial court. The court held that the duty to file the report of proceedings, when presented, was a ministerial act, treated it as properly filed, and disposed of the case on its merits.

In the instant case we will treat the report of proceedings at the trial as filed when lodged with the clerk of the circuit court, which was August 4, 1955, and so treating it, Rule I of this court requires a dismissal of the appeal, inasmuch as the last day for filing the record on appeal in this court was September 9, 1955, and the record on appeal was not filed in this court until September 22,1955.

The only explanation offered in connection with the order dated August 16, 1955, extending the time for filing the report of trial proceedings forty-five days from August 30, 1955, is that additional time was required in order to prepare an abstract of the record,

It is singular that at the very time this order was entered, the complete report of trial proceedings had already been certified to by the presiding judge and lodged with the clerk of the circuit court and the entire record on appeal, in which was incorporated the original report of trial proceedings certified to by both the official court reporter and trial judge, had already been certified to by the clerk of the circuit court, was in the possession of counsel for appellants and had been since August 4 or 5, 1955.

In explanation of why counsel for appellee stipulated that the extension order could be entered, it appears that they had no knowledge that the report of trial proceedings had been completed by the court reporter, had no knowledge that it had ever been presented to the trial court for certification, or that it had already been certified, and never had an opportunity to examine it until they did so after it had been incorporated in the record on appeal and filed in this court.

Under the authorities and the facts in this cause, the report of trial proceedings was filed by the clerk on August 4, 1955, when it was lodged in his office. If, however, it was not filed then, it never has been filed, because the record on appeal, in which the report of trial proceedings was incorporated, left the office of the clerk of the circuit court on either August 4 or 5, 1955, and has never been returned and is now in the possession of this court in the same condition it was when it left the office of the circuit clerk, having been certified to by him on August 4, 1955.

For failure to comply with Eule I of this court in not filing the record on appeal within the time prescribed, this appeal must be dismissed.

Appeal dismissed.

CEOW and EOVALDI, JJ., concur.


author: JUDGE LEWE

text:
    Mozelle Selby, Executrix of Estate of Morris O. Selby, Appellee, v. Chesapeake and Ohio Railway Co., Appellant.
    Gen. No. 46,826.
    First District, Third Division.
    September 26, 1956.
    Rehearing denied November 7, 1956.
    Released for publication November 8, 1956.

      Erwin W. Eoemer, of Chicago, for appellant; Erwin W. Eoemer, and Joseph P. Carr, both of Chicago, of counsel.
    Henslee, Monek & Murray, of Chicago, for appellee; Walter N. Murray, and John J. Naughton, both of Chicago, of counsel.
   JUDGE LEWE

delivered the opinion of the court.

This is an action under the Federal Employer’s Liability Act (45 U.S.C.A. § 51) and the Safety Appliance and Equipment Act (45 U.S.C.A. § 11) for injuries to, and the subsequent death of Morris C. Selby, defendant’s brakeman, alleged to have resulted from the failure of a hand brake to work efficiently. There was a verdict and judgment in plaintiff’s favor for $25,000. Defendant appeals.

Plaintiff’s decedent, Morris Selby, was injured on June 19, 1950 while engaged in riding cars off the hump in defendant’s yards at Stevens, Kentucky. On that day freight cars were being taken from Yard 3 and shoved eastward over the hump to Yard 4 which was the distributing or “outgoing yard.” This yard had 12 tracks. Located in the center of these tracks was a motor track used by a motor car which transported brakemen back to the apex of the hump. North of the motor car track were tracks numbered 7, 8, 9,10, 11 and 12; the other tracks numbered 1 to 6 were located south of the motor track.

Shortly before he received the injury here complained of, Selby boarded the east end of two cars moving eastward on track 9 in Yard 4 at a point east of the apex of the hump. Track 9 in Yard 4 was used for cars going to the repair shop.

The hand brake in question consisted of a hand wheel and a shaft extending approximately two feet above the roof of the car. On the top of the car there is a ratchet wheel engaging a pawl. In order to operate the hand brake, the pawl must be disengaged by the brakeman’s foot so that the brake wheel and shaft can be turned by hand. While the pawl is thus disengaged, a brake club, about 20 to 24 inches in length, is inserted through the spokes of the wheel and braced against the shaft. Pressure on the brakes is exerted by the brakeman pushing the brake club with his left hand and simultaneously pulling at the wheel with his right hand.

