text:
    People of the State of Illinois, Plaintiff-Appellee, v. Emil Bratu, Defendant-Appellant.
    Gen. No. 54,567.
    First District, Third Division.
    March 19, 1970.

      George B. Collins and Jeffrey Schulman, of Chicago, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Springfield (James B. Zagel, Assistant Attorney General, Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, Elmer C. Kissane, and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Emil Bratu, was indicted for the unlawful sale and the unlawful dispensing of narcotic drugs in violation of Ill Rev Stats 1967, c 38, § 22-3. Bratu pied guilty and was sentenced to the penitentiary for concurrent terms of not less than ten years nor more than ten years and one day.

The defendant raises the following contentions on appeal: the trial court failed to determine if his guilty plea was voluntarily entered; he was not fully informed as to the consequences of his plea, and the penalty provisions of the Narcotics Control Act (Ill Rev Stats 1967, c 38, Art 22) are unconstitutional because the title of the Act contains no reference to penalties.

When the defendant’s case was called for trial the following colloquy occurred:

Defense Counsel: “Your Honor . . . the defendant has been informed of his rights and he wishes to enter a plea of guilty to both charges.”
The Court: “Mr. Bratu, your counsel has advised me that you wish to change your pleas of not guilty to pleas of guilty, is this correct?”
The Defendant: “Yes, sir.”
The Court: “When you plead guilty, you automatically waive your right to a jury trial, do you understand that?”
The Defendant: “Yes, sir.”
The Court: “Before accepting your pleas of guilty, it is my duty to advise you that on your pleas of guilty to these indictments, one of which charges you with the unlawful sale of narcotic drugs, and the other with dispensing narcotic drugs, you may be sentenced to the penitentiary for a term of years, it may be any number of years not less than ten years. Knowing that, do you still persist in your pleas of guilty?”
The Defendant: “Yes, sir.”

The defendant contends that the trial court failed to determine if he was voluntarily pleading guilty. He argues that it was the court’s obligation to ascertain by affirmative inquiry whether or not any element of coercion brought about his guilty plea. The record shows that Bratu had consulted with his attorney, had been informed of his rights, and had told his attorney that he desired to enter a guilty plea. His counsel so informed the court and he confirmed what his counsel said. The trial court explained that by pleading guilty he would be waiving his right to a jury trial; Bratu said that he understood this. The court then described the nature of the charges pending against him and the sentences possible under his guilty plea. After Bratu persisted in his plea of guilty the court accepted his pleas to both charges. The admonitions of the court adequately and properly advised the defendant of his rights and his responses and the statement of his attorney enabled the court to determine that he understandingly and voluntarily entered his plea of guilty.

The defendant argues that the court’s admonitions did not fully apprise him of the consequences of his guilty plea. A guilty plea may be accepted when the court “has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon the acceptance of such plea.” Ill Rev Stats 1967, c 38, § 115-2 (a) (2). The trial court advised Bratu that he could be “sentenced to the penitentiary for a term of years, it may be any number of years not less than ten years.” Bratu contends that this failed to inform him that he could be sentenced for “any term from 10 years to life” as provided by Ill Rev Stats 1967, c 38, § 22-40 or to consecutive, rather than concurrent, sentences. The court’s admonition was sufficient. Cf. People v. Scott, 43 Ill2d 135, 251 NE2d 190 (1969).

There was no need for the court to set forth every possible combination of sentences that could be imposed under the statute. The court informed the defendant that he could receive “no less than ten years,” thus setting the minimum, and that he could receive “any number of years,” thus setting the maximum. Nor was Bratu prejudiced by the court’s failure to mention that he might be sentenced to consecutive terms. He received the smallest sentence possible under the statute, ten years to ten years and a day on each charge, to be served concurrently.

The defendant did not question the constitutionality of the penalty provisions of the Narcotics Control Act in the trial court. The question of the constitutionality of a statute is properly preserved for review only when it has been raised in and passed upon by the trial court. People v. Luckey, 42 Ill2d 115, 245 NE2d 769 (1969); People v. Orr, 10 Ill2d 95, 139 NE2d 212 (1956). The constitutional question, therefore, is not renewable. The Supreme Court is of the same opinion. This case, which was appealed to that court, was transferred here for lack of jurisdiction.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ABRAHAMSON.

license: Public Domain

text:
    Appliance Buyers Credit Corporation, Plaintiff-Appellee, v. Park State Bank, Defendant-Appellant. Park State Bank, Third-Party Plaintiff-Appellee, v. Central National Bank & Trust Company, Third-Party Defendant-Appellant.
    Gen. No. 69-148.
    Second District.
    March 19, 1970.
    Yalden and Ridings, of Rockford, for appellant; Maynard & Brassfield, Eugene E. Brassfield, of Rockford, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    Merchants National Bank of Aurora, as Administrator of the Estate of Harold E. Seckman, Deceased, Plaintiff-Appellee, v. The Elgin, Joliet & Eastern Railway Company, an Illinois Corporation, Defendant-Appellant, and Edward L. Sak, Jr., Administrator of the Estate of Marilyn J. Sak, Deceased, Defendant-Appellant.
    Gen. No. 69-105.
    Second District.
    March 23, 1970.
    Rehearing denied and opinion modified April 24, 1970.

      Hackbert, Rooks, Pitts, Fullagar and Poust, of Chicago, and Alschuler, Putnam, McWethy, Weiss & Weiler, of Aurora, for appellants.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The plaintiff, as Administrator of the Estate of Harold E. Seckman, Deceased, sued the defendant, E. J. & E. Railway Company, and the Administrator of the Estate of Marilyn J. Sak, Deceased, the driver of the vehicle in which Seckman was riding, to recover damages resulting from a crossing accident. The jury found against both the railroad and the administrator of the host driver and awarded damages of $250,000 to plaintiff.

Only the railroad appeals from the judgment entered on the verdict, claiming that it was not negligent in the operation of its Train No. 6, that the sole proximate cause of the collision was the negligence of the driver of the vehicle, and that it was prejudicial error to permit an expert to testify to the alleged inadequate protection at the crossing. Reversible error is also claimed in the instructing of the jury.

The collision between a southbound freight train and a westbound pickup truck with a mounted “camper” occurred on October 30th, 1967, about 5:30 p. m. at the 143rd Street crossing of the railroad, one mile north of Plainfield, Illinois. The issue of defendant’s negligence was submitted to the jury with the particular allegations charging failure to install adequate visual, physical and audible warning devices at the 143rd Street crossing, operation of the train at excessive speed, failure to apply the brakes, failure to keep a proper lookout and failure to blow a whistle through the crossing.

Inasmuch as the defendant claims error in the refusal to direct a verdict, the parties concede that the case is to be approached under the Pedrick rule (37 Ill2d 494, 510, 229 NE2d 504 (1967)) in the aspect of the evidence most favorable to the plaintiff. We summarize the evidence in convenient headings with this in view.

Evidence of the physical aspects of the crossing.

143rd Street is a two-lane blacktopped county highway running easterly and westerly. It intersects the main line of the railroad at slightly more than a right angle on the approach to the tracks from the east going west. The speed limit on 143rd Street in the area in question is 65 miles per hour. It is flat for some 900 feet east of the crossing.

The railroad tracks are straight, and run generally north and south. On the easterly approach to the crossing, there is a county highway sign on the north side of the road approximately 900 feet east of the crossing, marked with a black “X” and “RR”; the pavement east of the crossing has a painted warning. The crossbucks are aluminum, covered with a retrofleeting material. There was testimony that such material, when new, reflects light 180 times better than white paint; that because of the age of the application about 86% of the original reflection was still retained; and that dirt would reduce the reflection to an undetermined degree.

There were no gates or flashers.

Evidence related to visibility.

The weather was described variously as raining, drizzling, a little foggy, and misty.

There were no streetlights focused on the crossing. Visibility at the crossing was described by various witnesses as dark due to the heavy overcast and approaching sunset, halfway between bad and good, fairly poor, hazy, and almost dark.

