author: JUSTICE CROW

text:
    Richard L. Manion, Appellee, v. Chicago, Rock Island and Pacific Ry. Co., and J. I. Case Co., Appellant.
    Gen. No. 10,942.
    Second District.
    November 7, 1956.
    Released for publication November 24, 1956.

      Huber, Reidy & Katz of Rock Island, for appellant, J. I. Case Co.
    Stewart & Lytton of Bast Moline (Walter J. Klockau, Jr. and Ben A. Stewart, of East Moline, of counsel) for appellee, Richard L. Manion.
   JUSTICE CROW

delivered the opinion of the court.

It is the intervenor-appellant’s theory that: (1) as a matter of law, there is no competent evidence of negligence of it or its employees proximately causing the injuries and the sole proximate cause thereof was either Manion’s contributory negligence or the railroad company’s negligence, or, alternatively, the verdict finding the intervenor guilty of negligence proximately causing the injuries is against the manifest weight of the evidence; (2) the Court erred in admitting certain testimony of an attorney for the plaintiffappellee; and (3) the Court erred in refusing certain instructions for the intervenor-appellant and in giving certain instructions for the plaintiff-appellee.

The trial court, upon a prior hearing of the intervenor’s original intervening petition to join in the action and for reimbursement out of the judgment for its workmen’s compensation payments, had held, in effect, in sustaining the intervenor’s motion to strike the plaintiff’s answer to its intervening petition and in denying the plaintiff’s motion to strike the original intervening petition, that it wap not necessary for the intervenor to plead and prove freedom from negligence on its part and that of its employees (excluding Manion). On a prior appeal to this Court, by the present plaintiff-appellee, he having elected to stand by Ms answer and a judgment having been entered for the intervening petitioner, that judgment was reversed and the cause remanded with instructions to overrule the intervenor’s motion to strike the plaintiff’s answer to the original petition, and to allow the intervenor to amend its petition in those particulars, if so advised: Manion v. Chicago, R. I. & Pac. Ry. Co. (1954), 2 Ill. App.2d 191. It was upon an amended and supplemental intervening petition subsequently filed that the cause was thereafter submitted to the present jury upon the sole issue of whether there was or was not negligence of the employer, the intervenor, or its employees (excluding Manion), which was a proximate cause of the injuries to the plaintiff employee.

Ch. 48, Ill. Rev. Stats., 1949, par. 166, being Section 29 of the Act, provided, in part, so far as material:

“. . . Where the injury or death for which which compensation is payable under this Act was not proaAmatel/y caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this Act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative. . . .” (Emphasis added.)

Although there is no pleading by Manion, the plaintiff, specifically charging his employer, the Case Company, the intervenor, with any particular act or omission constituting negligence proximately causing his injuries, such was not necessary; the relief sought under the amended and supplemental intervening petition, pursuant to .the statute, was necessarily based upon the affirmative allegation (in part) that neither the intervenor nor its employees (excluding Manion) were guilty of negligence that was a proximate cause of the injuries sustained; the burden to so plead and prove those statutory substantive requirements was on the intervenor: Manion v. Chicago, R. I. & Pac. Ry. Co., supra; and Manion’s answer (in part) to the amended and supplemental intervening petition denied those allegations and denied the intervenor was entitled to be indemnified or reimbursed.

The evidence is somewhat in conflict, but the facts are substantially as follows, and where there is some material conflict in the evidence, we shall endeavor to note such:

On November 14, 1949, at about 9:00 p.m., Manion, in the course of his employment, was driving an empty material-hauling jeep north across a series of three east-west tracks of the Chicago, R. I. & Pac. Ry. Co., the original defendant, where the tracks traverse a concrete inter-plant crossing between' portions of the Case Company’s plant lying to the north and other portions thereof lying to the south of the tracks, at the Sixth Street crossing, Eock Island. The Case Company had, for many years, enjoyed an easement to cross the right-of-way at this point, but, subject to that, the railroad had complete ownership of its right-of-way, including the fixed equipment thereon and, of course, the trains operated thereon. The railroad had been doing some repair work at the crossing in the month prior to the accident. The general foreman, plant inspector, and safety engineer of the Case Company knew that such work was being done. Manion and the other Case Company employees were expected and required to uée that crossing in passing from and to the respective parts of the company’s plant located on both sides of the tracks, when necessary in the discharge of their duties. The company’s safety engineer said that this crossing was probably one of the most dangerous spots in the plant, that they confined their activities to the things that give them the most trouble, and though the right-of-way was in the “jurisdiction” (as he put it) of the railroad, the Case Company was concerned with and interested in the safety of its employees going from one part of the plant to the other and in the safety of the crossing. Manion’s jeep was struck on the most northerly track by a westbound diesel switch engine operated by the railroad’s crew, from which collision he received his injuries. Manion and his employer,' the Case Company, were operating under the Illinois Workmen’s Compensation Act.

Manion had been working the night shift for a considerable period of time prior to the accident, and had been furnished a jeep or small tractor and truck attached for the'purpose of delivery of material in and to various parts of the Case plant located on the south side of the right-of-way, and occasionally, but not every night or regularly, was required to go to the company’s foundry yard on the north side of the tracks to load material.' On the evening in question, for the first time in the week before the accident, he was, in the performance of his duties, going to the north side of the tracks to load certain castings from the foundry yard there, and he used the same jeep he had been using previously. When empty the jeeps made considerable noise in going over the tracks. There were, Manion said, no headlights on the jeep, the original lights having been knocked off; he said there were lights on it during the week prior to the accident,— but not on the night of the accident; Bill Griffith, another Case Company employee, said no lights were operating on Manion’s jeep. There is contrary evidence to the effect there were lights on Manion’s jeep, but, in any event, there were evidently no lights in operation on it at the time, either because they had been knocked off or were not turned on by Manion.

Because, for whatever reason, his headlights were not in operation, he had followed another jeep driver, the above Bill Griffith, who had lights on his jeep, out of a so-called tunnel-way from one of the buildings, going north toward the tracks. The so-called tunnel-way is evidently a vehicular passageway at ground level into or through one of the Case buildings south of the tracks. There was a mesh wire fence on the south side of the right-of-way extending easterly from a gate which gave access to the crossing. It was about 61 feet from the tunnel-way to that fence, and about 31 feet from the fence to the most northerly track at the crossing. It had been dark that evening since as early as six p.m., and Manion said he had been working all around the plant without lights on his jeep, which was contrary to the Case Company rules. Around nine p.m., he had asked Griffith to cross the tracks with him to help load the castings, and Griffith had preceded him out of the paint or repair shop south of the tracks and he followed Griffith’s jeep, about a length behind. Manion stopped about opposite the end of the wire fence on the south side of the railroad right-of-way, and Griffith from then on evidently no longer paid any attention to him. Manion then just started off over the tracks, after glancing both ways a little and seeing nothing. Griffith did not look to observe Manion after Griffith started to cross the tracks, Griffith having no knowledge of Manion’s activities from a point about 40 feet south of the tracks before the collision. Manion went right on from the fence and did not look again as lie crossed the series of tracks. There were no other railroad cars spotted on any tracks east of the crossing, nor were there any other obstructions on the right-of-way to vision to the east, although there was some lumber etc. material of the Case Company piled against its side of the wire fence on the south edge of the right-of-way which might have been a partial obstruction to vision to the east. Manion’s jeep was struck when he arrived at the third or most northerly track north of the fence. He says he did not see or hear the westbound engine approaching from the east before he was struck. Griffith says he heard no bells or any other sound and saw no lights of the approaching engine, though there is evidence the engine headlights were on.

Manion had been bawled out by the Case Company several times before for not stopping at the tracks and looking before crossing, as required by the safety rules of the Company, and he admitted that a partial view of the tracks to the east was possible even in the area between the buildings lying to the south of the fence and the right-of-way.

There were some exterior lights on the Case Company buildings, north and south of the tracks, which were apparently turned on, which shown out over the area adjacent to the building to the south from which Manion emerged towards the tracks and over the area adjacent to the building to the north across the tracks, and which some witnesses said also tended to throw some light over the whole areaway at the crossing and on either side of the tracks, and some said that there was sufficient light at the crossing for visibility, — one of the intervenor’s witnesses described the visibility on the right-of-way as “fair”. The building to the south on which one or more of those exterior lights were affixed was evidently about 92 feet south from the most northerly track where the accident occurred, and it appears from one of the photographs in evidence that between that building and the tracks and extending westerly from the gate in the mesh wire fence was a solid wooden fence, piled against which on the Case side was a large amount of coal or other material, some of it being higher than the wooden fence. The building to the north on which one or more of those exterior lights were affixed would appear from the photographs to be 30 feet- or so north of the most northerly track and the points on that building where such lights were placed were evidently, respectively, some 40 to 50 feet west and some 70 to 80 feet or -more west of the point of the accident and those lights were .not pointed towards the crossing. The primary purpose of the exterior building lights was evidently, as the Case Company’s plant inspector said, to light up the plant yards, and they were evidently particularly focused on the yards and not particularly, but only incidentally, if at all, on the inter-plant railroad crossing. Manion said those lights did not shed light all the.way across the crossing, and he was not sure'they were on that night. Griffith said there were no lights on the crossing area itself, the building lights did not light up the tracks at the crossing, it was very dark, and he could not see the roadway without the lights on the jeep he was driving. The weather was apparently clear.

