author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Appellee, v. Willie A. Nevith (Impleaded), Appellant.
    Gen. No. 52,743.
    First District, First Division.
    November 25, 1968.

      Edward E. Yalowitz, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Willie A. Nevith, was charged with committing the offense of robbery in violation of section 18-1 of the Criminal Code (Ill Rev Stats 1967, c 38, § 18-1). He pleaded not guilty, waived a jury trial, and upon being found guilty was sentenced to a term in the state penitentiary of not less than one year or more than eight years.

The defendant filed a direct appeal to the Illinois Supreme Court and that Court transferred the case to this Appellate district. On appeal, the defendant contends that “the evidence was not sufficient to sustain the verdict” and that he “was deprived of a fair trial in that he was represented by incompetent trial counsel.”

A summary of the evidence is necessary in order to determine whether there was sufficient evidence to sustain the defendant’s conviction. The record reveals that the complaining witness, Fortunata Stalica, was walking on Dickens Avenue near California Avenue on her way home at 11:00 a. m. on January 14, 1963, when two men tried to force her into a car parked half in and half out of an alley. One of the men pushed her against the wall and the other man pressed a “fork” against her face and took her purse containing $15 and some other articles. Mrs. Stalica testified that the two men were in her presence for three or four minutes in which time both men were very close to her. In fact, she said that she first noticed the men when “ [w] e were just face to face.” She described the men to the police as wearing “regular army clothes — brown Eisenhower jackets. . . .” She said that they got into a green car, which was more or less like junk, and drove off. On cross-examination she testified that she told the police that the two men were about her height and young. She did not remember whether she told the police the make of their car. Mrs. Stalica then testified that after the robbery she drove around the neighborhood with the police in an unsuccessful attempt to find the men. That afternoon, however, she saw the two men at the police station and she identified the defendant and his codefendant, Nathaniel Burr, as the men who had robbed her. She testified that she did not remember the color of the jacket that defendant Nevith was wearing at the police station, but that defendant Burr’s jacket was brown.

Police Officer Chester Soral testified that he drove the complaining witness around the vicinity of the robbery in an attempt to identify the type of car used by the men who robbed her. The officer said that “she pointed out a car — the type that we are supposed to be looking for, which was a green car.” At 1:45 p. m. the same day of the robbery, Officer Soral testified that he saw a “1953 Chevy, green color — the dirty car I was looking for” about a mile from the scene of the robbery. He called for extra police help and later observed that the two occupants of the car were wearing army clothes and Eisenhower jackets. He identified the two men he saw in the car as the defendants. Officer Soral then stated that both men were identified by the victim shortly thereafter in the police station. On cross-examination he testified that the police neither found any money nor the “fork” in the possession of the defendants. He also said that both defendants denied being the robbers.

Four witnesses testified to the whereabouts of the defendants on the day in question. J. T. Sherrod, who had a used tire shop, testified that he knew both defendants and that he saw them pass his shop about 8:15 a. m. At 12:00 p. m. he stated that he saw them in a tavern owned by Joseph Nadler.

Willie Littlejohn testified that some time between 12:00 and 1:00 p. m. he saw the defendants in Nadler’s tavern. He said that he gave them $2.50 to get him some oil and that he also gave them $1 extra to get themselves some gasoline. Mr. Littlejohn said that they did not return.

James Green testified that he knew Nathaniel Burr, the codefendant, all of his life and that he knew Nevith about five years. He stated that he saw the codefendant, Burr, standing outside Nadler’s tavern about 10:45 a. m. and that both he and Burr were inside the tavern at 11:00 a. m. When Mr. Green left the tavern at about 12:00 p. m., he said both defendants were still inside the tavern.

Joseph Nadler testified that he was the owner of a tavern at 2200 West Division Street. He stated that he had known the defendants since he had opened his tavern six months before. Mr. Nadler said he saw the defendants in his tavern from 9:00 or 9:30 a. m. to at least five minutes before noon when he left to go to the bank. On cross-examination he said the defendants “were dressed in working clothes. I wouldn’t say Army clothes.”