Factory buildings in the area were lighted from the outside and in the parking areas, and there was testimany that the crossing itself, with no lights, appears to get darker than it would when the lighting was material and constant. Lights of trains would be horizontally aligned with building lights.

There was testimony of a survey of sight distances made on February 5, 1968, offered by the railroad, to the effect that if a vehicle was some 700 feet east of the railroad crossing on 143rd Street there would be an unobstructed view to 452 feet north of the crossing along the tracks, increasing to 798 feet when the vehicle would approach to 200 feet east of the crossing. The testimony purported to take account of the buildings in the area and certain boxcars which were on a factory siding 600 feet north of the crossing as indicated on the date of the accident. On cross-examination, the witness who testified as to the survey conceded that the visibility distance would apply at night “unless there was an obstruction like fog between the vehicle and the train.” The sight line distances were computed in back and in front of the boxcars on the siding.

Aerial photographs of the area were admitted with the location of buildings, the positions of the vehicle and of the train, and boxcars on sidings indicated. Photographs of the area and buildings were introduced which had been taken both in the daytime and at night.

There was testimony that the crossing signs reflected well with the bright lights of an approaching vehicle, but with normal lights, “they were just a little low although you could see it.”

In furtherance of its theory that there were distracting conditions affecting visibility as well as the physical sight distances, plaintiff presented testimony that there was a cut switch train of 8 cars to the south of the crossing; and that on the siding some 1,000-1,680 (depending on conflicting testimony) feet north of the crossing, in the same direction as defendant’s Train No. 6 was approaching, there was a working switch train with headlights, gyrolight, whistle and 8 cars, which a part of the conflicting testimony indicated would have been visible to the Seckman vehicle; and that on a siding for the Fleischmann factory, which building was located about 384 feet east of the crossing, there were 3 parked boxcars.

Evidence related to the “camper” and its occupcmts.

Marilyn J. Sak was the driver of the camper on this day under a car-pool arrangement. 143rd Street route had been taken for several weeks prior to the accident, but this was a temporary measure due to construction work on the route usually taken. There was testimony as to her careful habits.

There was testimony of Seckman’s careful habits, additionally, with further evidence that he had a perforated right eardrum which affected hearing in that ear.

Plant guards at the Fleischmann factory, stationed at a guardhouse some 528 feet east of the crossing, testified that they watched the taillights of the camper all the way to the crossing, that no brake lights went on, and that the camper never changed speed or swerved. They described the camper as being 459 to 560 feet east of the crossing when they first saw it, traveling at 35 to 60 miles per hour.

The engineer of Train No. 6 was on the right side of the cab and did not see the camper prior to the impact; however, the head brakeman, on the left side of the engine cab, testified that he first saw the camper when it was about 500 feet east of the crossing and at a time when the locomotive was about 250 feet north of the crossing. The camper was then going between 50 and 60 miles per hour and had its headlights on. At no time did the camper appear to slow, speed up, or swerve.

Other railroad employees in the area also testified that the camper did not increase or decrease its speed prior to the impact.

The witnesses observing the incident testified to an interval of 3 to 5 to 8 seconds from observation of the camper to time of impact.

Evidence related to the operation of Train No. 6.

The engineer testified that he put on the bell, which is an automatic device, at the whistling post for Van Dyke Road, a point located 1,320 feet north of Van Dyke Road. He stated that the bell rang from that point until he stopped 25 car lengths past the accident. He blew the whistle for VanDyke Road and was blowing the whistle for 143rd Street when the head brakeman told him that a truck was approaching from the left. Just prior to the impact the brakeman said “Oh,” and the engineer then put the train into emergency. He was not sure if he caused the emergency action or if it was the impact itself, which cut the brake line.

Both headlights on the locomotive were on bright and the red gyrolight located on top of the cab was on and working. The engineer had made a brake application at the whistling post for VanDyke Road and the train started to slow down at that point from its speed of 45 miles per hour, as he was entering a speed restriction zone. He estimated the speed of the train at 25 miles per hour at the time of the collision. There were 88 cars comprising Train No. 6, in addition to the locomotive and caboose.

The head brakeman testified that he first saw the camper 10 railroad car lengths, or 500 feet, east of the crossing. At this time, the locomotive was 5 railroad car lengths, or 250 feet, north of the crossing. The engineer was blowing the whistle. The bell was ringing, the two headlights were on and the other lights on the engine were on, including the red gyrolight on top of the cab. The emergency brake was applied at the instant of impact. This witness also testified to the emergency ring which he would have pulled if he knew the truck wasn’t going to stop, but he could not say if that would have stopped the train before reaching the crossing. This witness also testified that the train was going about 25 miles per hour and was in the process of braking at the time of the collision.

The head brakeman of the switch crew was standing near what has been described as the Kerr plant lead, about 1,680 feet north of the 143rd Street crossing when the accident happened. He said he saw the headlight of Train No. 6 first and then could hear the whistle for the VanDyke crossing and testified that it whistled all the way across 143rd Street.

The conductor of the switch train testified that he was some 1,400 feet north of 143rd Street at the time of the accident, and that Train No. 6 passed him at 25 to 30 miles per hour, with its headlights, number lights and gyrolights on. He heard it whistle for Van Dyke Road and for 143rd Street. The rest of the crew of Train No. 6 testified similarly.

The guards at the Fleischmann plant testified that the train’s headlights were on, but that they did not remember seeing the revolving red mars light until after the accident, and that the train did not slow before the impact. One of the guards said that he did not remember hearing the whistle at any time after the train reached a point 275 feet north of the crossing.

Evidence related to crossing standards.

An engineer with the State of Illinois Division of Highways testified that the Department of Public Works promulgates standards which were in effect specifically for the 143rd Street crossing on October 30th, 1967. The standards were introduced as an exhibit. The witness also testified that the fair and reasonable cost of installing flashers and gates at the 143rd Street crossing in 1967 was approximately $15,000.

He also testified to traffic counts taken on all of the state system from which the State Bureau of Research planning predicts future traffic on a normal rule of thumb figure of 4% per year increase in this area, assuming no rapid growth.

There was evidence that 10 trains a day passed the crossing. A witness testified to vehicular traffic of 500 to 800 vehicles daily at the crossing.

Expert testimony relating to the extrahazardous nature of the crossing.

J. Carl McMonagle, a professor at Michigan State University in the transportation planning department, testified for the plaintiff over objection. His qualifications were not disputed and included a degree as a civil engineer and experience in the Michigan State Highway Department for 21 years, with a background in the study, practice, and theoretical aspects of grade crossing protection, with 25% of his time spent in the study and evaluation of grade crossing problems. He was a past national president of the Institute for Traffic Engineers.

He concluded, in answer to a hypothetical question, that the crossing was “very inadequately protected,” and that a minimum adequate protection at this crossing would be flashing lights and bells.

Preliminarily to answering the hypothetical question, he testified that he had made both daytime and nighttime inspections of the crossing, and had examined the various plats and photographs in evidence showing the character of the area surrounding the crossing. He referred to the effect that the nighttime lighting had on the crossing, stating that the unlighted crossing appears to get darker around the particular area by reason of the lighting in the nearby plant area. He characterized this as a “recognized physiological phenomena,” and related to many past studies. He considered the custom and practice in Illinois with respect to various warning signs, and he considered standards promulgated by the Illinois State Highway Department for grade crossing protection. This was in relation to the number of trains daily, their average speeds, the average speeds of automobile traffic, the average daily volume of automobile traffic and the type of the highway.

Defendant railroad, in its argument that it was not shown to be negligent within the issues submitted under the pleadings to the jury, urges that the evidence shows that the statutory warning was given, that there were no special conditions at the crossing requiring additional protection or warnings, that there was no evidence that the train was operating at excessive speed, no evidence that it failed to keep a proper lookout, and no evidence that it was negligent in attempting to stop.