Manion knew of the railroad’s automatic crossing bell located on the right-of-way. north of the northernmost track and somewhat east of the crossing, but he did not hear any bell .ringing before the accident. The bell had been there a long time. Its purpose was to aid in protecting the crossing for the Case Company employees and anyone else using the crossing. When in operation that bell would ring upon a train’s approaching within 100 to 200 feet of the crossing. He knew generally the time during the night shift when the railroad switch engine came in; he was travelling only about three miles per hour after leaving the fence until he was hit-; but he did not see or hear the approaching train. Manion was aware of the Case Company safety rules, which were posted, and which required the use of only safe equipment, and prohibited the use of defective equipment, which was to be promptly reported for repair, although apparently the company had no policy of inspecting the jeeps before they were used to see whether they were properly equipped. He had never complained to anyone in the company- that he did not have lights on his jeep, or that they were defective. He had no previous notice that the automatic bell at the- crossing was out of order or disconnected prior to the accident, and in the two or three weeks before the accident he had not noticed whether it was working or not. The bell had, in fact, been disconnected by the railroad company some 30 days prior to the accident- and was not working at the time. There is some evidence, which we shall later refer to more particularly, to the effect that the intervenor had actual knowledge of the disconnection of the bell prior to the accident, but there is also evidence directly to the contrary. In any event, there was no notice on the company bulletin board that the bell was not operating, and the employees customarily relied on- the bulletin board for an indication of things that were not safe.

The Case Company evidently considered that warning bell of some importance because the general foreman said that if he had known it had been disconnected by the railroad such fact would have been noted on the bulletin board, and-the safety engineer of the company said he was, of course, interested in knowing whether the bell was in proper operation or not- and if he had known of its disconnection he certainly would have made inquiry relative thereto. Under the circumstances, the fact the bell was not operative at the time can hardly be said, as the intervenor urges, to have had nothing to do with the accident; nor is it quite accurate to believe Manion did not in part rely upon such; nor is the importance thereof to be properly minimized, as the intervenor now urges, by the circumstance that Manion did in fact stop and look before crossing, — the jury could well have concluded that Manion would have not only stopped but remained stopped and never crossed at all if the bell had been operative, — particularly in view of the fact this crossing was admittedly one of the most dangerous spots in the plant and the Case Company was admittedly in fact, as it was in law, concerned with and interested in the safety of its employees going between the several parts of the plant and in the safety of the crossing.

The general foreman of the company had been in the neighborhood of the bell and crossing probably 50 times a day in the month prior to the accident, saw trains approaching, but did not know the bell was not operating. The plant inspector of the company may have been at the crossing many times in the month prior to the accident but he could not remember whether the bell was ringing or not. The safety engineer of the company was over this crossing at least once a day prior to the accident, but did not know the bell was out of operation.

The Trial Court proceeded upon the theory, properly, that there could be more than one proximate cause of these injuries, that they may have resulted from the joint, concurrent, or combined negligence of the employer, or its employees (excluding Manion), and the third party railroad, and that the prior finding of the jury against the railroad did not preclude a finding also against the Case Company under the pleadings presently before the Court: Manion v. Chicago, R. I. & Pac. Ry. Co., supra. The burden of proof, as we’ve said, in this particular proceeding was upon the intervenor, Case Company, to establish affirmatively by a preponderance of the evidence its and its employees’ (excluding Manion) freedom from negligence which was a proximate cause of the injuries.

First, then, was the evidence sufficient for the jury to find, as it did, against the intervenor and to the effect that there was some act or acts of commission, or omission, on its part or on the part of its employees (excluding Manion) which constituted negligence which was a proximate cause of the injuries to Manion, or, perhaps more accurately stated under the statute, was the evidence sufficient for the jury to find, as it did, that the intervenor did not show by a preponderance of the evidence that the injuries were not proximately caused by its or its employees’ (excluding Manion) negligence?

Only where there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for directed verdict or for judgment notwithstanding the verdict: Lindroth v. Walgreen Co. et al. (1950) 407 Ill. 121; Neering v. Illinois Cent. Ry. Co. (1943) 383 Ill. 366; Blumb v. Uetz (1937) 366 Ill. 273; Bonnier v. Chicago, B. & Q. Ry. Co. (1954) 2 Ill.2d 606; Tennant v. Peoria & Pekin Union Ry. Co. (1943) 321 U. S. 29, 88 L. Ed. 520. Where a law case is tried by a jury and the evidence is conflicting we cannot, as an original matter, weigh and determine on which side the preponderance of the evidence lies and enter an original judgment on our consideration of the evidence contrary to the verdict of the jury: Phillabaum v. Lake Erie & Western Ry. Co. (1924) 315 Ill. 131. 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 be the most reasonable inference: Lavender v. Kurn (1945) 327 U. S. 645, 90 L. Ed. 916.

What is a proximate cause of an injury is ordinarily a question of fact, to be ascertained and settled by the jury from a consideration of all the evidence and attending circumstances, — it can arise as a question of law only when the facts are not only undisputed but are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from the facts: Phillabaum v. Lake Erie & Western Ry. Co., supra. The alleged negligent act or omission must be one of the essential causes producing the injury, but it need not be the sole, or last, or nearest cause; it is sufficient as a proximate cause if it concurs with some other cause acting at the same time, and in combination with it causes the injury: Thomas v. Chicago Embossing Co. (1923) 307 Ill. 134. An intervening, efficient cause is a new and independent force, the intervention of which was not probable or foreseeable by the first wrongdoer, which breaks -the causal connection between the original wrong and the injury and itself becomes the sole direct and immediate cause of the injury: Phillabaum v. Lake Erie & Western Ry. Co., supra; Neering v. Illinois Cent. Ry. Co., supra. The intervention of independent, concurrent, or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable: Neering. v. Illinois Cent. Ry. Co., supra.

• As to the intervenor’s motion for new trial, insofar as general evidentiary matters are concerned, the determination of the weight and preponderance of the evidence, the credibility of the witnesses, and the drawing of legitimately possible and reasonable inferences and conclusions from the facts in evidence fundamentally are jury' functions, with which we will not interfere unless the verdict is against the manifest weight of the evidence or the inferences drawn are unreasonable.

A master must use reasonable care to furnish his servants with a reasonably safe place .for the performance of their work, and he is responsible for the negligent performance of such duty, whether he undertakes its performance personally or through another person; the master is responsible where the circumstances are such that by the exercise of due care he ought to have had notice of the defective condition, whether he had actual notice or knowledge or not: Missouri Malleable Iron. Co. v. Dillon (1903) 206 Ill. 145; John S. Metcalf Co. v. Nystedt (1903) 203 Ill. 333. A master must also use ordinary care to provide the employee with reasonably safe appliances or equipment with which to work; this duty and 'the duty to use reasonable care to furnish a reasonably safe place for the work are personal, and if the employer delegates their performance to someone else he is responsible for the manner in which they are performed; these duties may require inspection at reasonable intervals of the place or equipment, and the duty of inspection rests upon the employer and not upon the employee: Armour et al. v. Brazeau (1901) 191 Ill. 117. That a particular place where the employee is required to work is dark and the terrain uneven, if such are the facts, may constitute an unsafe working place contributing in part to an employee’s injury, even though the area is. not owned by the employer but is part of a public street: Lavender v. Kurn et al., supra. A railroad company employer has a duty to use reasonable care ,to see that- the tracks which it • uses are safe, whether the tracks are owned by it or not; where an employee of such a company is directed to use the tracks of another company in the business of his employer he may for this purpose treat the tracks as the tracks of his employer; his employer under such circumstances owes the employee a duty to use reasonable care to see that the tracks, even though not owned by it, are not in a condition which will unnecessarily endanger the employee: Wisconsin Central Ry. Co. v. Ross (1892) 142 Ill. 9. The master’s duty includes using reasonable care to see that an independent contractor does not, to the knowledge of the employer, by his negligence render unsafe the place where the employee is required to work; and if the employer knows or in the exercise of reasonable care should know of a defective or unsafe condition caused initially by the independent contractor and nevertheless requires the employee to continue to work where he is exposed to injury because thereof, the employer is responsible to his employee: Raxworthy v. Heisen (1916) 274 Ill. 398. This is not to-say the employer is responsible for the negligence, as such, of the independent third party, or for some suddenly occurring negligent act of the independent third party, or for some cause created by the third party which the employer did not know of, actually or constructively, or could not in the exercise of reasonable care have anticipated. But the employer cannot simply throw up his hands and abdicate or disclaim any responsibility for the safety of the employee’s place of work merely because that place is owned by someone else or merely because one of the circumstances which may make it unsafe is caused in the first instance by someone else. The employer has a duty of his own in the premises and is responsible for his own negligence.