The defendant, Willie A. Nevith, testified on his own behalf that he was twenty-two and unemployed. In 1958 he was convicted of burglary. He said that he met Burr, his codefendant, at 7:30 a. m. and went to the tire shop. They then went to Nadler’s tavern arriving there about 9:00 a. m. Nevith said that they stayed there until 12:45 p. m. They then drove to a Clark station and were arrested while buying gasoline for their 1953 Chevrolet. The defendant said the officers arrested him because he did not have a city sticker. At the station he said that the police officers told them they were looking for a green 1954 Buick. The defendant also said he had on a pair of green pants and a short green Eisenhower jacket. Burr, the defendant stated, had on a brown army coat— an Eisenhower jacket. The defendant denied that he and Burr had robbed the complainant.

The State offered into evidence a certified copy of a conviction of Willie Nevith for plain robbery in 1958. A stipulation was entered into by the parties that if Detective Eugene Kalmowski were called he would testify that he had a conversation with Nadler on January 14, 1963, and the witness told him that the two defendants were in the tavern that morning, but that they were in and out.

The defendant, Willie Nevith, contends that his conviction rested solely upon the identification of the complaining witness and that this identification was insufficient to sustain the verdict. He argues that when he was arrested he was wearing a green Eisenhower jacket, green army fatigue pants and a brown hat, whereas the complaining witness testified that the men who robbed her were wearing brown Eisenhower jackets. Also, the defendant said that when he was arrested, the police officers were looking for a 1954 green Buick. We must note that this latter testimony was given by the defendant and was not corroborated. It was also his uncorroborated testimony that the complaining witness could not remember much about what she told the police officers after the crime was committed and that she had not picked him out of a lineup.

A somewhat similar situation existed in People v. McCall, 29 Ill2d 292, 194 NE2d 222. In that case the complaining witness, whose purse was snatched about 8:50 p. m., testified that she observed the robber for three to five minutes in a well lighted area. Her identification of the defendant at the police station one hour after the robbery was positive. The Court held there that the fact the identification was made by only one witness and that the defendant was not with a group of men when viewed by the complaining witness at the police station did not destroy the credibility of her identification. “The fact that she was unable to tell the color or model of the car in which the robber drove away or the car’s license number only goes to the weight to be given her testimony.” In the case at bar the victim gave an adequate description of the robber’s wearing apparel, the car they drove, and positively identified the defendants three hours after the robbery and again at the trial. After a careful examination of the record we cannot say that the conclusion of the trial court was unwarranted. While the testimony of the witnesses for the defendant tend to establish an alibi, it was within the trial court’s province to disbelieve it. We find no reason to disturb the trial court’s finding of guilty.

The defendant also contends that the public defender appointed by the court to represent him committed the following two serious errors: he stipulated to the testimony of Detective Kalmowski thereby losing the right to cross-examine; and he commenced trial on April 19, 1963, knowing that at least one witness was unavailable that day. The record shows that at the close of the State’s case and after the testimony of defendants’ witnesses Sherrod, Littlejohn, and Green, on April 19, the public defender stated that he had one more witness, a Mr. Nadler. The court replied “I have already indicated that I would recess this trial until you can bring him in.” On the statement by the public defender that he could not bring Nadler in on the following Monday the matter was continued for a week to April 26. Thus, the record clearly shows that the trial court allowed the defense time to bring their witness into court removing any prejudice to the defendant that might have arisen when the public defender commenced trial before Mr. Nadler was available to testify.