Plaintiff produced no eyewitnesses to the alleged occurrence. Three witnesses testifying in behalf of defendant said that -they saw Selby make the particular ride at various points between the hump and where the cars were stopped on track 9. Defendant’s witness Keating testified that from his position 600 feet away he saw Selby from the back bring the cars to a stop, dismount and walk from the cars to the motor car track. The only unusual fact he observed was that Selby stopped the cars just after they entered track 9. The general practice was for the brakemen to ride the ears well onto the track, leaving sufficient clearance for cars that might later be humped onto the same track.

Defendant’s witness Moenning testified lie saw Selby operating the brake as the ears came onto track 9. These cars were not, as normally done, ridden np to a car which had been previously switched to track 9, but instead, Selby stopped the cars short of this third car. The third defense witness who saw Selby ride the cars said that Selby dismounted and “looked” at the cars after they had been brought to a stop.

The evidence shows that after bringing the cars to a stop, Selby went over to the motor car track for a return ride to the hump, and that since the motor car was crowded, he stood on the running board, holding onto grab irons on either side. Plaintiff’s witness Coates testified that after the motor car had moved a short distance, he noticed Selby “. . . just sort of roll over sideways . . . and then I noticed there was something wrong.” Coates held Selby so that the latter would not fall from the motor car. Coates did not observe any markings on Selby who was wearing a cap and an overall jacket at the time. Selby “pushed up” his glasses but Coates did not see if the glass was broken. Coates also testified that though there was much noise he heard Selby mumbling something that sounded like “bad brake.” Other witnesses said that after Selby’s removal from the motor car they noticed that there was blood trickling from his mouth. When the motor car stopped, Selby, unconscious, was placed on a stretcher to be taken to the hospital. While on the stretcher Selby rallied somewhat, raised up, and asked what had happened.

About noon on the day of these occurrences, Selby was visited by his wife and daughter at the hospital. They testified he had a red swollen spot on the left side of his head, that his glasses were broken and bent, and that his leg and arm had “marks” on them.

As grounds for reversal, defendant urges that there was failure of proof that the hand brake was defective or failed to function efficiently; that there was a failure to prove causal connection between the accident and an inefficient hand brake; and that plaintiff failed to prove a causal connection between injury or death and an inefficient hand brake. Defendant insists that the court erred in denying its motion for a judgment notwithstanding the verdict.

Selby’s medical history was complex. He suffered a mishap in 1939, when he injured his leg and back. In 1942, he was injured when he fell from a moving engine and struck his head. In 1949, Selby again struck his head while at work. About two hours after the 1949 incident, Selby struck his head a second time at his home. After both the 1942 and 1949 occurrences, Selby had a convulsive attack, the cause of which' was undetermined. He was returned to work after each of these incidents.

After the occurrence in question, in 1950, Selby experienced seizures four or five times a week, described as Jacksonian in nature, indicating the cause to be a lesion or tumor of the left side of the brain. These seizures produced headaches, vomiting and a weakness to the right side of the body. Selby consulted several doctors after the 1950 accident concerning both the seizures and the back condition. An osteopath diagnosed the back condition as a sacroiliac strain. In April 1954 Selby had an operation in which a slowly growing malignant tumor on the left side of his brain was partially removed. There was evidence tending to prove that total removal would have hastened Selby’s death. Selby died December 28,1954 after having been employed by defendant about 27 years.

Under the named federal statutes, this court is bound to apply federal rules rather than state rules of law. Uniformity is an object of this legislation. (Brady v. Southern Ry. Co., 320 U. S. 476; Virgil v. New York, C. & St. L. R. Co., 347 Ill. App. 281.) Decisions concerning inefficient hand brakes recognize two methods of showing a railroad’s liability. All that need be proved is either a specific defect in the brake, or a normal, ordinary operation by the brakeman and a failure of the brake to function efficiently. Negligence need not be proved. (Myers v. Reading Co., 331 U. S. 477; Didinger v. Pennsylvania R. Co., 39 F.2d 798.) This proof, of course, can be made by either direct or by circumstantial evidence.

In Myers v. Reading Co., 331 U. S. 477, the plaintiff sued for injuries received from a faulty hand brake. The plaintiff testified that the brake chain was loose after the brakes had once been set, and when he tried to set the brake the second time it was “stiff.” While plaintiff attempted to set the brake and had his hand on the brake wheel, the brake kicked back, throwing him to the ground. The jury found plaintiff’s injuries were caused by an inefficient hand brake. The district court granted the defendant’s motion for judgment notwithstanding the verdict.