The evidence, conflicting as it was in some respects, and the reasonable inferences which might be drawn therefrom, presented to the jury, we believe, proper questions as to whether Manion’s jeep was equipped with lights which were capable of being operated, i.e., whether the intervenor had furnished its employee with reasonably safe equipment with which to work and perform Ms duties, — a duty upon the intervenor employer which it could not effectively delegate, and which might reasonably require inspection thereof at reasonable intervals; whether the intervenor’s factory yard, the inter-plant crossing and, particularly, the point of this accident, and the immediately adjacent area, were reasonably adequately lighted, and whether the intervenor actually knew, or reasonably should have known and exercised ordinary care to ascertain that the warmng bell had been for some time disconnected, and to notify its employee thereof or take such other steps as that circumstance might indicate to be reasonable and proper, i.e., whether the intervenor had furnished a reasonably safe place for its employee to work and discharge his duties; and whether Griffith, the other Case Company employee, was himself negligent as to Manion in the manner in which he drove the other jeep preceding Mamón (which, if found to exist, would, of course, not only be negligence as to Griffith, the intervenor’s employee, possibly, under the statute, sufficient in itself as a proximate cause to bar recovery by the intervenor here, but also, under principles of respondeat superior, negligence as to the Case Company in tMs particular case). We believe the jury could, under the circumstances, reasonably and properly find from the evidence that the intervenor had not, by a preponderance of the evidence, proven its ultimate freedom of itself and its employees (excluding Manion) from negligence proximately, in part, causing Manion’s injuries.

This is not a case such as Storen v. City of Chicago (1940) 373 Ill. 530, or Seith v. Commonwealth Elec. Co. (1909) 241 Ill. 252, referred to by the intervenor, the facts in neither of which resemble the case at bar, where a negligent act or omission does nothing more than furnish a mere condition making an injury possible, and such condition, by the subsequent act of a third person, causes an injury, the two acts being not concurrent, in which circumstances the existence of the mere condition is not the proximate cause of the injury. Nor are the railroad crossing cases of Greenwald v. Baltimore & Ohio Ry. Co. (1928) 332 Ill. 627, Grubb v. Illinois Terminal Co. (1937) 366 Ill. 330, or Carlin v. Grand Trunk Western Ry. Co. (1909) 243 Ill. 64, cited by the intervenor, helpful to it here, — the facts in each were much different than here, the particular problem and issue involved was not the same, and it may be observed that in only one, the Greenwald case, was the alleged negligence of the injured claimant considered to be a question of law requiring a directed verdict, — in the others, the Grubb and Carlin cases, the question was held to be a question of fact for the jury’s consideration. The jury here may, in part, have concluded that the fact the warning bell was not ringing amounted to an invitation to Manion to proceed and an assurance that he could cross in safety: Humbert v. Lowden (1944) 385 Ill. 437.

Second, did the Court err in admitting certain testimony of an attorney for the plaintiff-appellee? Bay Bowley, the safety engineer of the Gase Company was the last of several witnesses for the intervenor. On direct examination he said, among other things, that before the accident there was no report to him that the crossing warning bell was out of operation and he did not know it was out of operation. Bobert Graham, one of the attorneys for the plaintiff Manion, cross examined the safety engineer and the witness again reiterated that he did not know and had not been told the bell had been disconnected. Mr. Graham then called the witness’ attention to the fact he had some time before been subpoenaed as a prospective witness for Manion in Manion’s original trial against the railroad company, in which Mr. Graham also represented Manion, and he was then asked if he did not recall a conversation then with Mr. Graham in the Circuit Clerk’s office about the bell in which the witness had said the bell had been disconnected for almost a month, and the railroad had told him about it, so he did not think Mr. Graham would want to call him as a witness for Manion, — he did not think he could do Manion any good. The witness said he did not remember any such conversation, he would not definitely state he did not make the alleged statement, but he did not recollect it. Mr. Graham, one of the attorneys for Manion, then later testified as the last witness for Manion in this case, and he said that Mr. Rowley had made the foregoing statement, in substance, about the bell at the time and place indicated, and that following such Mr. Graham told him he would not be called as a witness for Manion in that prior case.

The testimony of an attorney for one of the parties is not incompetent or inadmissible just because he is such attorney, and the fact of his employment goes only to the weight of his testimony: Reisch v. Bowie et al. (1937) 367 Ill. 126; Hotze et al. v. Schlanser (1951) 410 Ill. 265. It has been suggested that, — aside from the legal competency thereof, — it is not necessarily improper for an attorney to so testify if the necessity of his doing so results from some unforeseen emergency event occurring in the progress of the trial: McKey v. McKean (1943) 384 Ill. 112. None of the cases cited by the intervenor, — Wilkinson v. People (1907) 226 Ill. 135, Flynn v. Flynn (1918) 283 Ill. 206, Grindle v. Grindle (1909) 240 Ill. 143, or Chicago Union Traction Co. v. Ertrachter (1907) 228 Ill. 114, hold that such testimony is incompetent or inadmissible or error or prejudicial error, — though most of them do, quite properly, discountenance and discourage such as a matter of general good practice. The testimony here of the attorney for the plaintiffappellee was, therefore, not incompetent or inadmissible, there was no error in admitting it, and the weight thereof was for the jury to determine in the light of all the pertinent circumstances.

Third, did the Court err in refusing certain instructions for the intervenor and in giving certain instructions for the plaintiff?

The intervenor complains of the plaintiff Manion’s given instructions Nos. 2 and 6.

No. 2 was as follows:

“The jury are instructed that any admission which may have been proved to have been made by J. I. Case Company or its agents are proper for the jury to consider in arriving at your verdict, and you will give any admission, if any, thus proved, such weight as you may think them entitled to.”

No. 6 was as follows:

“The Court instructs the jury that a person or corporation engaged in a business dangerous to the lives or limbs of its employees, must exercise reasonable care and caution in conducting its business commensurate with the danger, and as the danger increases, the care and caution to prevent or avoid such danger, must also proportionately increase.”

The intervenor says No. 2 could only have referred to the supposed admission of its witness Mr. Rowley to Attorney Graham, and thus “compounded” the “consequences” of Mr. Graham’s testimony, and emphasized a particular portion of the evidence, focusing the jury’s attention on Rowley as having made a disastrous admission. There were other matters in evidence besides that which might be considered as admissions by the intervenor, such as that it knew the railroad was doing some repair work at the crossing in the month prior to the accident, that Manion had to use this crossing when necessary in the discharge of his duties, that it was probably one of the most dangerous spots in the plant, that the intervenor was concerned with and interested in the safety of its employees going from one part of the plant to the other and in the safety of the crossing, that when empty the jeeps made considerable noise in going over the tracks, that the exterior lights on the building to the north of the tracks were not pointed towards the crossing, that the primary purpose of the exterior lights was evidently to light up the plant yards and not particularly the inter-plant railroad crossing, that there was no notice on the bulletin board that the bell was not operating, that the employees customarily relied on the bulletin board for an indication of things that were not safe, that if it had known the bell was disconnected such fact would have been noted thereon, and the circumstances as to its general foreman’s, plant inspector’s, and safety engineer’s familiarity with the crossing prior to the accident from which the jury may well have inferred an implied and constructive knowledge by it of the disconnection of the bell. "We cannot say this instruction unduly emphasized only Mr. Rowley’s and Mr. Graham’s testimony. The intervenor refers us to no authority to the effect it is erroneous. So far as we can perceive it is accurate: Hemphill, Ill. Jury Inst. Vol. 1, p. 146; Howard v. Babcock (1859) 21 Ill. 259. There was evidence upon which to base it. Further, the intervenor’s given instruction No. 1, which we shall not set out in full, referred to the testimony of the company’s employees and that was an additional justification for the giving of the plaintiff’s instruction No. 2.

The intervenor says No. 6 states an impossible rule of law, imposes an unwarranted burden on the intervenor, and has no foundation in the pleadings or evidence. The intervenor’s amended and supplemental intervening petition alleged, necessarily generally, under the statute, that the plaintiff’s injuries were not proximately caused by its or its employees’ negligence, and the plaintiff’s answer simply denied those allegagations. The burden under this statute to so plead and prove was on the intervenor. There was no obligation on the plaintiff to do more by his pleading than he did. He was not required under the statute to assume the burden of pleading and proving any particular allegation of negligence by the intervenor or its employees. This instruction is within the general scope of the pleadings. This railroad crossing was an inter-plant crossing, running between several buildings of the intervenor’s business plant, Manion had to use it when necessary in the discharge of his duties, the intervenor’s own safety engineer characterized it as probably one of the most dangerous spots in the plant, the jeeps when empty necessarily made considerable noise in going over the tracks, the exterior building lights on the buildings to the north were not pointed towards the crossing, the primary purpose of the exterior lights was evidently to light up the plant yards and not particularly the inter-plant crossing, the crossing warning bell was disconnected, the intervenor may have had actual knowledge thereof or may have had constructive notice and knowledge thereof, and no notice thereof was on the bulletin board. Under those and the other circumstances in evidence this instruction had a foundation in the evidence. It is generally recognized that railroad crossings are dangerous places: Greenwald v. Baltimore & Ohio Ry. Co., supra; Carlin v. Grand Trunk Ry. Co., supra. Again, the intervenor refers us to no authority that it is error to give such instruction in these circumstances, — Ratner v. Chicago City Ry. Co. (1908) 233 Ill. 169, does not so hold. An almost identical instruction was given and approved in Quincy Gas & Electric Co. v. Bauman (1902) 104 Ill. App. 600, affirmed 203 Ill. 295; Hemp-hill, Ill. Jury Inst., Vol. 1, p. 517; Vol. 2, p. 274. The instruction refers to nothing which does not have some reasonable basis in the evidence.