On April 26, 1963, the public defender answered that he was ready to proceed and the State advised the court that their rebuttal witness was sick and not present. After Joseph Nadler told the court that he was not a well man and had just gotten out of the hospital, the public defender stated that “[i]f the court would proceed and finish our side of the case, then, if you want, you could put it over for rebuttal.” The public defender stated further that he would not object to a continuance to bring in the rebuttal witness “as long as they were nice enough to give me time.” At the close of the defendants’ case the respective counsel entered into the stipulation complained of by the defendant Willie Nevith. We have found nothing in the record to indicate that the defendant was prejudiced by the stipulation. On the contrary, we are of the opinion that the defendant was ably represented. As a matter of trial tactics, defense counsel evidently believed he could gain nothing by cross-examining the rebuttal witness and relied on the testimony of Nadler and the defendant. The stipulation is not unusual in such circumstances, particularly when the case is heard by the court. The stipulation does not show inadequate assistance of counsel. People v. Williams, 36 Ill2d 194, 222 NE2d 321.

]It is well settled that a review of appointed counsel’s competence does not extend to those areas involving exercise of judgment, discretion or trial tactics. People v. Wesley, 30 Ill2d 131, 136, 195 NE2d 708. This is true even though appellate counsel might have acted in a different manner. It was a matter of judgment and it has been held that a mere error of judgment does not amount to incompetence of counsel. People v. Palmer, 27 Ill2d 311, 189 NE2d 265.

The judgment of the Criminal Court division of the Circuit Court is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SEIDENFELD

license: Public Domain

text:
    Davis Furniture Co., an Illinois Corporation, Plaintiff-Appellant, v. Otis N. Young, Defendant-Appellee.
    Gen. No. 68-14.
    Second Judicial District.
    November 26, 1968.

      Jack R. Cook, of Loves Park, for appellant.
    Samuel L. Dean, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff appeals from an order of the trial court opening a default judgment against defendant in a replevin action, upon defendant’s motion with supporting affidavits filed more than thirty days after the rendition of judgment.

Plaintiff’s claim of error is that the motion, under section 72 of the Civil Practice Act, was not sufficient to show the due diligence required.

The record shows that the plaintiff filed an “Affidavit for Replevin” on June 15, 1967 (under the 1965 Statutes then in force) in which its agent deposed that plaintiff was lawfully entitled to certain household furnishings described, of the value not exceeding $1,200; that defendant detains such property; that said property has not been taken for any tax, assessment, or fine levied by virtue of any law, nor seized under any execution or attachment against goods of the plaintiff, nor by virtue of any Writ of Replevin against the plaintiff.

Plaintiff’s replevin bond was filed with the Sheriff and approved by him in the amount of $2,500, on June 15,1967.

A “Writ of Replevin” was issued on June 20, 1967, and was personally served on the defendant on June 21, 1967.

On June 29, 1967, plaintiff, by its attorney, filed an unverified complaint setting forth a retail installment contract of sales to defendant on various dates, describing the same property described previously in the Writ, alleging recovery of certain of the items and detention of others. The complaint alleged the value of the unrecovered property in the amount of $600 and damages in the amount of $400, plus reasonable attorney’s fees and costs. No notice of the filing of the complaint was given to defendant.

A judgment order was entered by default on July 20, 1967, finding right of possession to the property levied on under the Writ of Replevin to be in the plaintiff, and ordering defendant to pay $600 as damages and $250 attorney’s fees.

Defendant filed his motion to vacate the judgment on October 9, 1967, alleging that he had never received a copy of the complaint nor notice of the default hearing; that he has a meritorious defense and “a counterclaim”; and that he has been diligent in presenting the motion. The motion is supported by the defendant’s affidavit stating “that a wage deduction order has been filed by plaintiff against his wages”; that the sales contract was “grossly and fraudulently altered, forged or raised in its amount” after he signed it; that the plaintiff forcibly and illegally seized his property on June 21, 1967, including $400 of the defendant’s money cached therein”; that his lawyer refused to accept the case at that time because of the urgency of his other business, and that though he has persistently sought counsel none has been available to him until now.