Railroad crossings are, of course, inherently dangerous, and not every circumstance which might be said to increase the degree of danger will impose a duty upon the railroad to provide extraordinary means to protect the crossing beyond signs warning of its presence.

Whether the railroad had the duty here to, at the least, erect a warning device which would add the dimension of sound and which would increase the visibility of the warning by flashing lights, depends upon a number of interacting factors, all directed at the question of what precautions would enable a traveler to ascertain the approach of a train.

Because the existence of the duty and the acts which may be considered to breach the duty, as well as the causative factors, must necessarily vary in the circumstances of each case, the authority of precedent cases is greatly limited, except as they furnish general principles.

The amount of protection required is dependent upon the circumstances existing at the particular crossing, at the particular time of the approach of the vehicle. These factors include population and traffic in the area, physical obstructions to view, and the effect which confusion incident to railroad or other business in the area would have on the sight or hearing of ordinary signals. Applegate v. Chicago & N. W. Ry. Co., 334 Ill App 141, 152, 78 NE2d 793 (1948). See also Grand Trunk Ry. Co. of Canada v. Ives, 144 US 408, 36 L Ed 485, 12 S Ct 679 (1891); and see 5 ALR2d 112, Annotated. The fact that a statute may provide one precaution does not relieve the railroad from adopting such others as public safety or common prudence may dictate. Wagner v. Toledo, P. & W. R. R., 352 Ill 85, 91, 185 NE 236 (1933). That the Illinois Commerce Commission has not ordered a certain warning or signaling device at the crossing does not thereby relieve a railroad of negligence in not providing such device. Willett v. Baltimore & O. S. W. R. Co., 284 Ill App 307, 312, 1 NE2d 748 (1936).

Analysis of the interacting facts present in this record viewed in aspect most favorable to plaintiff, in our view, supports the jury verdict.

We cannot agree with defendant’s statement that the crossing was a “simple country crossing and properly marked,” as a matter of law. There were factory buildings in the area, with consequent increase in activities and traffic. While the area of the crossing was not obstructed so as to prevent an adequate and reasonable view of approaching trains under all conditions, there was evidence of special conditions existent at the time of the approach of the vehicle.

The jury could have properly determined from the conflicting evidence that at the particular time of the accident, the crossing was dark and visibility of both the crossing and the crossbucks and other painted warning signs was diminished by weather conditions which the jury could have selected from descriptions ranging from degrees of fog, rain and mist. They could also have determined from the conflicting evidence that the retroflecting material on the crossbucks afforded diminished warning because of age and exposure and the lesser retroflection from the beam of normal driving lights from an approaching vehicle. Under the circumstances, the jury, having before it various photographs and plats, could best assess the ability of a driver to see both warning signs and the approach of the train, and could properly have assessed the evidence of sighting distances presented by the railroad survey and witness, particularly when this evidence was not qualified to the particular conditions which could be found to be operative at the time of the accident. The jury was also in a superior position to assess the testimony as to the effect which the lighting of the buildings and parking lights could have in restricting visibility of the danger at the crossing in the movement of the vehicles from a light area into a darker one. Similarly, the jury could assess whether the operation of the switch train and the placement of boxcars on sidings in the area, made for conditions which were not ordinary and which might be considered to have an effect on the hearing or the seeing of ordinary signals.

While the defendant railroad has cited numerous cases in which particular individual factors claimed by plaintiff to be present here, were held not to be controlling in determining whether a crossing was extrahazardous, these are of little help in deciding whether the interacting combination of evidentiary factors in this case sufficiently define an issue of negligence for the jury.

While defendant suggests that Haley v. Baltimore & O. R. Co., 341 F2d 732 (7 Cir-1965), “contains almost identical facts” to those in the present case, we do not find this to be so. Among the distinguishing facts of the cases are that the factory near the crossing in the cited case was not in operation and the minimal stationary lights on the factory grounds are not comparable to the lighting situation shown here. The motor vehicle in that case had no lights on, so that the train crew could not be chargeable with knowledge of its presence. There was no evidence of rain, mist or fog. There was no evidence of switching activity. Haley was the plaintiff driver and not a guest as is the plaintiff decedent here, and the driver’s contributory negligence appears to have been a substantial factor in the holding.

Defendant suggests also that Shaw v. Chicago & E. I. R. Co., 332 Ill App 285, 75 NE2d 51 (1947) presents a similar situation. Among other distinguishing facts, there was no allegation in that case of the ultrahazardous nature of the crossing and, again, the contributory negligence of the driver, or an intervening cause under the driver’s control, weighed materially in the ruling.

We conclude that whether the crossing here was extrahazardous was properly a jury question.

In this perspective, the issue of whether Train No. 6 was traveling at excessive speed, and whether a proper lookout and emergency stopping procedures were maintained, became jury questions, considering the totality of the evidence of alleged negligence viewed in the aspect most favorable to the plaintiff.

Henegar v. Illinois Cent. R. Co., 30 Ill App2d 418, 174 NE2d 887 (1961) (abst), is cited by defendant apparently for the proposition that a train speed of 50 miles per hour or less (here the evidence ranged between 20-40 miles per hour) is no evidence of negligence, as a matter of law. This is not the holding. Under the particular circumstances of that case, the train traveled “over open country within view of all, even in adverse weather,” and under those circumstances the operation of the train could not be considered negligent or a causative factor in the collision. Speed is not negligence per se, but may become an act of negligence under particular circumstances. See Applegate v. Chicago & N. W. Ry. Co., supra, at page 150; and Zank v. Chicago, R. I. & P. R. Co., 26 Ill App2d 389, 168 NE2d 473 (1960) (abst), and Longhini v. Gulf, M. & O. R. Co., 348 F2d (CA 7th, 1965).

Defendant also urges that there was no evidence of improper lookout to submit to the jury, relying principally on Robertson v. New York Cent. R. Co., 388 Ill 580, 58 NE2d 527 (1945). In Robertson, the issue was whether the railroad was willful and wanton rather than merely negligent. There was no evidence that the motor vehicle would not stop at the crossing. Here, the train fireman and lookout saw the “camper” when it was 500 feet east of the crossing, going between 50-60 miles per hour, in his opinion, and he said that he did not conclude it was not going to stop until it was right in front of the train. The fireman’s warning to the engineer, “there is a truck coming,” under the circumstances, was a recognition that the camper was not stopping, and the inaction and failure to institute emergency procedures after a lack of response by the engineer was some evidence of negligence for the jury to consider.

We would not agree with the defendant that there was no evidence that the. statute which requires a whistle or a bell to be rung or sounded up to the crossing from a point at least 80 rods (1,320 feet) was violated. (Ill Rev Stats 1967, c 114, § 59.) The ringing of the bell was testified to as an automatic device. The testimony of one of the guards at the Fleischmann plant that after the first blast of the train horn, which called its approach to his attention, he could not “recall hearing it again,” is negative testimony and contrary to the testimony of all of the railroad witnesses that the horn sounded continuously in the long, short blasts prescribed. Such negative testimony can have probative value only where the witness was in such proximity that he could have heard the sound had it been given and his attitude of attention was such that if sounded it would have attracted his attention. Applegate v. Chicago & N. W. Ry. Co., supra, at page 149; Berg v. New York Cent. R. Co., 391 Ill 52, 60, 61, 62 NE2d 676 (1945). The testimony here may be said to have some probative value so that it was not error to submit the issue to the jury. However, we perceive that it may have been given little weight in the jury’s determination and was not necessary to support the verdict.

From what we have said, it follows that the negligence of the driver of the camper was not the sole proximate cause of the collision, and it was not error for the trial court to so rule, leaving the question of whether there was concurring negligence on the part of the driver and. the defendant railroad company to the jury.

Permitting the expert witness to give an opinion that the crossing was inadequately protected was a ruling within the court’s sound discretion, and was not error.