The intervenor complains of the refusal of its offered instructions Nos. 5, 6, and 7.

No. 5 was as follows:

“The Court instructs the jury that where an injury is claimed to be the direct or proximate result of negligence, the injury must be the natural and probable result of the negligent act or omission charged, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of such negligence, although it is not necessary that the said person should have foreseen the precise injury which might result from his act. If the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by reason of the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury.”

No. 6 was as follows:

“The Court instructs the jury that even though you may believe from the evidence that the J. I. Case Company maintained a condition within its plant at and near the railroad crossing in question in this case, and that the maintenance of said condition was, under the instructions in this ease, negligence, if you so find from the evidence, nevertheless, if you further find that such condition did nothing more than furnish a condition or place where the accident could or did happen, but that the accident resulted directly and immediately from some act of negligence on the part of the Chicago, Rock Island and Pacific Railway Company, or its employees, then you are instructed that the mere furnishing of the condition by said J. I. Case Company could not, in and of itself, be sufficient to establish that the J. I. Case Company proximately caused the injuries in question to Richard L. Manion.”

No. 7 was as follows:

“The Court instructs the jury that if you find from the evidence in this case that the claimed negligent act or omission, if any, of the J. I. Case Company, did nothing more than furnish a condition which made the injury of Richard L. Manion possible, and that such condition, by reason of the subsequent act or omission of the Chicago, Rock Island and Pacific Railway Company, resulted in the accident and injury in question here, then you are instructed that the mere existence of the condition as furnished by the J. I. Case Company was not the proximate cause of the accident in question, and it would be your duty to find the J. I. Case Company not guilty.”

Each of these offered instructions substantially directed a verdict, and when an instruction is of that type it should state all the essential facts and conditions, which none of them did: Ratner v. Chicago City Ry. Co., supra. It is not necessary or proper to encumber the record with several instructions covering the same matters, differing only in verbiage; except for the first sentence of No. 5, each of these were, in effect, simply changes in verbiage from the others, and would have tended rather to confuse than enlighten the jury: Coal Creek Drainage & Levee District v. Sanitary District of Chicago (1929) 336 Ill. 11. The intervenor refers us to no case in which an instruction or instructions of that type have been given and approved or in which the refusal to give such has been held error or reversible error. There is, of course, a general principle that if a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent act of a third person, causes an injury, the two acts are not concurrent, and the existence of the condition, under such circumstances, is not the proximate cause of the injury: Storen v. City of Chicago, supra, and Seith v. Commonwealth Electric Co., supra, cited by the intervenor, though the facts in neither resemble the case at bar. That principle is a part of the law of proximate cause and intervening, efficient cause. The offered instructions ignore a considerable amount of evidence to the effect that, and from which the jury might find, the defendant’s alleged acts or omissions amounted to something considerably more than merely furnishing a condition making an injury possible, but constituted more active ingredients currently operating to cause, in part, the injuries, and to the effect that the acts of the railroad or Manion were not necessarily “subsequent” and noncurrent, in the sense of the general principle, but could well have been found to be concurrent and contemporaneous with the intervenor’s own acts or omissions as they may have been found from the evidence. Where the circumstances are such that the injurious consequences might reasonably have been foreseen as likely to result from the first allegedly negligent act or omission, the act of the third person which is alleged to be an intervening cause will not excuse the first alleged wrongdoer: Seith v. Commonwealth Electric Co., supra. Under the circumstances, the offered instructions would have been confusing, incomplete, and misleading. Further, the intervenor’s given instructions Nos. 5, 6, 8, and 10 adequately and fairly informed the jury on negligence and proximate cause.

The judgment will, accordingly, be affirmed.

Affirmed.

DOVE, P. J. and EOVALDI, J., concur.


source: Caselaw Access Project

author: JUSTICE EOVALDI

license: Public Domain

text:
    Mary M. Parrucci and Fernando Parrucci, Plaintiffs-Appellees, v. Elroy E. Kruse, Defendant-Appellant, Anna Lomedico, Defendant-Appellant.
    Gen. No. 10,972.
    Second District.
    November 9, 1956.
    Released for publication November 28, 1956.

      Carbary and Carbary of Elgin, for appellant, Anna Lomedieo; George D. Carbary and Pañi M. Hamilton, both of Elgin, of counsel. Sears and Streit of Aurora, for Elroy Kruse, appellant; Robert F. Casey, of Aurora, of counsel.
    Kramer & Kramer of Elgin for plaintiffs-appellees, Mary Parrucci and Fernando Parrucci; Robert B. Kramer of Elgin, of counsel.
   JUSTICE EOVALDI

delivered tbe opinion of tbe court.

This action was brought to recover damages for personal injuries sustained by plaintiff, Mary Parrucci, arising out of an automobile collision which occurred at an intersection in the City of Elgin. Plaintiff, Fernando Parrucci, also brought suit as the husband of Mary Parrucci and sought certain damages by reason of the relationship.

Mary Parrucci was a passenger in the automobile driven by defendant, Anna Lomedieo, and the suit is brought against Anna Lomedieo her host, and against Elroy E. Kruse, driver of a car which collided with them. The jury returned a general verdict for the plaintiff, Mary Parrucci, in the amount of eleven thousand ($11,000) dollars, jointly against both defendants, and for the plaintiff, Fernando Parrucci, in the amount of one thousand ($1,000) dollars. In addition, the jury returned a special interrogatory finding-defendant Lomedieo guilty of wilful and wanton misconduct. Defendant Lomedieo filed a motion for judgment notwithstanding the verdicts, and defendant Kruse filed a motion for judgment notwithstanding the verdict and for a new trial. All motions were denied and the court entered judgment upon the verdicts, from which this appeal is taken.

Anna Lomedico filed a separate suit against Kruse, now pending in the City Court of Elgin, which was the subject of a motion for consolidation filed in this case and denied November 10, 1955.

Plaintiffs’ original complaint, consisting of two counts, was filed August 5, 1954. An amended complaint was filed November 5, 1954 containing eight counts, six of which were subsequently withdrawn. The amended complaint alleges that plaintiff, Mary Parrucci, was riding as a guest in the car driven by defendant Lomedico northerly on Hill Avenue near the intersection of Hill with Summit Street, designated as Illinois State Route 58, and that said defendant was guilty of numerous acts of wilful and wanton misconduct, including the allegation that defendant Lomedico drove past and through a stop sign without stopping and that she failed to come to a full stop before entering the intersection. These allegations were withdrawn by counsel for plaintiffs on the day the case was called for trial.

Defendant Kruse was charged with various acts of negligence and carelessness in driving an automobile east on Route 58 approaching the intersection with Hill Avenue, including a specific allegation that he drove and operated his motor vehicle while under the influence of intoxicating liquor.

Count II of the amended complaint made the same general charges against both defendants on behalf of plaintiff Fernando Parrucci. Defendant Lomedico denied all allegations of wilful and wanton misconduct and denied that plaintiffs were entitled to recover from her. Defendant Kruse, by his answer, denied all allegations of negligence and denied that the plaintiffs were entitled to recover from him.

The errors relied on for reversal by appellant, Anna Lomedico, are that the court erred in denying her motion for directed verdicts and her motion for judgment notwithstanding the verdicts; that there was no evidence to support the verdict or the special interrogatory finding her guilty of wilful or wanton misconduct; that there was no evidence to support the judgment, and that the verdicts of the jury and the judgment of the court were contrary to the law and should be reversed.

Defendant Kruse’s theory is that there is no evidence of any negligence on his part; that the plaintiff was guilty of contributory negligence as a matter of law and accordingly, the trial judge should have directed a verdict in favor of said defendant. Furthermore, that the trial court should have granted defendant a new trial because of improper conduct of plaintiffs’ counsel and the trial court’s error in submitting to the jury various instructions on behalf of the plaintiffs.

This action arose out of a collision of two motor vehicles on July 25, 1954 at the intersection of Illinois State Route Number 58, also known as Summit Street, and Hill Avenue in Kane County at about 6:30 P.M. D.S.T. Mrs. Parrucci, who had never driven an automobile, was a guest of defendant Lomedico. She was a small person, about five feet tall, 44 years old, and weighed about 130-135 pounds. She had previously ridden with her neighbor, Mrs. Lomedico, on four or five occasions and she had found her to be a very careful driver.