Plaintiff, thereafter, filed a motion to strike defendant’s motion charging lack of due diligence. In an attached affidavit plaintiff, by its attorney, alleged that an affidavit for garnishment had been filed on the judgment against defendant’s employer on July 24, 1967, and summons served on the defendant; that defendant, through his attorney, filed a “notice of defense” with the employer on July 29, 1967, and partial payment of wages was paid to defendant; that a second garnishment was served on August 24, 1967 and partial payment made; and that on October 5, 1967, a third garnishment affidavit was filed and summons issued.

On October 30, 1967, the court heard arguments and ruled in favor of the defendant ordering the opening of the judgment and giving defendant leave to answer and counterclaim.

A motion to dismiss the appeal has been filed by defendant on the ground that the order vacating the judgment is not final and appealable. This motion has been taken with the case.

We determine, however, that the order is appeal-able under the express provisions of chapter 110, section 72, Ill Rev Stats 1967. Paragraph (6) of said section provides:

“(6) Any order entered denying or granting any of the relief prayed in the petition is appealable.”

On the merits of the appeal, plaintiff argues that the fact that defendant had an attorney on July 29, 1967, nine days after the judgment order in favor of the plaintiff (as evidenced by his mistakenly filing a defense to what he apparently considered a “wage assignment” but which actually was a garnishment proceeding) and did not seek to vacate the replevin judgment until some sixty-eight days later, conclusively shows a lack of due diligence.

Section 72 is not intended to relieve a party from the consequences of his own mistake or negligence (Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 467, 236 NE2d 719 (1968)) even though a determination under section 72 invokes the equitable powers of the court, as justice and fairness require. Elfman v. Evanston Bus Co., 27 Ill2d 609, 613, 615, 130 NE2d 348 (1963). The defendant must show that his failure to resist the judgment initially was a result of an excusable mistake and that he has a reasonable excuse for failure to act within the appropriate time. Esczuk v. Chicago Transit Authority, supra; Boyle v. Veterans Hauling Line, 29 Ill App2d 235, 172 NE2d 512 (1961). We have held that a defendant is not justified in merely ignoring a summons and doing nothing about it. Johnson-Olson Floor Coverings v. Branthaver, 94 Ill App2d 394, 236 NE2d 903 (1968).

The Replevin proceedings were properly instituted by affidavit under the law then in force. The provisions requiring the filing of bond and the issuance of the Writ of Replevin were properly complied with. (Ill Rev Stats 1965, c 119, §§ 4, 7, 10.) The Writ advised the defendant to appear and answer and we can find no provision under the statute then in force entitling defendant to notice of the filing of the complaint for damages for detaining part of the property sought. The allegations that he could not secure the services of an attorney until the filing of the motion to vacate do not afford a reasonable excuse for failure to defend, particularly when the attorney appears in a garnishment proceeding, apparently under a mistaken view of the nature of the litigation, within nine days after the entry of the judgment. It would appear that, well within the thirty days after the default judgment and after garnishment proceedings thereon, defendant should have been put on notice of the underlying judgment. Under these circumstances his failure to move to vacate until some seventy-seven days and after successive garnishments thereafter, may not be considered an excusable mistake.

It was the duty of defendant, once the court acquired jurisdiction, to follow the case. Esczuk v. Chicago Transit Authority, supra, at page 467. No sufficient reason for his not having done so appears here.

Moreover, the pleadings do not show facts constituting a meritorious defense to the plaintiff’s claim. There were seven separate retail installment contracts covering various items purchased by defendant at various times with various purchase amounts and installment payments specified on each. The defendant alleged, “that the instrument referred to in paragraph three of plaintiff’s complaint was grossly and fraudulently altered, forged or raised in its amount after the defendant signed said instrument.” Without any statement of facts as to which contract was referred to, in what manner, in what amount, or from what amount the instruments were changed, the allegations are not sufficient to plead a meritorious defense, but are mere conclusions.

We therefore reverse the October 30, 1967, order of the trial court vacating judgment.

Reversed.