Defendant argues that the case of Hughes v. Wabash R. Co., 342 Ill App 159, 95 NE2d 735 (1950), which reversed a judgment when an expert witness characterized a railroad crossing as extrahazardous, survives in its result although not in all of the reasoning used. It is defendant’s claim that the later cases which have reexamined and liberalized the offering of opinion evidence over the objection that such evidence usurps the jury’s function of drawing the necessary inferences from the circumstances, or invades the jury’s province of determining the ultimate issue, still require a preliminary showing of the necessity to assist the jury in drawing inferences from facts before a witness may be allowed to testify in the general area of inquiry. Miller v. Pillsbury Co., 33 Ill2d 514, 211 NE2d 733 (1965) is thus cited for the rule that expert testimony must be “necessary” and “essential” before it is admissible. Abramson v. Levinson, 112 Ill App2d 42, 250 NE2d 796 (1969), is similarly cited.

Both of the cited cases involve the use of so-called “reconstruction experts,” and we do not believe that the rule applicable to that kind of testimony may be applied, chapter and verse, to opinion evidence whether a combination of factors makes a locale hazardous or ex-trahazardous. The Supreme Court in Miller v. Pillsbury, supra (at page 516), recognized the general trend of permitting expert testimony “even as to matters of common knowledge and understanding where difficult of comprehension and explanation.” The Appellate Court in Baran v. City of Chicago Heights, 99 Ill App2d 221, 227, 240 NE2d 381 (1968) approved the trial court’s discretion in allowing an illumination expert to give an opinion, based upon engineering society standards, his training and education, and his examination of the area, that an intersection was improperly lighted. While as defendant argues, it does not appear that the question of admissibility was directly raised either in the Appellate Court, or in the Supreme Court, the latter court affirmed and noted without further comment, that “plaintiff called as an expert an electrical engineer who testified that in his opinion the intersection was improperly illuminated, that the light pole was placed on the wrong corner.” Baran v. City of Chicago Heights, 43 Ill2d 177,180, 251 NE2d 227 (1969).

Cases from other jurisdictions which involved a specific question of expert opinion as to the hazardous nature of a railroad crossing are not in agreement. We believe the better reasoning delineates a trend toward permitting such testimony in the sound discretion of the court when the witness has a peculiar knowledge or experience not common to the world in general which may aid the finder of fact in determining the issues before it. The court or jury is, of course, not bound to accept the conclusions of the expert. See Shutka v. Pennsylvania R. Co., 74 NJ Super 381, 181 A2d 400, 409 (1962); Southern Pacific Co. v. Watkins, 83 Nev 471, 435 P2d 498, 508 (1967); Bridger v. Union Ry. Co., 355 F2d 382, 387 (CA 6th, 1966).

The interaction of lighting conditions, retroflection, traffic and weather factors, relative speeds of trains and vehicles, and distraction elements are of sufficient difficulty of comprehension and explanation to justify the assistance of expert testimony. Even if such testimony is not necessary and essential in an absolute sense, this seems clearly to be an area in which the finder of fact may, in fact, be in need, of some assistance to make meaningful inferences in the particular circumstances of a particular case. We believe this to be a case in which the judge’s discretion was properly exercised to admit the expert testimony.

Defendant next claims error in the giving of an instruction based upon Ill Rev Stats 1967, c 114, § 62:

“ ‘There was in force in the State of Elinois at the time of the occurrence in question certain statutes which provided:
“ ‘
“ ‘Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective rights of way, so that at all times they shall be reasonably safe as to persons and property.
“ ‘If you find that the defendant violated the statutes on the occasion in question, then you may consider that fact together with all of the other facts and circumstances in evidence in determining whether or not the defendant was negligent immediately before and at the time of the occurrence.’ ”

Defendant urges that the statute is concerned with the physical layout and composition of a crossing and its approaches and does not relate to the issue of inadequate warnings.

We agree that this was the apparent purpose of the statute and that it was not intended to broadly cover all issues related to warnings of extrahazardous crossings. Cleveland C., C. & St. L. Ry. Co. v. Moss, 89 Ill App 1, 6 (1899). The statute and similar statutes found in other jurisdictions seem always to have been directed against defective surface conditions at crossings and approaches. See 91 ALR2d 10, Annotated. Here there was no evidence of any physical defect in the surface layout or composition of the crossing and it was error to give the instruction. However, we do not find the error to be one which would so confuse the jury as to warrant a reversal. The jury was otherwise properly instructed as to the railroad’s duty to maintain a safe crossing and the narrow inapplicability of the specific statutory section, in our view, could not change the result.

We also find no error in the admission of plaintiff’s exhibit No. 29, being “standards for grade crossing protection in the State of Illinois.” It was shown that the standards were published by the Illinois Department of Public Works and were in effect on October 30th, 1967, including the particular location involved. Professor McMonagle confirmed that these were standards which were typical of “a good many states.” Of course, such codes or standards do not have the force of law and may not be admitted as absolute evidence of standards of care. They serve much the same function as does evidence of custom and may be admitted when they aid the jury in deciding “what was feasible and what the defendant knew or should have known,” as appropriately stated in Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 332, 211 NE2d 253 (1965). Defendant cannot properly claim that since the Illinois Commerce Commission has not directly ordered more than crossbars at a particular crossing that all evidence which bears on common law negligence is barred. The citation of Clements v. Schless Const. Co., Inc., 91 Ill App2d 19, 26, 234 NE2d 578 (1968) in this respect is not appropriate. There the Structural Work Act as well as the Health and Safety Rules of the Industrial Commission controlled and measured the entire duty of the defendant; here the duty of a railroad to maintain safe crossings is broader than any particular statutory requirement. See Willett v. Baltimore & O. S. W. R. Co., supra.

The standards presented a formula for determining public safety based upon an “exposure factor” which is the product of anticipated total 24-hour vehicular traffic 10 years hence, and the current total 24-hour railroad traffic; and considered that

“Grade crossings are considered adequately protected by crossbuck signs until the ‘exposure factor’ reaches a level of 3,000 with at least 2 train movements daily. When this exposure level is exceeded, further protection by means of either flashing light signals or flashing light signals supplemented with gates is warranted. . . .”

Professor McMonagle testified to the customary application of the exposure factor in the field of traffic safety and concluded that "it works.” The application of the factors in the hypothetical case exceeded the figure 5,000 with 3,000 being the maximum at which cross-bucks would be considered adequate.

The standards were only one of the factors considered by the expert witness and were properly a basis, in part, of his expert opinion.

The judgment below is affirmed.

Affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: TRAPP, J.

text:
    Althea Deaver, Executor of the Will of Philip F. Deaver, Deceased, and Althea Deaver, Administrator of the Estate of Lester M. Samples, Deceased, and Althea Deaver, Plaintiff-Appellee, v. Ronald Hickox, Defendant-Appellant.
    Gen. No. 11,124.
    Fourth District.
    March 25, 1970.

      Ryan & Heller, of Mattoon (Willis P. Ryan, of counsel) , for appellant.
    Lemna & Lee, of Tuscola, and Busch, Harrington & Porter, of Champaign, for appellee.
   TRAPP, J.

This case was reviewed as Deaver v. Hickox, 81 Ill App2d 79, 224 NE2d 468, and remanded for a new trial because of error in admitting certain purported expert testimony. Upon the new trial the jury verdict was for the defendant. The trial court, however, entered judgment non obstante veredicto upon the issue of liability and ordered a new trial upon the issue of damages only. The trial court further conditioned such judgment non obstante veredicto by granting plaintiffs a new trial in the event that such judgment was reversed. Leave to appeal was denied in this Court.

Upon the issue of damages only judgments were entered in the sums of $30,000 for the death of Deaver, and $2,500 for the death of Samples. Defendant appeals.

The decedent, Philip Deaver, with decedent, Lester M. Samples, as a passenger, was driving south on an oiled road approaching the unprotected intersection with an east and west road on which defendant, Ronald Hickox, was travelling in an easterly direction. The intersection was in defendant’s neighborhood and he was familiar with it. The northwest corner of the intersection was occupied by standing corn, about five and one-half feet high.