Summit Street or Route 58 is a four-lane highway running in an easterly and westerly direction and is approximately 42 feet wide. Hill Avenue’ is a 36 foot paved highway extending in a northerly and southerly direction. West of Hill Street on Summit there is a dip of approximately 15 feet, which continues about one hundred or one hundred fifty feet before it levels off. There is a vacant lot on the southwest corner of Route 58 and Hill Avenue with about one hundred feet of frontage on Hill Street. This lot extends about one hundred fifty feet on the south side of Route 58. Except for the dip and foliage shown on plaintiffs’ exhibits, there were no obstructions to the views of the drivers of the motor vehicles which figured in the collision. Route 58 is heavily travelled and Hill Avenue is normally travelled. The speed limit on Route 58 is 35 miles per hour and on Hill Avenue 25 miles per hour. There is a stop sign on Hill Avenue about 8 to 12 feet to the south of the intersection, protecting traffic on Route 58 from northbound traffic on Hill.

At the time of the occurrence in question, defendant Lomedico was driving her Hudson sedan in a northerly direction on Hill Avenue on her way home. Plaintiff, Mary Parrucci, was riding in the front seat beside Mrs. Lomedico. Defendant Kruse was driving in an easterly direction on Route 58 towards the intersection of Route 58 with Hill Avenue. The testimony is very conflicting as to the accident. Mrs. Lomedico never saw the Kruse car and Kruse never saw her until about twenty or thirty feet away. Plaintiff, Mary Parrucci, testified that there was a stop sign at Hill Street and Route 58 and that it was on her side of the car; that the sign was eight, nine or ten feet from the south curbing of Route 58, almost directly across the street from the telephone post on the southwest corner; that Mrs. Lomedico stopped at the stop sign for about a minute and a half, and that plaintiff did not see the cars coming from the east going west; that she wasn’t paying attention; that she didn’t remember if there was anything to keep her from looking to the right or looking to the left as she sat in the car; that she just turned her head and all she could say was “Oh Annie”, that she saw a light car coming right at them and that at that time it seemed to her that the front of their car had progressed into the second lane of the intersection; that there was a big bang and she just glanced at Mrs. Lomedico and she slumped towards her and her head was bleeding; “that the car started to go real fast and it seemed like it went through, over the weeds and the pole and something there real fast; I could see a white house coming towards me real fast and then all at once there was a big flash. I felt something jar me and the next recollection I had after the big flash was like something burning me; I don’t know what. I do not know where I was at the time of that first recollection. I do not remember the ambulance. I remember I was on the ground. I do not remember anything at the hospital on that same day. I don’t know if it was the day after or two days after that I first recall consciousness and talking to anyone.” On cross examination she stated that she did not remember if she looked at all to the left or Dundee Avenue; that she did not pay any attention to the traffic on the highway as she sat there; that she remembered Mrs. Lomedico’s passing the first lane of travel on the south side of Route 58; that they went quite a way; that she thought she got past the second lane of travel on Route 58; that she could not give any period of time that she watched the car coming; that it was just like a flash coming; that she did not have an opportunity to observe the speed that it was coming; that Mrs. Lomedico was driving at a reasonable, ordinary rate of speed; that she was sure that Mrs. Lomedico was more than half way across Route 58 before she was struck; that she had never ridden through the intersection with Mrs. Lomedico before and had never come up Route 58.

Defendant Kruse was called by plaintiffs for cross examination under Section 60 [Ill. Rev. Stat. 1955, ch. 110, § 60]. He testified that he owned a 1951 Buick Super; that he owned a dental lab and also the High Bridge Tavern; that July 25, 1954 was a rather hot Sunday; that he drove out to the tavern about 10:00 in the morning; that he was very well acquainted with the section of Summit and Hill, having had occasion to pass through the intersection many times; that when he got to the tavern he checked business from the day before; that he had customers right away after twelve o’clock; that about ten minutes before opening time he had a beer — a Hamm’s, a short bottle; that the next shortie beer he had after the first one was maybe an hour later; that he had eight or ten shorties during the course of the afternoon starting with the one about ten minutes to twelve; “We shook dice for them to see who was going to buy. I did not drink any large bottles of beer in the course of the afternoon.” He testified further that he left the tavern about 6:30, Daylight Savings Time; that it was still light and it was a dry day; that he was coming home for dinner at 6:30; that it was about 2% miles from the tavern to his home; that Route 58 as it moves from west to the east is “relatively flat, and then it goes up an incline and you come up on another level and go into the intersection.” He testified that he stopped at the stop sign at Dundee Avenue and Summit Street; that after he got around the corner and started off he went 30 to 35 miles an hour; that he did not notice any cars coming from the east on Route 58 as he went east prior to the collision; that there were no cars ahead of him and none behind him; that he looked in both directions prior to the collision; that he continued at the same rate of speed into the intersection; that he was almost up to the intersection when he first saw the Lomedico car; that he slammed on his brakes as soon as he saw her and then he blacked out; that he would say it was about a hundred feet from the center of the intersection when he first looked to the left or right; that he thought his car struck the left front of the Lomedico car; that he didn’t see where the Lomedico car went: that he was knocked out for a while.

Norman D. Smith, a police officer employed by the City of Elgin for fifteen years, testified on behalf of plaintiffs that he was on duty, and that he and Officer Hendrickson investigated the accident, receiving the call at approximately 6:40 P.M. and arriving at the scene • approximately two minutes later; that it was a warm, humid, clear day; that there was nothing to obstruct visibility and pavements were dry; that they found the injured people in a car north of Summit Street and up against a house on the east side of Hill Street; two ladies were injured in the collision; one was in the car and one was lying on the ground alongside the car; Mrs. Parrucci had a fractured right ankle and numerous cuts around the head and face; that the ambulance arrived shortly after they got there and “We were able to give them just immediate first aid.”; and they then proceeded to get Mr. Kruse’s Buick out of Summit Street; that it was located in the west bound lane, facing in a northwesterly direction; sitting crosswise in the two lanes; that he had no direct knowledge that it had not been moved prior to the accident; that they talked to Mr. Kruse, who stated he was driving the Buick and that he had seen the other car just moments before the impact; that it was right on him. Officer Smith further testified that' he examined the intersection for skid marks and there were skid marks on-the inside east bound lane on Summit Street and they were approximately 33 feet; that he could not determine whether they were fresh or old skid marks; that he was not able to identify debris in reference to either of these automobiles; that Summit Street is approximately 42 feet wide, and Hill Street approximately 36 feet. “When we talked to Kruse in the back of the squad car, we noticed that he had been drinking, but were unable to determine how much he had been drinking mnd were unable to determine the effect of his drinking on his condition, due to the fact that he had received severe blows on the knees, in the collision. He wasn’t nnconscions. I don’t recall seeing any blows on his head or any marks on his head or bleeding.” Officer Smith further testified that “We were able to determine in the grass where the Lomedico vehicle had knocked off a guy wire to the telephone pole, and knocked down a fence which was east of the telephone pole, and were able to see the traces of the tire, marks across the lawn to the point of the impact where it hit the house.” He further testified that they inspected the intersection and found scattered glass in the intersection, also dirt and accumulation which might come from underneath a car; that he estimated it was about 130 feet from the northeast curb to the house against which the Lomedico car came to rest; that “We had a conversation with Mrs. Lomedico in the hospital. As we went to question her, the first thing Mrs. Lomedico said to us was: ‘Was there a stop sign and was I supposed to stop?’ When we informed her there was a stop sign there, we asked her if she did stop and she told us that she had stopped. She said she had allowed two or three cars to pass before she got to the intersection. That the cars referred to were west bound on Route 58.”

Defendant, Anna Lomedico, called by plaintiffs under Section 60, testified on cross examination that on the day in question she was driving a Hudson automobile and that she had been past the intersection of Summit Street and Hill Street about 6 or 7 times, but that she had never come up Summit Street into' the intersection; that she drove about 25 to 30 miles an hour as she came north on Hill Street; that she came to the stop sign at Summit and Hill and stopped; that the front bumper was about even with the stop sign; that she looked in both directions a couple of times before she started out; that she was almost across the street on Hill; “I seen the curb and all at once I heard a bang and that is all I know. I did not hear a horn before the impact. I did not sound my horn, I did not hear any squealing tires and the next thing I was unconscious.” On cross examination by the other defendant’s attorney, Mrs. Lomedico testified that she never knew there was a hill down to the left “as you look down Summit Avenue. I had looked every time I had gone over there and had been across it 6 or 7 times but never knew there was a hill there. I am about 5 feet tall. ... I never saw Mr. Kruse’s car. . . . I was almost across when I looked again to the left. That was the third time I looked to the left. I looked to the right again and started out. I didn’t see any car then either. The third time I looked to the left I was in the middle of the road. I didn’t see any cars then either. I can’t tell how far I was from the curb line. I could see the curb and I was getting close. I was across the center of the highway. I was almost across on Hill, I saw the curb on Hill, and all at once something hit me. I don’t know anything after that. I had not reduced my speed or applied the brakes. . . . I was not trying to beat anyone across. ... I think I had a pillow; that is because I wanted to see over the wheel.”