ABRAHAMSON, P. J. and MORAN, J., concur.


text:
    Lula E. Allen, Plaintiff-Appellee, v. Gary Pire, Charles E. Johnson, and Rockford Transit Company, Defendants, Gary Pire, Defendant-Appellant.
    Gen. No. 68-71.
    Second Judicial District.
    November 26, 1968.

      Knight and Knight, of Rockford, for appellant.
    John L. Heaslip, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant, Gary Pire, appeals from a judgment on a jury verdict against him in the amount of $5,000 arising out of a collision between his car and the defendant Rockford Transit Company’s bus driven by the defendant Charles E. Johnson. The jury had found defendant Johnson and his employer not guilty. The plaintiff, Lula E. Allen, was a passenger in the bus.

Defendant Pire urges that the court below erred in denying his motion for a directed verdict at the close of all the evidence, and in denying his post-trial motion for judgment notwithstanding the verdict. He asks for a reversal and entry of judgment for the defendant in this court. In the alternative, the defendant claims error in the refusal to grant a new trial to the defendant, claiming that the court below erred in refusing to give certain instructions tendered by him.

The accident took place at the intersection of South Main Street and West State Street in the City of Rockford. At this point South Main Street is 48 feet wide with 3 moving traffic lanes for northbound traffic and 2 parking lanes. State Street at this point is also 48 feet wide. The intersection is controlled by traffic control lights which were in operation at the time of the occurrence. Parking is banned at the east curb of South Main Street for a distance of 4 to 5 car-spaces south from State Street, or a distance of approximately 75 feet back from the traffic control light on the southeast corner of the intersection.

The investigating officers, who arrived at the scene before the bus and the Pire car were moved, testified that the Pire car was partially up on the curb at the southeast corner of the intersection, with approximately six feet of the car protruding out into South Main Street and the front of the car one foot south from the curbline of State Street. The right side of the bus was up against the left front fender of the Pire car, with the front protruding out onto State Street. The point of impact was determined to be one foot to the south of the intersection.

The defendant, Johnson, testified that as he approached this intersection his bus was three-quarters loaded with about thirty-five to forty-five passengers; that as he approached he saw a station wagon at the east curb of South Main Street illegally parked in the first space to the north of the last parking meter on South Main Street; that he pulled the front of his bus over to the east curb in such a position that he was facing northeast with the front of his bus approximately one car length south of State Street; that after he had discharged passengers at the curb, the traffic light changed to green as he pulled from the curb preparatory to making his right turn; that when he pulled from the curb, he turned to the left in order to get into position to make a right turn, and before turning to the right he had come to a stop for the illegally-parked station wagon which had proceeded to the north from his parking space on the right side of the bus. He did not see Fire’s automobile until the time of the impact ; and that the damage to the bus started a few feet back from the right front door and was approximately eight feet long.

The plaintiff, Lula Allen, was a paying passenger and the only passenger on the bus at the time of the occurrence. When the defendant Johnson saw the station wagon moving, he stopped his bus and opened his door and said “Go on, road hog,” and after the station wagon passed he started his turn to the right.

The defendant, Fire, testified that he was in a northbound direction on South Main Street, travelling in the most easterly lane, immediately to the west of the parking lane, as he travelled in the first block south of State Street; that as he approached the intersection with State Street, he turned to the curb lane behind the station wagon and came to a stop at the intersection for a red light; that he did not see any bus as he approached this intersection; that the station wagon and the bus pulled into the intersection at about the same time and he pulled up behind the station wagon, taking the space vacated by it; that the station wagon upon pulling into the intersection, came to a stop allowing pedestrians to cross from the south to the north side of State Street; that the bus pulled approximately ten feet into the intersection before he started to turn; that he was stopped for a period of twenty seconds before the bus pulled up on the left side of his car; that he was then even with the crosswalk with the right side of his car about a foot and a half from the curbing on the east side; that when he saw the bus starting to turn to the right he stopped and started honking his horn. At that time the front of his car was just across one of the white lines, with the right side about a foot and a half from the curbing on his right; that the right front of the bus came in contact with the left front of his bumper and pushed his car over to the curb and his body was forced up against the left door.