There were no competent eyewitnesses to the accident. Proof was made of the careful driving habits of the decedent, Deaver. While there is no direct evidence as to the careful habits of the decedent, Samples, there is, we believe, sufficient evidence to go to the jury upon the issue of the due care of Samples under the rule of Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 211 NE2d 720, and Lobravico v. Checker Taxi Co., Inc., 84 Ill App2d 20, 228 NE2d 196.

Defendant’s automobile left 39 feet of skid marks immediately prior to the impact, and struck the Deaver’s car at about the middle of the intersection. The Deaver’s car was pushed into the field in the southwest corner of the intersection and came to rest on its top. Defendant’s car came to rest facing northwesterly in the southeast corner of the intersection.

The front end of defendant’s car was pushed back about a foot and the right side of the Denver’s car was pushed in about a foot and a half in the area of the right front door.

A witness which the trial court found to be qualified as a reconstruction expert testified to an opinion that each vehicle was travelling at a speed of approximately 20 miles per hour at the time of impact. As a further opinion related to the evidence, the skid marks placed the speed of defendant’s car at about 32 miles an hour before its brakes were applied.

The issue is whether the trial court properly set aside the finding of the jury upon the issue of liability. We have examined with care the trial court’s memorandum filed when entering judgment non obstante veredicto with the alternative order granting a new trial. He determined that defendant was negligent as a matter of law in approaching an intersection at the speed in evidence when the view was known to him to be hidden by the growing corn. He concluded that the plaintiffs’ decedents were in the exercise of ordinary care for their own safety upon the evidence of habits of due care of the deceased driver, Deaver, and the fact that each of the decedents was wearing seat belts.

The court erred in concluding that the wearing of seat belts was competent evidence of due care in the operation of the automobile in which Samples and Deaver were riding. In Mount v. McClellan, 91 Ill App2d 1, 234 NE2d 329, it is said:

“Whether a person has or has not availed himself of the use of seat belts would have no relevancy in determining the cause of an accident,”

and continues to say that the use of seat belts is not to be considered by the trier of fact in determining the issue of liability. In this case liability and freedom from contributory negligence are equivalent issues for the trier of fact.

Upon consideration of the evidence of the use of seat belts and of the habits of due care, the trial court concluded that the evidence showed that the driver, Deaver:

“. . . was in control of his automobile before and at the intersection. . . .”

It appears from such language that the trial court concluded that under the evidence Deaver and Samples were in the exercise of ordinary care as a matter of law.

The rule is usually stated that due care may be inferred from a consideration of all of the circumstances shown by the evidence, together with the evidence of habits of due care. Hughes v. Wabash R. Co., 342 Ill App 159, 95 NE2d 735; Karlock v. New York Cent. R. Co., 333 Ill App 655, 78 NE2d 122; Turnbull v. Porter, 55 Ill App2d 374, 206 NE2d 97; Lobravico v. Checker Taxi Co., Inc., 84 Ill App2d 20, 228 NE2d 196; Aurora Nat. Bank for Use of Knott v. Galauner, 81 Ill App2d 132, 224 NE2d 604. IPI No. 10.08 is phrased to advise the jury of the inferences which may be drawn from the evidence of habits of due care and concludes:

“. . . In deciding the issue of the exercise of ordinary care by the decedent you may consider this inference and any other evidence upon the subject of decedent’s care.”

While the testimony is offered in behalf of Deaver that he always stopped before entering intersections when the view was hidden by tall corn, such is belied here by the evidence that his car was travelling 20 miles per hour when struck in the middle of the intersection. The trial court’s memorandum does not reflect consideration of the factor that Deaver’s duty was controlled by chapter 95½, § 165, Ill Rev Stats 1963, that his view of a car approaching the intersection from the right was equally hidden by growing corn, and that a jury might well conclude that a driver entering such an intersection and struck in the middle of it while travelling 20 miles per hour was not in the exercise of ordinary care for his own safety. In the light of all of the evidence it was error for the court to conclude that there could be:

“. . . no other finding than that . . . each of the decedents were in the exercise of due care at and prior to the collision.”

Such issue was properly a jury question. Aurora Nat. Bank for Use of Knott v. Galauner, 81 Ill App2d 132, 224 NE2d 604; Turnbull v. Porter, 55 Ill App2d 374, 206 NE2d 97.

Upon consideration of all of the evidence we must conclude that it was not proper to invoke the rule of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 and enter judgment non obstante veredicto.

We are called upon to review the conditional rule of granting a new trial, chapter 110, § 68.1 (6), Ill Rev Stats 1967. An abuse of discretion is shown where it appears that the trial court set aside the jury’s verdict and granted a new trial essentially because it would have decided the case differently had it been the trier of fact, or because it concludes that inferences drawn by the court are more reasonable than those reached by the jury:

“The trial court cannot substitute its inferences and conclusions of fact for those drawn by the jury if those drawn by the jury find reasonable support in the evidence.”

Dunlavey v. Patti, 79 Ill App2d 442, p 446, 223 NE2d 858; Dobson v. Rosencranz, 81 Ill App2d 439, 226 NE2d 296. We note that the dissent in the latter case is based upon a conclusion that the jury was misled by the form of certain questions appearing in the record. No error of such quality appears in this record.

The record discloses that the trial court not only reached conclusions concerning the exercise of due care by the deceased driver from his inferences of the respective opportunities to see at the intersection, but that improper matters were deemed conclusive upon the issue of freedom from contributory negligence. Such inferences and conclusions drawn by the court are contrary to those reached by the jury upon the identical evidence. Under such circumstances, the trial court’s orders are an abuse of discretion.

As stated in Dailey v. Hill, 99 Ill App2d 474, 241 NE2d 683, it is irrelevant that the trial court might have decided the case differently on his own evaluation of the testimony. Defendant is entitled to have questions of fact decided by the jury, and the drawing of inferences from the evidence and resolving issues of fact such as negligence or contributory negligence are matters for the jury and not for the judge. Here there is no showing that the verdict resulted from passion or prejudice or is wholly unwarranted by the evidence.

Plaintiffs argue that it was error to admit the opinion testimony of defendant’s reconstruction expert, and that the trial court could have considered such fact in his order granting a new trial. There has, however, been no cross-appeal and the trial court’s memorandum explicitly states that such evidence was competent and that he adhered to his ruling which admitted it into evidence.

The judgment below is reversed and the cause is remanded with directions to vacate the order granting a new trial, and to reinstate the verdict of the jury which was set aside by the trial court.

Reversed and remanded with directions.

CRAVEN, P. J. and SMITH, J., concur.


author: ALLOY, J.

text:
    Pekin Memorial Hospital, an Illinois Not-for-Profit Corporation, Plaintiff-Appellee, v. Albert E. Schilling, Supervisor of General Assistance, Pekin Township, Tazewell County, Illinois, Defendant-Appellant.
    Gen. No. 69-67.
    Third District.
    March 31, 1970.

      Dunkelberg & Rust, and Alfred W. Black of Pekin, for appellant.
    Moehle, Moehle, Reardon & Sincock, of Pekin, for appellee.
   ALLOY, J.

Plaintiff Pekin Memorial Hospital had accepted certain patients for medical treatment and had cared for such patients as prescribed by the patient’s physician. Shortly after the individuals referred to were admitted to the hospital, the hospital determined that the persons had no funds with which to pay their bills. Five days after the admission of such patients, the hospital partially filled out a form used by the Illinois Public Aid and had each of the patients sign this form. The forms were then sent to the defendant Albert E. Schilling, Supervisor for Pekin Township, with a request for payment of the bills. The hospital also notified the defendant that the hospital had determined that the patients were medically indigent and that they were residents of Pekin Township or had been injured or fallen ill in Pekin Township. Defendant, as Supervisor of Pekin Township, was also, by statute, Supervisor of General Assistance for Pekin Township. Defendant refused to make payment of the bills submitted by the hospital and contended that the hospital was first required to file an application for payment on forms of the Supervis- or rather than the Illinois Public Aid form which was used by the hospital.