Under the state of the record as disclosed by the testimony of the respective persons who were involved in the collision, and under the recent holding of the Supreme Court in another guest case, Amenda v. Suits, 8 Ill.2d 598, 134 N.E.2d 811, we cannot substitute our opinions on controverted questions of fact for that of the jury. It is understandable that a jury and trial court, who had the opportunity of seeing and observing the witnesses, could reasonably conclude that the defendant Anna Lomedico was guilty of wilful and wanton misconduct. At page 813 of the Northeastern Citation, the court said: “That reasonable persons might differ as to this conclusion or that a court of review in weighing the evidence might differ is of no consequence.” In Bliss v. Knapp, 331 Ill. App. 45, this court discussed the duty of a passenger and the problem of contributory negligence and said that these were matters for the jury to decide.

As to the other defendant’s contention that it was error for the trial court to overrule the motions for a directed verdict and for judgment notwithstanding the verdict, suffice it to say that a motion for directed verdict or for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Seeds v. Chicago Transit Authority, 409 Ill. 566; Lindroth v. Walgreen Co., 407 Ill. 121, p. 130; Gorczynski v. Nugent, 402 Ill. 147, p. 156; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571, p. 576. We are not concerned with the weight or credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. Lindroth v. Walgreen Co., supra, p. 130. From the evidence most favorable to the plaintiffs, the jury had the right to take into consideration the amount of intoxicating liquors which defendant admitted he had consumed on the afternoon of the collision and its effect on his ability to drive properly. The jury had evidence of the speed at which Kruse was traveling; it had evidence of the fact that he was very well acquainted with the scene, having traveled over it many times. His evidence was that it was a clear, dry day and that he did not see Mrs. Lomedico until he was within about twenty feet of her. We hesitate to interfere with the findings of the jury or with the judgment of the court.

• Complaint is made by defendant Kruse as to three instructions given by the court on behalf of plaintiffs. Sixteen instructions were given by the court on behalf of plaintiffs; six on behalf of defendant Lomedico, and seventeen on behalf of defendant Kruse. When we consider all of the instructions which were given to the jury, we do not see how the three instructions complained of by defendant Kruse could have misled the jury, or how his rights were prejudicially affected in the giving of same. One of the instructions given on behalf of defendant Lomedico was as follows: “The instructions given to the jury are and constitute one connected body and series and should be so regarded and treated by the jury; that is to say, they should apply them to the facts as a whole and not detach or separate any one instruction from any or either of the others.” Principles of law missing in one instruction may be supplied by others. Allied Mills, Inc. v. Miller, 9 Ill.App.2d 87.

Objection is made by defendant Kruse to the closing argument of plaintiffs’ attorney as evidenced by the following:

“Closing argument by Mr. Kramer. The statement continues:
‘. . . Counsel for defendant, Kruse said Mr. Kruse was not intoxicated. Here is what eight to ten bottles of Hamm’s beer looks like.

(At this point Counsel for plaintiffs removed nine bottles of Hamm’s beer from a brief case, tied together with a rope, and exhibited same to the jury.)

‘Mr. Casey: I object to that and move that the Court instruct the jury to disregard it.
‘Mr. Kramer: Those are nine bottles just like the other bottle which is in evidence. It is the same thing.
‘Mr. Casey: I move that that be done.
‘The Court: I am going to sustain the objection. This is improper. These are not in evidence and the jury are instructed to disregard them.
‘Mr. Casey: I would like the record to show that Counsel has immediately produced out of his brief case certain things, being bottles of Hamm’s beer — I don’t know how many—
‘Mr. Kramer; They are the same as plaintiffs’ Exhibit No. 14.
‘Mr. Casey: — suddenly, without notice and without having them marked in evidence. "We certainly object to that. It is extremely prejudicial.
‘The Court: The objection is sustained and I am asking Counsel for the plaintiffs to put them away, out of the sight of the Jury.
‘Mr. Casey: I would like at this time to move to withdraw the case from the Jury and move for a mistrial.
‘The Court: We will retire to Chambers for' a few moments.’ ”

We (as the trial court did in its rulings) disapprove of plaintiffs’ attorney’s conduct. Should such be repeated, the trial court might be warranted in withdrawing a juror and declaring a mistrial However the trial judge took proper action in the matter, and furthermore instructed the jury at the request of said defendant Kruse as follows:

“If counsel for either party, in the course of his argument, makes any statement of fact which is not based on the evidence you must disregard such statements.”

Finding no reversible error in the record, the judgment of the city court will be affirmed.

Judgment affirmed.

DOYE, P. J. and CROW,.J., concur.....


author: JUDGE CARROLL

text:
    C. David Pearson, Plaintiff-Appellant, v. Board of Education, Community Unit School Dist. No. 5, Macoupin County, Defendant-Appellee.
    Gen. No. 10,051.
    Third District.
    November 19, 1956.
    Released for publication December 5, 1956.

      D. A. McG-rady, of Gillespie, for appellant.
    Rinaker, Smith. & Hebron, of Carlinville, and Elmer H. Droste, of Mount Olive, for appellee.
   JUDGE CARROLL

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court affirming the action of the Board of Education of Community Unit School District No. 5, in Macoupin County, in discharging the plaintiff, C. David Pearson, as a teacher for said district.

Plaintiff had been a teacher in the defendant district lor eight years and in May, 1954 had entered into a written contract to teach in said district for a period of nine months, commencing on the first day of September, 1954, at a salary of $4050 for the school year. At a special meeting of- the Board of Education held on September 3, 1954, plaintiff was discharged and was given written notice that he was suspended and discharged for the best interests of the school district. Plaintiff then requested and was granted a hearing-under the Teachers Tenure Law. Upon such hearing the Board adopted a resolution discharging plaintiff as of November 4,1954 and finding that the causes for such dismissal were not remediable and that the best interests of the district required his dismissal.

Plaintiff thereupon brought this action under the provisions of the Administrative Review Act to review the decision of the Board of Education.

One of the grounds relied upon for reversal is that plaintiff was not given proper notice of his discharge.

The defect which plaintiff contends renders the notice insufficient is the failure thereof to state a specific reason for his dismissal. It appears from the record that the dismissal notice insofar as it pertains to the reasons for the Board’s action contained the following:

“(a) It is the opinion of the members of the Board of Education of Community Unit School District No. 5 that the suspension and discharge become effective because the best interests of the schools require it.
“(b) Due to your uncontrollable temper you fail to have proper co-operation with the administrators, your fellow teachers and the students of Community Unit School District No. 5 High School.”

The question raised by plaintiff is whether this notice meets with the requirements of the Statute under which the Board exercised its authority to dismiss the plaintiff.

Section 24-3 of the School Code, Chap. 122, Illinois Revised Statutes, 1953, provides in part as follows:

“Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Sections 6-36 and 7-16, in the manner hereinafter provided. . . . If the dismissal or removal is for any other reason or cause it shall not become effective until approved by a majority vote of all members of tbe board upon specific charges and after a bearing,- if a bearing is requested in writing by tbe teacher within ten days after tbe service of notice as herein provided. Written notice of such charges shall be served upon tbe teacher at least sixty days before tbe effective date of tbe dismissal or removal . . .”

Under Section 6-36 [Ill. Rev. Stats. 1953, Cb. 122, § 6 — 36] tbe board of school directors has tbe power “to dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause.”

Section 7-7 of tbe Code [Ill. Rev. Stats. 1953, Cb. 122, § 7■ — 7] provides that tbe “Board of Education has all tbe duties of school directors as set forth in Article 6.”

Section 7-16 of tbe Code [Ill. Rev. Stats. 1953, Cb. 122, § 7 — 16] gives tbe Board “power to dismiss and remove any teacher, whenever, in its opinion, be is not qualified to teach, or whenever, in its opinion, tbe interests of tbe schools require it, subject, however, to tbe provisions of Sections 2A-2 to 24-7, inclusive.” Plaintiff while conceding that tbe Board followed tbe form of procedure required by tbe Tenure Act, argues that tbe notice of dismissal was defective in failing to recite tbe specific reasons which moved tbe Board to decide that tbe best interests of tbe school required plaintiff’s dismissal.

In tbe notice served upon plaintiff, tbe reasons given for bis dismissal were (1) because tbe best interests of tbe school required it and (2) that due to bis uncontrollable temper, be bad failed to cooperate properly with tbe administrators, bis fellow teachers and tbe students of tbe school.

Where a Board of Education dismisses a teacher on tbe ground that tbe interests of tbe school require such action, tbe dismissal is for one of tbe causes specified in Section 7-16 of the School Code. There can he no dispute as to the fact that plaintiff was entitled to notice as to the cause or causes for his removal. It follows that since he was notified that the Board was of the opinion that the interests of the school required his dismissal, there is no basis for the complaint that the Board did not rely upon a sufficiently specific cause. Such conclusion appears to find support in the opinion of the court in Hartmann v. Board of Education, 356 Ill. 577, where it was said: “We believe that a proper interpretation of the power of boards of education gives to them the power of removal and dismissal of teachers for cause and was not intended to bestow upon them power to arbitrarily or without cause dismiss teachers from their employment, and that the power to dismiss and remove any teacher ‘whenever, in the opinion of the board of education, he is not qualified to teach, or whenever, in the opinion of the board of education, the interests of the schools may require it,’ is but the specification of another cause of removal.”