The plaintiff, Lula Allen, testified that the bus pulled up to the curb, discharged passengers and then pulled to the left and out to make a right turn; that she recalled the bus coming to a stop when the station wagon sounded its horn, but did not recall the bus stopping for any traffic control light; after the station wagon made its turn she heard a second horn which sounded very frantic; she heard four sounds and then the impact took place almost instantaneously with the sounding of the horn.

She testified that the bus driver opened the door and said “Go ahead, road hog”; that when she looked to see who he was talking to she saw the tail end of the station wagon about half way in the middle of the next block on State Street. She did not see the Pire car. That at the moment of impact the front end of the bus was about 4 or 5 feet into State Street, headed in a northeasterly direction.

The testimony as to the plaintiff’s injuries was not substantially in conflict. At the time of the injury her only complaint was that of an injury to her left elbow for which she saw her doctor later in the day. On the morning following the accident, plaintiff testified that she noticed a numbness in her ear and a burning sensation around it. About nine days later she awoke with a severe pain on the left side of her face extending from the ear to her shoulder and noticed a draining from her ear. She went to a hospital for emergency treatment by her doctor. Subsequently she underwent treatment by doctors until the middle of September 1966, for a total of about nine treatments. Then she went to an eye, ear, nose and throat specialist who referred her to a Dr. Kalweit, a specialist. Dr. Kalweit diagnosed the injury to the ear as a perforation or hole in the left eardrum and found that there was a slight loss of hearing in this ear. He thereafter performed a tympanoplasty to correct the hole in the left eardrum.

Dr. Kalweit testified that the commonly accepted cause of a punctured or perforated eardrum is an infection, but that, in his opinion, based on a reasonable degree of medical certainty, the injury could have been caused by the accident. The plaintiff was discharged in February of 1968 after a hearing test found her hearing to be within normal limitations.

The total medical expenses incurred by plaintiff were in the amount of $702.65. In addition, she had a loss of employment of about six weeks at $34 per week.

The defendant argues on these facts that there was insufficient evidence in the record to sustain the verdict. The thrust of this argument is that the testimony of the bus driver is unbelievable and related to an impossible state of facts: that the bus could not possibly have pulled up and stopped a car length south from the crosswalk to discharge his passengers at the curb in that the station wagon could not have squeezed alongside of the bus, if the bus had been in the position testified to, and that, therefore, the bus could not have been making a proper right-hand turn. The plaintiff points out that it is equally inconceivable that the bus driver could have driven his bus to the east curb of South Main Street to the north of the first parking meter and still have been able to turn his bus back out into the first northbound lane of traffic and pull up on the left side of the defendant Fire’s automobile.

We view this case as one in which two defendant drivers have given conflicting versions of how the accident happened. This dispute in the facts was properly left to the jury. No serious argument has been advanced, nor could it be advanced under the record in this case, that plaintiff was guilty of contributory negligence as a matter of law. Under the facts in the case the trial judge could not say that the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favored the defendant Pire that no contrary verdict based on the evidence could ever stand. Therefore, he committed no error in refusing to direct a verdict at the close of the evidence and in refusing a motion for judgment notwithstanding the verdict. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

Nor do we find, on the record, that the verdict and judgment below are against the manifest weight of the evidence. The opposite conclusion from that reached by the jury and the court below is not clearly evident and we will not set aside a verdict merely because the jury could have found differently, or because the court might feel that another conclusion would be more reasonable, when we find that there is, as here, evidentiary basis for the verdict. Lindroth v. Walgreen Co., 407 Ill 121, 135, 94 NE2d 847 (1950); Kahn v. James Burton Co., 5 Ill2d 614, 623, 126 NE2d 836 (1955).