The hospital thereupon filed an action in twelve counts (a count for each patient), and thereafter there were numerous motions and pleadings in the cause. Finally, the plaintiff hospital filed motions for summary judgment and supported the motions as to each count with three affidavits. One of the affidavits was by the patient describing the financial condition of the patient and disclosing that the patient had no funds with which to pay the hospital bill. Another affidavit was that of the attending physician which described the physical condition of the patient, the charges for services, and also stated that the charges for services rendered by the hospital were the usual, regular and proper charges for such services. There were attached copies of the various hospital bills which billed the charges for specific items such as laboratory and room. The bills contained a key system which could be used to check back on each particular item charged to any patient.

Another affidavit in support of the motion for summary judgment was signed by the finance director of the hospital. In this affidavit, the finance director stated that the charges made for the various bills were the usual and regular fees charged by hospitals in the area. No counteraffidavits were filed by defendant, nor did he file any motion to test the validity of any of the affidavits or contest any of the facts therein stated.

On appeal in this Court, a motion was made to strike the brief of defendant, but in view of our disposition of the case we do not believe it is necessary to rule on such motion.

The basic issue before this Court is whether summary judgment was proper. This involved the determination of whether the affidavits filed in support of the motions for summary judgment were sufficient to sustain the entry of such judgments in favor of plaintiff and, also, incidentally whether the charges made by the hospital were fair and proper. An incidental issue also raised was whether the affirmative defense asserted by defendant that “Pekin Township is an independent governmental unit and is not subject to the supervision of state or federal government” was correctly dismissed by the trial court.

Summary judgment is only proper if there is no material question of fact still in issue after considering the pleadings and affidavits (Craig v. Launer, 346 Ill App 234, 104 NE2d 830; Ruby v. Wayman, 99 Ill App2d 146, 240 NE2d 699). As we have indicated in the recital of facts, there was no objection to the affidavits filed, and the question of sufficiency of such affidavits should not be raised for the first time on review (Wool v. Solar Aircraft Co., 47 Ill App2d 84, 90, 197 NE2d 477; Campione v. Henry C. Lytton & Co., 57 Ill App2d 147, 152-3, 206 NE2d 780). Since no motion was made to strike any affidavit, the trial judge was not given an opportunity to pass on the sufficiency of any such affidavit. It appears, however, from a deposition in the record that defendant was not even questioning the reasonableness of the charges made by the hospital. While the hospital bills contained charges by general classification, there was a code included in the bill which could be used to determine the exact drug or charge and when it was furnished. On the basis of the record, it is apparent that the bills were sufficiently itemized to allow defendant to object if defendant had any. question as to any charges for service. The circumstance that defendant had filed a verified answer to the pleadings did not substitute for specific affidavits as to the issues before the court for determination as a result of the motion for summary judgment with attached affidavits (Roberts v. Sauerman Bros., Inc., 300 Ill App 213, 20 NE2d 849). With respect to the issue of whether there were responsible relatives the affidavits submitted by plaintiff disclosed that the patients did not have sufficient funds, even including any help they had from responsible relatives. If defendant sought to contend that there were in fact responsible relatives he should have filed an affidavit to this effect. Since he failed to do so, we cannot determine this question adversely to plaintiff on appeal in this cause.

Another issue which was raised was whether the trial court properly dismissed the affirmative defense asserted by defendant to the effect that “Pekin Township is an independent governmental unit and is not subject to the supervision of State or Federal government.” In the cause before us, the hospital was seeking to have defendant furnish medical aid to various patients pursuant to 1967 Ill Rev Stats, c 23, §§ 7-1 through 7-6. These provisions are referred to as “Article VII Aid.” Under such Article VII Aid, the Township where the eligible person falls ill or resides is designated as the local government unit which must pay for such aid. Defendant contended, as an affirmative defense, that plaintiff had used Illinois Public Aid forms in requesting payment when plaintiff should have used defendant’s application forms. In this respect, defendant referred to section 7-2 of chapter 23, 1967 Ill Rev Stats, which provides that a local governmental unit not receiving State funds for purposes of this Article may prescribe a uniform standard of eligibility according to local conditions. It is also provided that such locally prescribed standards may be less, but not more, restrictive than the uniform standard of eligibility established by the Illinois Department. In this statute it is also provided that the Township Supervisor shall be Supervisor of General Assistance (1967 Ill Rev Stats, c 23, § 12-21.2), and likewise provides that the Supervisor is to administer Article VII Aid (1967 Ill Rev Stats, c 23, § 12-21.8). It is further provided in 1967 Ill Rev Stats, c 23, § 21-12.17, “The administration of public aid by local government units under Article VII shall be subject in aU instances to the supervision and rules and regulations of the Illinois Department.”

It, therefore, appears from all the statutory provisions relating to the question, that, although section 7-2 gives the local governmental unit the authority to set up standards of its own as long as the standards are not more restrictive than those of the Illinois Department, as to Article VII Aid, the administration of the aid is subject to regulation by the Illinois Department whether or not the Township is receiving federal funds. The claims of plaintiff were in proper form and should have been honored by defendant. It is, therefore, apparent that the court properly rejected the contention of the defendant that he is not subject to regulations of the Illinois Public Aid Department.

Since we find no reversible error in the proceedings in the Circuit Court of Tazewell County, the judgments entered therein will be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.


author: JUSTICE THOMAS J. MORAN

text:
    First National Bank and Trust Company of Rockford, Plaintiff-Appellee, v. Nora Lee Sandifer, a/k/a Nora Lee Wiley and Nora Lee Brown, Defendant-Appellant.
    Gen. No. 69-114.
    Second District.
    April 20, 1970.

      Smith, Penniman and McGreevy, of Rockford, for appellant.
    Connolly, Oliver and Goddard, of Rockford, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

Defendant seeks reversal of the judgment of the trial court wherein an order was entered denying the defendant’s motion to set aside a sheriff’s sale of certain real estate.

Prior to October 1, 1960, the defendant resided and was contract purchaser of real estate commonly known as 901 South Court Street, Rockford, Illinois. On October 1, 1960, she married James Sandifer and thereafter, defendant and her husband resided at the premises.

Apex Lumber and Supply Co. (Apex) did some renovation work on the house in question and, on September 28, 1964, defendant executed a promissory note, which contained a confession clause, payable to Apex, in the amount of $4,030. Some time shortly thereafter, although the actual date is in dispute, Apex assigned the note to the plaintiff, First National Bank and Trust Company of Rockford.

On June 19, 1966, James Sandifer, while still residing with the defendant, died. After his death, defendant continued to reside at the premises and, later that year, received a warranty deed conveying the premises to her.

On August 16, 1968, a judgment by confession was entered against the defendant for the sum of $1,913.28. Thereafter, the sheriff of Winnebago County sold defendant’s real estate to plaintiff for the sum of $2,000 and issued a certificate of purchase to the plaintiff. Defendant is appealing from an order denying her motion to set aside the above sheriff’s sale.

On appeal, defendant claims that she was a householder, having a family, and was entitled to a homestead exemption as to the premises in question.

Section 1 of the Homestead Act (Ill Rev Stats 1967, c 52, § 1) insofar as material here, is as follows:

“Every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $5,000, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; ...”

In Rock Island Bank & Trust Co. v. Lamont, 361 Ill 432, 198 NE 430 (1935), at page 434, the Court stated:

“. . . Three conditions must exist under this statute in order that a homestead estate be created: (1) The claimant must be a householder; (2) he must have a family; and (3) the premises must be occupied as a residence. If any of these requisites is wanting the law will not create an estate of homestead.”