Under the various sections of the School Code to which we have referred, a board of education in exercising its power to dismiss a teacher, is not confined to situations where certain specified causes exist. In addition to the power to dismiss for incompetency, cruelty, negligence, immorality and lack of qualifications, a board may also dismiss a teacher for other sufficient cause or whenever in its opinion the interests of the school require it. As to what may constitute “other sufficient cause” the Code appears to be silent.

Under these circumstances, determination as to whether failure of plaintiff to cooperate properly with the other teachers and students of the school as charged in the notice constituted a cause for dismissal was left to the discretion of the board. The rule applicable here is that given by the court in Joyce v. Board of Education of Chicago, 325 Ill. App. 543 where it is said:

“The question as to who shall determine what constitutes cause has frequently been presented to the court, and the rule to be deduced from the authorities is that where the statute is silent as to what constitutes cause, the right to determine the question is in the tribunal having, jurisdiction of the particular officer or employee.”

The board in the exercise of its discretionary power, having determined that the charge specified in the notice constituted sufficient cause for a dismissal of plaintiff, this Court is without power to override its judgment in that regard. As the court said in Muehle v. School Dist. No. 38, 344 Ill. App. 365:

“Appellant further contends that the evidence furnished by appellees is insufficient to show any grounds for dismissal. In this, we cannot agree. Even if it be assumed, for the moment, that a valid employment contract existed in this case, the applicable Illinois Statute (ch. 122, par. 6 — 36, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 123.810]) would require a conclusion contrary to that contended for by appellant. School directors are vested by that statute with authority to dismiss a teacher for, among other specified grounds, ‘other sufficient cause.’ It is axiomatic that such authority vests a discretion trammeled only by proof of that discretion’s abuse.”

Further, it may be observed that there appears to be no foundation for plaintiff’s complaint that the charge of failure to cooperate was not made sufficiently specific in the notice. The record discloses that plaintiff requested and was furnished a bill of. particulars which detailed numerous incidents alleged to be the basis of the charge made in the notice.

We think that in the notice the charges were made sufficiently specific to apprize plaintiff of the nature thereof and afforded him an opportunity to defend against the same.

Plaintiff further contends that the decision of the hoard is against the manifest weight of the evidence. In arguing for this proposition, it is pointed out that the board improperly refused to consider plaintiff’s written contract entered into in May 1954; that the board erroneously heard and considered evidence as to matters occurring during plaintiff’s employment in years prior to that beginning September 1, 1954; that if causes for’ dismissal existed prior to May 1954, then the board would not have renewed plaintiff’s contract and engaged him to teach for another year; that the board having given plaintiff his September 1954 contract, should have been restricted in determining if there was cause for his dismissal to evidence as to his conduct as a teacher under such contract; that the record indicates no violation of plaintiff’s contract but shows that he was discharged as the result of an incident occurring on September 2, 1954; that such incident was trivial in its nature and would be insufficient to constitute a basis for dismissing plaintiff.

No attempt will be made herein to detail at length the evidence in the record. It is sufficient to observe that witnesses testified concerning numerous meetings during the school year 1952-1953 between the teachers’ committee of the board and plaintiff; that these meetings were occasioned by complaints to the committee of the inability of plaintiff to maintain discipline in his classes and of numerous displays of temper on his part; that these complaints were discussed with plaintiff; that plaintiff admitted suffering from a nervous condition; that he promised the board he would see a doctor relative to such condition; that his condition did not improve and that he made no report to the board as to whether or not he had sought medical treatment. A substantial amount of testimony appears to have been given by faculty members and students as to the conduct of plaintiff during the school year 1953-1954. This testimony tends to show plaintiff to have been emotional and nervous and to have indulged in numerous outbursts of temper and that he did not maintain discipline in his classes. In general the testimony of the administrative heads of the school and the members of the board reflect an endeavor on their part to assist plaintiff in remedying his emotional condition. There is also testimony that at a school teachers’ meeting held on the 2nd day of September, 1954, which was the first day of the new school year, plaintiff, while discussing administrative policies with the principal and superintendent, became very nervous, emotional and angry and indicated strong disagreement with an order of the principal relative to disciplinary policy.

Before proceeding to any definite conclusion as to whether the decision of the board is manifestly against the weight of the evidence, consideration must be given to plaintiff’s contention that because he was employed under a written contract to teach beginning September 1, 1954, - evidence as to matters occurring prior to that date should not have been considered by the board.

Plaintiff argues that he was employed under a written contract and not tenure and that it was therefore incumbent upon the board to show a breach of such contract. This argument apparently proceeds from a misconception of the function of the Teacher Tenure Law. The purpose underlying the enactment of this particular legislation is pointed out by the Supreme Court in Donahoo v. Board of Education of School Dist. No. 303, 413 Ill. 422, where it is said:

“The Teacher Tenure Law was enacted primarily for the protection of Illinois teachers who, prior to its enactment in 1941, served at the pleasure of the boards of directors of education. Its object was to improve the Illinois school system by assuring teachers of experience and ability a continuous service and a rehiring based upon merit rather than failure to rehire upon reasons that are political, partisan or capricious. (Betebenner v. Board of Education, 336 Ill. App. 448).”

Admittedly, plaintiff was a teacher in contractual continued service. Upon being served with notice of the charges made against him, he requested a hearing in accordance with the provisions of the Tenure Law. This would seem to dispel any doubt concerning the fact that he regarded himself as a Tenure teacher. He rightly sought and received a hearing and admits in his brief that the board followed the procedure set out in the Tenure Law. Having entered upon contractual continued service, his employment as a teacher in the defendant district could have continued, barring dismissal, until the end of the term following his 65th birthday. Employment subsequent to that time would be on an annual basis. (Section 24r-2 of the School Code [Ill. Bev. Stats. 1953, ch. 122, § 24— 2]). Thus it is apparent from the Tenure Law and consistent with its purpose of assuring teachers of experience and ability a continuity of service that in applying said Law, the employment of those qualified thereunder is not regarded as being on an annual basis.

On the hearing, the question before the board was whether the service of plaintiff as a teacher should be terminated for the reasons or causes set out in the dismissal notice. Evidence bearing upon such issue, whether pertaining to an incident occurring on the 2nd day of September, 1954 or during prior years of plaintiff’s service, was properly admitted and considered by the board. The board was concerned only with the question as to whether there was sufficient cause for plaintiff’s dismissal, and on such questions his written contract was immaterial.

The Administrative Review Act provides that upon review, the findings and conclusions of the administrative agency shall be held to be prima facie true and correct. It is only where its decision is without substantial foundation in the record or manifestly against the weight of the evidence that the same will be set aside. Drezner v. Civil Service Commission, 398 Ill. 219; Community Consolidated School District v. County Board, 7 Ill.App.2d 98; Meridith v. Board of Education, 7 Ill.App.2d 477.

When all of the evidence in the record is considered, this Court cannot say that the board’s decision is contrary to the manifest weight thereof. Likewise, we are unable to agree with plaintiff’s contention that his dismissal constituted a capricious action by the board provoked by the single incident of September 2, 1954. On the contrary, the evidence indicates that the conduct -of plaintiff as a teacher had been a subject of no little concern to the • board for more than a year prior to its decision to dismiss him; that in dealing with complaints as to plaintiff’s conduct, the board appears to have exhibited an attitude of patience and evidenced willingness to cooperate with plaintiff in an attempt to remedy the defects giving rise to such complaints. There would appear to be no basis for the argument that the record indicates that the board acted impulsively and capriciously. The limits within which a court may properly interfere with the judgment of a school board that the best interests of the schools of its district will not permit the retention of a particular teacher has been recognized in many cases. In Meridith v. Board of Education, supra, we find the court commenting on the general authority of courts to interfere with discretionary decisions of school boards in this language:

“It was peculiarly a province of the Board of Education in the exercise of its discretion to determine whether the outside activities of the appellant had progressed to such an extent as to interfere with the performance of his duties as a member of the. teaching staff of the educational institutions under its direction. The best interest of the schools of the district is the guiding star of the Board of Education and for the courts to interfere with the exercise of the powers of the Board in that respect is unwarranted assumption of authority and can only be justified in cases where the Board has acted maliciously, capriciously and arbitrarily.”

Upon a careful review of all the evidence in the record, we are of the opinion that the decision of the board is not against the manifest weight of the evidence and that the Trial Court did not err in affirming such decision.

For the reasons indicated, the judgment of the Circuit Court of Macoupin County is affirmed.