Defendant Fire’s claim of error in the instructions to the jury is directed principally to plaintiff’s instruction number 12, which was given as follows:

“When I use the expression ‘proximate cause,’ I mean that cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” (IPI . . . 15.01.)

Defendant argues that only the first sentence of the instruction should have been given under the facts of the case. His objection at the conference was, “the IPI suggests that the full one be given only where the additional one is someone who is not a party. Here everyone who is involved is a party.” While defendant cites the committee notes as authority for his position we do not believe that they are. The committee comments state:

“This instruction in its entirety should be used only when there is evidence of a concurring or contributing cause to the injury or death (other than acts ... of the plaintiff). In cases where there is no evidence of a concurring or contributing cause, the short version without the bracketed material may be used.” (IPI Pocket Parts, page 28.)

Here the jury could have found on the evidence that the negligence of both the bus driver and of the defendant Pire concurred or contributed to cause the injury to the plaintiff. Moreover, the apparent reason for the cautionary note as to the use of the full instruction is that the latter part would be improper because it would prejudice the defendant’s defense of contributory negligence. Budovic v. Eschbach, 349 Ill App 163, 167-168, 110 NE2d 477 (1953).

In view of the complete absence of contributory negligence in this case, the only possible causes of the occurrence would have been either separate or concurring conduct of the two drivers as defendants, and we cannot say that this jury was misled by the instruction. While defendant has claimed error in the giving and refusing of certain other instructions, these claims of errors have not been strenuously argued and while we have considered them we find no error in the rulings of the court below in that regard.

We find that the instructions as given and refused have fairly instructed the jury and do not constitute prejudicial or reversible error. Kinsch v. DiVito Const. Co., Inc., 54 Ill App2d 149, 160, 203 NE2d 621 (1964).

Defendant Pire has also claimed that the verdict is excessive. The amount of damages to be assessed is peculiarly one of fact for the jury, and as the jury was properly instructed as to damages, this court will not substitute its judgment as to the proper amount to be awarded for that of the jury. Redmond v. Huppertz, 71 Ill App2d 254, 261, 217 NE2d 85 (1966).

The judgment appealed from below is affirmed.

Affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MR. JUSTICE MCNAMARA

text:
    Francis Huckabee, Plaintiff-Appellee, v. Bell & Howell, Inc., a Corporation, Guy M. Zettler & Co., a Corporation, Defendants, and Safeway Steel Scaffolds Co. of Illinois, a Corporation, Defendant-Appellant.
    Gen. No. 50,992.
    First District, Second Division.
    November 26, 1968.
    Rehearing denied January 3, 1969.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (David Jacker, William H. Symmes, John M. O’Connor, Jr., and Jon R. Waltz, of counsel), for appellant.
    Barbera and Friedlander, of Chicago (Dom J. Rizzi, A. J. Hardiman, and Donald G. Zerwer, of counsel), for appellee.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

The plaintiff, Francis Huckabee, brought suit against Safeway Steel Scaffolds Co. of Illinois, Bell & Howell, Inc., Guy M. Zettler & Co., and J. Emil Anderson & Son, Inc. to recover damages for personal injuries that he had sustained. J. Emil Anderson & Son, Inc. paid the sum of $10,000 to plaintiff, received in exchange a covenant not to sue, and was voluntarily dismissed from the action. Guy M. Zettler and Bell & Howell were also dismissed by plaintiff. The plaintiff charged Safeway Steel Scaffolds, hereinafter referred to as defendant, with violation of the Structural Work Act (Scaffold Act) and with common-law negligence. The defendant’s motions for a directed verdict at the end of plaintiff’s case and at the close of all the evidence were denied, and the jury returned a verdict in favor of plaintiff and against the defendant in the amount of $80,000 and judgment was entered thereon. Defendant’s post-trial motions were also denied, and defendant brings this appeal.

Plaintiff was injured as a result of an accident which took place on Friday, March 29, 1957. At the time of the accident, plaintiff, a painter for the Guy M. Zettler & Co., was engaged in painting the Bell & Howell plant located at 7100 McCormick in Chicago. Anderson was the general contractor supervising the construction of an addition to the plant, and Zettler was the painting subcontractor.