See also, Rock v. Haas, 110 Ill 528, 533 (1884); McGookey v. Winter, 381 Ill 516, 525, 46 NE2d 84 (1943); Klebba v. Klebba, 108 Ill App2d 32, 36, 246 NE2d 681 (1969). Some title, no matter what its extent, is also necessary to sustain a homestead estate. Sterling Savings & Loan Ass’n v. Schultz, 71 Ill App2d 94, Ill, 211 NE2d 53 (1966).

The question of whether the defendant is entitled to a homestead exemption is largely a matter of statutory construction as homestead rights were created by statute and not by common law, Petition of Lehman v. Cottrell, 298 Ill App 434, 440, 19 NE2d 111 (1939). From the facts, it is clear that the premises were occupied as a residence; it therefore must be determined whether the defendant was a householder and whether she had a family as contemplated by the Act.

The word “householder,” within the context of the Act, has been the subject of many interpretations prompted by the analogy which heretofore existed between the term “householder” and that of “head of the family.” Within the Act, the term “householder” appears, while the phrase, “head of the family,” does not. Defendant has cited authorities which hold that the Act does not require that the householder be the head of a family but that he shall have a family. (Rock Island Bank & Trust Co. v. Lamont, supra, at p 436; McNichols v. McNichols, 299 Ill 362, 369, 132 NE 448 (1921); Zander v. Scott, 165 Ill 51, 46 NE 2 (1897).) In Zander, the court in reversing on other grounds, stated at page 54:

“We see no reason why a wife, though living with her husband, may not be considered a householder under this provision. The statute does not make it necessary that the party claiming the exemption should be the head of a family. It is sufficient that he or she be a ‘householdler having a family.’ ”

In most family situations, the words “head of the family’ and “householder” are synonymous. The husband, if living and residing with his family, is the “householder,” and the estate of homestead is vested in the husband. (Morris Inv. Co. v. Skeldon, 399 Ill 506, 509, 78 NE2d 504 (1948); Brokaw v. Ogle, 170 Ill 115, 48 NE 394 (1897).) Any man who has a wife is presumed to be the head of a'family within the meaning of homestead and exemption statutes, 40 Am Jur2d, Homestead, § 20.

In an early decision, the Hlinois Supreme Court defined “householder” as a person owning a house occupied as a dwelling within the meaning of the Act. Rock v. Haas, supra, 533. The Court, in Brokaw v. Ogle, supra, at page 126, stated:

“. . . ‘householder’ means the head, or person, who has the charge of the family, and does not apply to the subordinate members or inmates of the household.”

Then, in referring to Zander, the court went on to state that:

. . The ordinary signification, however, of a householder is, that such a person is the head of the family, upon whom the other members are dependent. The family, within the meaning of the Homestead law, consists of those members of the household, who are dependent upon the householder for support, or to whom the householder owes some duty.” (Emphasis added.)

The word “householder” has also been defined as “head or master of a family or the person who has charge of and provides for it.” 40 Am Jur2d, Homestead, § 17. As stated before, it is primarily the husband who is the head of the family, but this presumption may be overcome. 40 Am Jur2d, Homestead, § 20. For purposes of homestead, the wife may be the head of the family where the husband has suffered a severe illness and is incapacitated, so that he is dependent on his wife, rather than her supporter. See, Bigelow v. Dunphe, 143 Fla 603, 197 So 328 (1940). Where a husband who is the head of the family, separates from the wife, the homestead rights continue in the wife who succeeds him as the head of the family. Maher v. Goff, 316 Ill 605, 607, 147 NE 427 (1925).

The defendant has cited a number of cases which held that the wife had a homestead to certain specified property. None of the cases cited set out how the wife satisfied the requirements that are necessary to establish a homestead estate. Thus, we find that those authorities are not controlling on the question as to whether or not a homestead estate was established in the case at bar.

The defendant contends that with women’s emancipation, she now holds a duty to support her husband and thus she is a “householder” under the Act. As the Support Act points out, insofar as the duty of support by wife for her husband is concerned, a wife is liable for the support of her husband only if he is in need of such support and likely to become a public charge. Ill Rev Stats 1967, c 68, § 52. There is a duty to support the husband under the Support Act only if the actual dependency is shown. The defendant has made no such allegation in the case at bar.

After a careful analysis of the authorities cited by both parties, this court is of the opinion that, in this case, the word “householder” and the words “head of the family” are synonymous to the extent that there must be an actual state of dependence by members of the “family” on the individual claiming to be a householder under the Illinois Homestead Act. In order for the wife to be the “head of the family” or “householder” for the purpose of the Homestead laws, she must in fact be the controlling or supporting force in the family and there must be dependence upon her by the family. The element of dependency must be present. See McGookey v. Winter, supra, pp 525, 526.

The defendant, in the case at bar, does not claim or allege that she was the means of support for her family, which consisted of her now deceased husband. It therefore follows that the defendant is not a “householder” under the Act, since she has failed to meet her burden of showing that her “family” was actually dependent upon her.

This court is also of the opinion that the appellant did not have a “family” as contemplated by the Act. A family, under such contemplation, consists of the householder and members of a household who are dependent upon the householder for support or to whom the householder owes some duty to support. Rock Island Bank & Trust Co. v. Lamont, supra, page 435.

Again, the question resolves itself to the point of whether or not defendant’s deceased husband was actually dependent upon her for support. She did not show that her family was dependent upon her or that she was her husband’s means of support.

The trial court found in its order that the debt was incurred for improvements of the premises claimed by defendant as a homestead and, accordingly, is not exempt from sheriff’s sale by reason of the provision of Ill Rev Stats 1967, c 52, § 3. The order further went on to state that the defendant was not the means of support for her family, her husband, James Sandifer, and was not a “householder having a family. . . .”

Defendant’s final contentions are based on Ill Rev Stats 1967, c 52, § 3, which is an exception to the Homestead Act in certain specified situations. The defendant claims that plaintiff has failed to bring its claim within the exceptions as provided in section 3 of the Homestead Act and, therefore, the Homestead Estate of the defendant has not been lost or extinguished. This contention however presupposes that a homestead estate existed in order for the exception to attach. Since we have found there to be no estate of homestead in the defendant, this contention automatically falls.

Therefore, the judgment of the trial court will be affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Patricia W. Booth, Plaintiff-Appellee, v. Leonard J. Booth, Defendant-Appellant.
    Gen. No. 54,050.
    First District, Fourth Division.
    February 25, 1970.
    Rehearing denied and opinion modified February 25, 1970.

      Leonard J. Booth, pro se, of Chicago, appellant.
    Rinella and Rinella, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from an order (1) denying his petition to vacate and modify the order of July 24, 1968, which ordered defendant to pay additional support for college education of the children, (2) finding him in arrears in the sum of $660 which he was ordered to pay in monthly installments, and (3) ordering him to pay $350 for attorneys’ fees. On appeal defendant, pro se, contends that the modification of the judgment for divorce, increasing child support payments for college education, was unreasonable and burdensome and that the $350 award for attorneys’ fees was unfair and unwarranted.

Defendant married plaintiff on June 16, 1943, and they cohabited together as husband and wife until April 24, 1965. During the marriage four children were born, Gregory, now twenty years old, Deborah, now nineteen years old, Douglas, now eighteen years old, and Janice, now seventeen years old. By agreement the divorce decree entered June 6, 1967, gave custody of the children to plaintiff. Defendant agreed to pay $500 per month alimony to plaintiff and $416.66 per month child support for the four children. The obligation of the defendant to pay child support was to abate proportionately as each child reached majority. The decree also provided that the former marital home (value estimated by defendant at $35,000 to $50,000 but subject to a mortgage of about $15,000) and furnishings be awarded to the plaintiff. The defendant further agreed to keep in full force and effect two insurance policies with face values of $10,000 and $27,000.

The defendant was also required to make yearly payments of $800 per year for five years to be applied toward the education of all of the children. Under the decree the court specifically reserved for further consideration the question of liability of defendant for the payment of a college education for each child.