Affirmed.


author: JUSTICE EOVALDI.

text:
    Gerald E. Virgo, for Use of Maxine Dockus, Executor of Will of William H. Young, Deceased, Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant-Appellee.
    Gen. No. 10,965.
    Second District.
    November 29, 1956.
    Released for publication December 15, 1956.
    William C. Hollerieh, Hollerieh & Hurley, for appellant; Zwanzig, Thompson & Lanuti, for appellee.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: PRESIDING JUSTICE FEINBERG

text:
    Sam Polito and Grace Polito, his wife, Frank M. Polito and Fannie Polito, his wife, and Joseph A. Polito and Josephine Elizabeth Polito, his wife, Appellants, v. Chicago Title and Trust Co., Appellee.
    Gen. No. 46,888.
    First District, Third Division.
    November 7, 1956.
    Released for publication December 28, 1956.

      Crowley, Spreeher & Weeks, and Samuel A. Kavathas, of Chicago, for appellants; Robert A. Spreeher, and Frank A. Karaba, both of Chicago, of counsel.
    Concannon, Dillon & Snook of Chicago, for appellee; William H. Dillon, of Chicago, of counsel.
   PRESIDING JUSTICE FEINBERG

delivered the opinion of the court.

Plaintiffs sued to recover damages for a breach of a guarantee policy, issued by the defendant, guaranteeing the title to certain real estate. Defendant’s motion to strike plaintiffs’ amended complaint was sustained, and the cause dismissed. Plaintiffs appeal.

The only question presented upon the appeal is the sufficiency of the amended complaint.

Plaintiffs rely upon the following material allegations of the complaint, as amended, to which a copy of the guarantee policy was attached as an exhibit: that plaintiffs, whose respective interests to the real estate described in said complaint, procured the guarantee policy from defendant, dated December 14, 1953; that subsequent to the issuance of the policy, plaintiffs procured a survey of the premises in question, which showed that a triangular parcel of the premises, with approximate dimensions of 30 feet by 30 feet by 43 feet, covering an area of approximately 450 square feet, was in the possession of one, Calcedonio Galiotto, whose possession thereof was shown of record: (1) in the records of the Circuit Court of Cook County on July 27, 1923, when a praecipe was filed in said court, and on September 7,1923, when a declaration was filed, and on September 13,1923, when the action was posted in the records of the clerk of the Circuit Court of Cook County in the case of Freda Lang v. Calcedonio Galiotto, case No. B 99997 C, in which case Freda Lang, then the owner of said premises, brought an ejectment action against Calcedonio Galiotto in order to eject him from said premises; (2) in the records of the Recorder of Cook County in Book 584F at page 168, line 10, where the following entry appears: “B 99997 C Freda Lang v. Calcedonio Galiotto, et al. Eject. Sept. 13, 1923. Lot 3 and W 10 ft. 2”; (3) in the records of the Recorder of Cook County in Book 584F, page 166B, showing a plat of John Caskellars Subdivision of Lots 23 to 26, inclusive, and indicating the premises in question, part of which is in the possession of Calcedonio Galiotto; and (4) in the records of the Chicago Title & Trust Company, defendants herein, in Book 108-3, page 119, line 49, showing case No. B 99997 C, Freda Lang v. Calcedonio Galiotto, September 13, 1923.

It is further alleged that on or about April 26, 1954, plaintiffs furnished defendant with a statement in writing of the loss and damage sustained by the plaintiffs; that plaintiffs do not have possession of, and, apparently due to the adverse possession of Calcedonio Galiotto, do not have title to the triangular parcel referred to, and have been damaged to the extent of the value of said parcel; that since purchasing the premises, plaintiffs, on or about December 14, 1953, made extensive improvements upon and to the property; that a plat of survey dated January 24, 1954, is attached to the complaint as exhibit “B,” and shows that a brick garage on lot 22, except the west 10 feet thereof, extends over and covers said triangular parcel, which triangular parcel is shown to be part of lot 3.

It is further alleged that the records described above show Calcedonio Galiotto to be the owner of lot 22, except the west 10 feet thereof. The case of Freda Lang v. Calcedonio Galiotto, No. B 99997 C in the Circuit Court of Cook County, was dismissed for want of prosecution on June 6, 1929. Book 584F of the records of the Recorder of Cook County is volume No. 584F of a set of books known as “Abstract Books,” which are described in Illinois Revised Statutes, 1953, Chap. 115, pars. 12, 19, 20 and 23. The plat in Book 584F, at page 166B, merely shows that the triangular parcel is part of lot 3.

Plaintiffs further allege that their failure to obtain fee simple title to the entire premises described in the guarantee policy from the defendant has also resulted in great damage to the remainder of the premises.

The guarantee policy provides:

“Chicago Title and Trust Company for valuable consideration, does hereby guarantee the person or persons named and the persons otherwise designated in item 1 of Schedule A against all loss or damage which the party guaranteed shall sustain by reason of defects in the title (which title is set forth in item 2 of Schedule A) of the person or persons named in item 1 to the real estate described in item 3 of Schedule A, or by reason of liens or incumbrances affecting the title, at the date of this policy, excepting only such defects, liens, incumbrances and other matters as are set forth in Schedule B.
U
“This policy is subject to the conditions set forth on the last page hereof, which conditions, together with Schedules A and B, are made a part of this policy.”

Among the General Exceptions in the policy, paragraph 2 thereof provides:

“The following matters which are not of record at the date of this policy are not guaranteed against: (a) rights or claims of parties in possession not shown of record, and questions of survey; . . .”

Paragraph 3 of the General Exceptions provides:

“The following matters relating to acts of the party guaranteed, or assumed by or known to said party, are not guaranteed against: . . . (b) rights or claims not shown of record at the date of this policy if bn own to the party guaranteed at the date of this policy or at the time said party acquired the title, estate or interest guaranteed; . . .”

The instant complaint does not disclose that any summons was issued or served, or what the complaint filed in the ejectment suit disclosed as to possession by Galiotto, or what his claim or rights were; nor does the instant complaint allege that any answer by Galiotto was filed in the ejectment suit disclosing any claim or right by him. The complaint does disclose that the ejectment suit in question was dismissed for want of prosecution on June 6, 1929, twenty-four years prior to the issuance of the policy sued upon. Even if the records set up in the complaint disclosed possession by Galiotto of the triangular parcel, that would not bring it within the guarantee of title in the policy. The exception in the policy is specific and not ambiguous. It definitely provides that the policy does not guarantee title against “(a) rights or claims of parties in possession not shown of record.” It follows that what the record must show is not merely possession but the rights or claims of the party in possession. The complaint fails to allege that the records relied upon disclose what the rights or claims of Graliotto were at the time of the issuance of the policy.

The Civil Practice Act, Ch. 110, § 1, Ill. Eev. Stats. 1955, provides:

“The provisions of this Act apply to all civil proceedings, both at law and in equity, in courts of record, except in attachment, ejectment, .... In all those proceedings the separate statutes control to the extent to which they regulate procedure . . . .”

The Ejectment statute, Ch. 45, § 9, provides:

“The action of ejectment shall be commenced by a summons, which shall be in like form, and be issued, tested, served and returned as summons in other civil cases.”

In the absence of any allegation in the instant complaint, showing that a summons was issued and served upon defendant Graliotto in the ejectment suit, or that an answer was filed by him setting up his claims or rights, the doctrine of lis pendens and consequent notice of record does not apply. Allison v. Drake, 145 Ill. 500; People v. City of Chicago, 299 Ill. App. 504, 508; Marshall v. Solomon, 335 Ill. App. 302, 308.

A suit dismissed for want of prosecution twenty-four years prior to the issuance of the policy ceases to be constructive notice under the doctrine of lis pendens. Allison v. Drake, supra; Herrington, et al. v. McCollum, 73 Ill. 476, 483; Eldridge v. Walker, 80 Ill. 270. If it does not constitute constructive notice of any right or claim, then it is not shown of record. Allison v. Drake, supra, pp. 515, 516.

From a careful reading of the. entire policy, we are also confronted with the provisions found in paragraph 3 of the General Exceptions. If plaintiffs’ contention be correct that the records referred to, including the ejectment suit, sufficiently disclosed possession by Galiotto, and even if it be conceded for the sake of argument that such disclosure of record is sufficient disclosure of the rights or claims of Galiotto in possession, plaintiffs cannot escape the exception provided in paragraph 3, which would exclude the right of plaintiffs to recover upon the guarantee policy.

When plaintiffs contracted for the purchase of the premises in question, and when they acquired title, it was their bounden duty to inquire of the person in possession (Galiotto) by what tenure he holds and what interest or claims he had in the premises. The purchaser cannot excuse himself by merely obtaining information as to how possession was obtained, or inquiring of the grantor or of other persons as to the rights of the person in possession, but he is bound to inquire of the person in possession by what tenure he holds and what interest he claims in the premises. Open possession is sufficient to charge such purchaser with knowledge of all legal or equitable claims of the occupant, which could have been ascertained by such inquiry. Ambrosius v. Katz, 2 Ill.2d 173, 182, and cases there cited. Feldman v. Cipolla, 7 Ill.App.2d 448, 450. In Joiner v. Duncan, 174 Ill. 252, 257, it was stated:

“Actual possession of land is notice equal to the record of a deed under which the party in possession claims . . . .” (Followed in Feldman v. Cipolla, supra.)

The judgment of the Circuit Court is correct and is affirmed.

Affirmed.

KILET and LEWE, JJ., concur.