Reversing the district court, the Supreme Court said at pages 482-483 that,

“A railroad subject to the Safety Appliance Acts may be found liable if the jury reasonably can infer from the evidence merely that the hand brake which caused the injuries was on a car which the railroad was then using on its line, in interstate commerce, and that the brake was not an ‘efficient’ hand brake.”

As to requisite proof, the court continuing in the Myers case said at page 483,

“ ‘Proof of an actual break or visible defect in a coupling appliance is not a prerequisite to a finding that the statute has been violated. Where a jury finds that there is a violation, it will be sustained, if there is proof that the mechanism failed to work efficiently and properly even though it worked efficiently both before and after the occasion in question. The test in fact is-the performance of the appliance’ . . . Spotts v. Baltimore & O. R. Co., [102 F.2d 160, 162].”

The Myers ease does not purport to establish a minimum standard for probative facts upon which liability can he predicated.

In analogous areas, other decisions indicate predication of liability on proof of a lessor quantum of probative evidence than is present in Myers v. Reading Co., supra. In Lavender v. Kurn, 327 U. S. 645, as here, there were no eyewitnesses. The circumstances in that ease showed that the train had a mail hook on one of its cars capable of swinging horizontally when the train rounded a curve, and that decedent’s position would have placed him where the mail hook could possibly have struck him on the head. Plaintiff theorized that decedent was struck by the swinging hook. In concluding that the facts were sufficient to require the issues to go to the jury, the court said at page 653:

“It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to he the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.”

The recent case of Schulz v. Pennsylvania R. Co., 350 U. S. 523, also presented the question whether the evidence in an action under the Jones Act was sufficient to warrant submitting the issues to the jury. There the district court directed a verdict for the defendant. Plaintiff’s decedent worked for defendant tending tng boats that were moored at a Jersey City dock. On the night that decedent disappeared while at work, he had been seen checking the tugs. He went to one of the tugs to change his clothes. Later that night it was discovered that the decedent was missing. His lunch and some of his clothes were found on the tug where he usually changed clothes. Several weeks later, his partially clothed body was found in the water with a flashlight clutched in his hand. Death had been caused by drowning. Because it had been cold that night, and there had been little lighting on the tugs, it was the plaintiff’s theory that decedent had slipped on ice in the dark while performing his duties, fell into the water and drowned.

The court speaking of the constitutional right to a jury trial said at page 526:

“For ‘The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.’ Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.”

To the same effect see Eglsaer v. Scandrett, 151 F.2d 562, where plaintiff’s decedent was an engineer on defendant’s railroad. While the train was stopped, decedent went out on the engine’s cat-walk to fix a faulty automatic bell ringer. The fireman continued to stoke the fire, creating a great amount of steam so that the engineer was lost from the fireman’s view. When the brakeman signalled for the train to start, the fireman called to the decedent but got no response. He found decedent lying on the ground alongside the engine, immediately beneath the automatic bell ringer. The engine was dirty with coal dust. Also, there was a clond of steam from the boiler. A loose rope of the kind used on the manual bell ringing apparatus was found lying alongside the hand rail adjacent to the bell ringer. A smudged heel mark was found on the engine cat-walk. No one saw the engineer fall.

The district court granted defendant’s motion for judgment notwithstanding the verdict on the ground that no causal connection between defendant’s negligence and decedent’s death had been established. On appeal the Court of Appeals in reversing the district court held that the evidence did give rise to a reasonable inference that there was a causal connection, since the decedent might have grabbed the loose rope and lost his footing, thus being thrown to the ground.

In the instant case the defendant had no official records of the condition of the hand brakes on the cars Selby rode. There was testimony that the type of brake here involved has been known to kick back unexpectedly. After the injury, the cars involved were found standing with their brakes set where Selby had descended from them. Defendant’s witness Rice testified that he inspected the cars and that they had bad order tickets on them, ordering only the repair of a worn “E” knuckle and the air brakes. These cars had been in service for at least 16 years.

Defendant suggests that it would be impossible for the brake club to have struck Selby in the head even if the brake had kicked out. We think that the description of the operation of the hand brake given by the witness Moenning could account for the head injury to Selby. Moenning testified that Selby was “bent over in a position so that he could operate that brake with good force.”

From a careful examination of the record, we think that the jury could reasonably find that the hand brake did not function efficiently by kicking back, causing the brake club, which was inserted between the brake wheel spokes, to strike decedent on the head.