On April 5, 1968, plaintiff filed a petition which alleged that defendant did not designate her as primary beneficiary and the children as contingent successor beneficiaries under the $27,000 insurance policy, in violation of the divorce decree, and further requested that the court make provision for the college education of the children and provide attorneys’ fees. In his answer defendant denied that he violated the divorce decree and denied that he was able to pay the costs of the college education for the children.

The court’s order of July 24, 1968, on plaintiff’s petition found that (1) Gregory Booth, age eighteen, minor son of the parties, was attending Hamlin University in St. Paul where he was a sophomore, (2) Deborah Booth, daughter of the parties, would attain the age of majority on September 8, 1968, upon which date the liability of the defendant to pay her support would cease but that she would be attending Northern Illinois University at DeKalb in September 1968, and (3) defendant’s gross income for 1968 from all sources would be approximately $24,000. The court ordered defendant to pay $165 per month toward the costs and expenses of a college education for these children and that defendant produce documentation that he had fulfilled the original divorce decree by designating plaintiff as primary and the children as contingent successor beneficiaries under the insurance policies. The order was retroactive to July 15,1968.

Defendant filed a motion to vacate the order of July 24, 1968, which alleged in part that his uncontradicted evidence showed that plaintiff and the children were receiving the benefit of 62% of his gross 1967 income and that the order to pay the additional sums was unjust and inequitable. Plaintiff answered that the court’s determination was fair.

On October 8, 1968, plaintiff filed a petition for rule to show cause alleging that defendant failed to pay the additional $165 per month, and requesting that defendant be required to pay this amount and also to pay for attorneys’ fees. During the hearing on plaintiff’s petition her attorney stated that the defendant had given documentary evidence that the insurance policies were in force and that, prior to her April petition, the beneficiaries had been designated in compliance with the original divorce decree. Defendant also introduced as exhibits his income tax returns for 1965, 1966 and 1967. In 1965 defendant’s total income was $22,041.80 (his salary was $18,140.16 and dividends $3,901.64) and his tax was $3,295.63. In 1966 his total income was $24,-490 ($19,860 salary and $4,630 dividends) and his tax was $3,830.50. In 1967 his total income was $25,096.87 ($20,691.37 salary and $4,405.50 dividends) and his tax was $3,042.45. Defendant also testified that his total 1968 income was $25,215.12.

The court denied defendant’s petition to vacate the order of July 24, 1968, and found defendant $660 in arrears in payment of Deborah’s and Gregory’s college education ($165 for September, October, November and December) which was to be paid at the rate of $22.49 per month and further ordered defendant to pay $350 attorneys’ fees. It is from these orders that defendant appeals.

Defendant contends that the modification of the judgment for divorce increasing his payments for his children’s college education was unreasonable and burdensome. He argues that even if the needs of the children have increased, his ability to pay has not. We are presented with the problem of how to apportion the income of a divorced husband to cover alimony payments, support for three minor children, a college education for two of the children, and to provide adequate support for his second wife and himself.

On plaintiff’s rule to show cause the court found that defendant earned “somewhere around twenty-thousand dollars a year from your employment, plus five thousand dollars a year from your dividends, which made the total of twenty-five thousand dollars per year. From that is deducted your withholding tax, your Social Security, and of course, as to them taking out hospitalization insurance and other charges from there.” The court then estimated defendant’s net income at $20,000 per year.

The record shows that the figure of $20,000 net income is probably an average figure for the years 1965-1968. The dividend payments on the stock in his employer’s corporation have fluctuated from $4,680 in 1966 to $1,312.50 in 1969.

At the time of the hearing (January 14, 1969) defendant’s payments per year were $6,000 for alimony, $3,750 for support of three minor children (Deborah became emancipated on September 8, 1968), and insurance payments of $515. These payments plus the $800 hereinabove mentioned amounted to $11,065 per year. When we add $165 per month ($1980 for the year) allowed for college education and the $22.49 per month on the arrearage, the defendant was obligated to pay a total of $13,315 per year, leaving at most $6,685 for the defendant.

Every child should have the opportunity of going to college. However, all parents cannot afford to pay the expense thereof. Many families have insufficient incomes to endow their children with the good fortune of a college education, but their children have obtained scholarships, loans for education or have been employed so as to attain the requisite funds to finance their college education. They go to state or city universities where tuition is lower than in the private out-of-state colleges. Parents are often called upon to make sacrifices to obtain a college education for their children. But the children must also cooperate to lessen the burden to their parents in whatever way they can.

We believe that under all of the circumstances of this case the allowance of $165 per month for the college education of Deborah and Gregory is unreasonably burdensome and unfair to the defendant. However, as the original divorce decree, based on agreement of the parties, did anticipate a college education for the children, we are of the opinion that defendant could and should pay for this purpose $50 per month per child after majority. This amount shall be in force until December 31, 1971; thereafter the payment shall be $100 per month per child toward expenses of college education after maturity. In reaching this conclusion we take into account the fact that the $800 annual payments will end in 1971, and that the plaintiff recently completed her college education in teaching and is employed, according to her attorney’s statement during oral argument.

The defendant’s monthly payment for a child’s college education shall continue so long as he or she remains in college and it shall cease upon the attainment of an undergraduate college degree. We realize that the amount we have ordered for education is inadequate but we cannot in all fairness order payments which are beyond the ability of defendant to pay. Defendant will be paying $6,000 per year as alimony, $1,248 per year per child for those under majority whether or not they are in college, and $600 per year for college education for each child after maturity. Those in college will also share in the $4,000 educational trust fund heretofore mentioned.

During oral argument it was suggested that defendant sell his only asset — his stock in his employer’s corporation — and use the proceeds for the children’s education. As mentioned above, approximately half of this stock has already been sold to meet expenses, and to sell the rest would, of course, reduce defendant’s income that much further. We do not consider this a feasible solution to the problem, any more than would be the sale of the family home by plaintiff.

The defendant also contends that the $350 award for attorneys’ fees was unfair and unwarranted. In Cross v. Cross, 5 Ill2d 456, 467, 125 NE2d 488, the court found that:

With reference to appellant’s claim for attorney fees, it is evident that the court has power to allow attorney fees for services rendered in the enforcement of the decree, and for matters presented by supplemental bill to enforce rights omitted from the original bill. (Riddlesbarger v. Riddlesbarger, 341 Ill App 107.) A fortiori, where the decree expressly reserves the questions of property rights for future determination, the attorney fees incidental to the adjudication of that issue may be properly allowed.

In the instant case the divorce decree expressly reserved the question of the liability of defendant to pay for the children’s college education. Additionally, under Ill Rev Stats 1967, c 40, § 19, the court’s jurisdiction could be invoked for payments for support for educational purposes of children who had attained their majority. Therefore, the plaintiff had the right to file a supplemental petition for the children’s college education and we find that the $350 award for attorneys’ fees was not unreasonable and within the ability of the defendant to pay.

The order of July 24, 1968, is reversed and the cause remanded with directions that defendant be ordered to pay $50 per month for each child after majority and while enrolled as a full-time student in an undergraduate college. This order is effective as of February 25, 1970, the date of filing this opinion. After December 31, 1971, the payment shall be increased to $100 per month for each such child.

We have been advised by the parties that defendant has paid the arrearage of $660.

That part of the January 20, 1969, order awarding $350 attorneys’ fees is affirmed.

Affirmed in part; reversed and remanded with directions in part.

STAMOS, P. J. and ENGLISH, J., concur.

       This is repayment of a $4,000 fund entrusted to defendant.

       On oral argument defendant stated that his 1969 total income was $22,262.58 ($20,950 salary and $1,312.50 dividends). According to a statement obtained by plaintiff’s attorney from defendant’s employer, the above amounts are correct but it added that a dividend in the sum of $2,062.50 had been paid to defendant on January 15, 1970. The statement also disclosed that during 1969 defendant sold 500 shares of stock in his employer’s corporation, which reduced his holdings from 1050 shares to 550 shares.