Defendant has cited decisions denying recovery (Woods v. New York, C. & St. L. R. Co., 339 Ill. App. 132, where the only evidence of a defective hand brake was that the car was at two different times in two different positions; Carter v. Peoria & P. U. Ry. Co., 286 Ill. App. 532, where verdict for plaintiff was reversed as being against the manifest weight of the evidence; Nealis v. Chicago, R. I. & P. Ry. Co., 173 Minn. 587, 218 N. W. 125, and Staton v. Virginian Ry. Co., 119 W. Va. 658, 195 S. E. 601, where there was a failure to show causal connection). These authorities, we think, can be readily distinguished from the instant case.

In the case at bar the fact that the cars were found standing with their .brakes set where Selby had left them does not necessarily tend to prove that the hand brake was not inefficient. (See Donnelly v. Pennsylvania R. Co., 342 Ill. App. 556, aff’d 412 Ill. 115; Welch v. New York, C. & St. L. R. Co., 5 Ill.App.2d 568.)

Defendant further contends that the words “bad brake” uttered by decedent shortly after his collapse should be construed as “bad break.” The construction of these words when considered in the light of the .other facts and circumstances shown by the evidence, we think, presented an issue of fact for the jury to ■determine.

Defendant maintains that there was no proof that the alleged accident caused the injuries and death. In particular, it attacks the form of the hypothetical question and the evidentiary basis for the finding of causal connection. To show causal connection, plaintiff’s counsel asked his expert witness, Dr. Conley, a hypothetical question assuming all the facts of the case in the following words:

“. . . have you an opinion based upon a reasonable degree of medical certainty as to whether or not there might or could be a causal connection between the accident of June 19, 1950, and the subsequent condition of ill-being of the hypothetical person?”

Dr. Conley answered:

“There could be, might be a causal connection between the condition of the ill-being and the head injury.”

Defendant introduced contrary expert testimony. Defendant says that the answer of plaintiff’s witness could only be based upon conjecture. We disagree.

In our view the hypothetical question and the answer raised an issue of fact. The form of the question and answer is proper. (Kimbrough v. Chicago C. Ry. Co., 272 Ill. 71, 77. To the same effect see Sourian v. Jones, 350 Ill. App. 365.) That other courts require a more positive form of statement (see Fort Worth & Denver C. Ry. Co. v. Smith, 206 F.2d 667; Saaf v. Duluth Police Pension Relief Ass’n, 240 Minn. 60, 59 N.W.2d 883) cannot control here. Nor does Kanne v. Metropolitan Life Ins. Co., 310 Ill. App. 524, contradict our holding here, for in that case the court found no facts in the record showing that decedent even suffered from the disease to which the expert hypothetically attributed his death. In the case before us, there is proof that Selby’s injury could have caused his death.

Defendant says that the case was not submitted to the jury on the theory that the mishap in 1950 could have caused the tumor from which Selby died nor on the theory of aggravation of the tumor. Defendant’s position we think is untenable for the reason that plaintiff’s expert, Dr. Conley, said the 1950 incident could have caused Selby’s “ill-being.” Moreover, on cross examination, Dr. Conley clarified his answer by stating that in his opinion the 1950 incident did not cause the tumor from which Selby ultimately died. However, the doctor reasserted that the incident in 1950, as indicated by an increase in the frequency of seizures, contributed to Selby’s ill-being. From this testimony, the jury could find that the 1950 injury aggravated the tumor, increased its malignancy, produced the seizures experienced by Selby, and ultimately contributed to his death.

At the defendant’s request, the court gave the following instruction which reads:

“Plaintiff cannot recover in this case if such alleged injuries and disabilities were the result solely of the earlier accidents of 1939, 1942, or 1949; nor can plaintiff recover if you are in doubt or unable to say whether or not the said alleged injuries or disabilities were caused by the alleged accident of June 19, 1950, or the said earlier accidents of 1939, 1942, or 1949.”

In view of the language of this pre-emptory instruction, we think there can be no doubt that the jury in arriving at its verdict believed that there was a causal connection between Selby’s mishap in 1950 and his “alleged injuries and disabilities.”

The law now seems well established that in cases arising under the Federal Employer’s Liability Act that if negligence has a causal relation or if the injury or death resulted in part from defendant’s negligence, there is liability. (Dowler v. N. Y., C. & St. L. R., 5 Ill.2d 125; Wawryszyn v. Illinois Cent. R. Co., 10 Ill.App.2d 394.)

For the reasons stated, the judgment for plaintiff is affirmed.

Judgment affirmed.

FEINBERG, P. J. and KILEY, J., concur.