Plaintiff and his co-worker Emery Nissen were engaged in painting certain pipes and steel structures below the ceiling. They were able to reach these pipes by use of a scaffold tower fifteen feet above the floor. This scaffold was constructed of tubular steel members and was mounted on four wheels or casters so that it could be rolled from place to place. The four wheels were equipped with lever-operated brakes to prevent the scaffold from rolling. The brake and wheel comprised a single unit, which had a four-inch stem that was inserted into the tubular, vertical scaffold member.

The component parts of the scaffold had been brought to the job site in January 1957 by a Zettler employee in one of its trucks. The disassembled parts were then assembled into five separate scaffolds of the same type by the Zettler employees. All five scaffolds remained on the job through April 4, 1957, when the job was completed. Nissen and another employee of Zettler, Lang Ward, who did not testify, had disassembled the scaffold involved in the occurrence, moved the parts to the room in which the accident happened, and there reassembled the parts into a single scaffold. Nissen and Ward had used the scaffold uneventfully for two days in March.

Plaintiff had begun working at the Bell & Howell job in January, but was sent to another site for a period of time. On Thursday, March 28, the day before the accident, the plaintiff and Nissen began working together on the reassembled scaffold. On that day, the scaffold moved twice while they were using it. After it moved the first time, both men descended, adjusted the brakes and found them working well. Nissen returned to the top of the scaffold when it moved again and one of the wheels came off. The plaintiff held up the corner of the scaffold from which the wheel came off while a man who was sweeping the floor reinserted the wheel; this man did not testify. Afterwards, Nissen and the plaintiff resumed work on the same scaffold because “it seemed to be fine” after they checked it, and plaintiff testified that he did not know of any other scaffolds in the area. The scaffold was always on a level floor.

They used the same scaffold all next morning, the day of the accident, without incident. After lunch they checked the brakes and resumed work. About ten minutes later, the scaffold tipped and then fell to the floor. Nissen managed to hang on to a sprinkler pipe hanging from the ceiling but plaintiff fell to the concrete floor with the scaffold landing on top of him. As a result, he sustained severe and permanent injuries, including a fractured jaw and fractures of both wrists.

Dominic Pomponio, an employee of Bell & Howell, testified that, although he did not witness the accident, he heard the crash and ran to the scene. He saw the scaffold lying on the floor with a caster missing from one of the corners. He also testified that he had seen two painters working on a scaffold the day before the accident, and observed them moving the scaffold by pulling themselves along on the overhead steelwork; however, he did not know whether plaintiff was one of the painters.

Plaintiff denied that he ever moved the scaffold by use of the beams along the ceiling. He stated that he and Nissen moved the scaffold by descending, disengaging the brakes on the wheels, and pulling the scaffold to the next position. Plaintiff and Nissen also testified that they could not explain why the scaffold fell. The scaffold involved in the accident was used without incident until the job was completed about three days after the accident.

During the year of 1957, defendant was in the business of leasing component parts of scaffolds, and Zettler was one of its customers. On the date of the accident, defendant had component parts for one scaffold leased to Zettier under an agreement dated February 14, 1957. Although generally the defendant inspected the scaffold parts before leasing them to Zettler, Peter Gilbertson, vice-president of the defendant company, testified that he had “no way of knowing” whether this particular scaffold was inspected. He further testified that there was no provision in the agreement with Zettler for adjustment of the equipment on the job, while it was out of defendant’s possession. He also testified that defendant had no contact with the component parts from the time they were leased until they were returned; that the parts were not leased for any particular job; and that defendant would not be able to determine if the component parts were moved from one job to another.

Plaintiff introduced into evidence, without objection, defendant’s answers to two interrogatories. The answers stated that defendant was the owner of the scaffold involved in the occurrence, and that the defendant had leased the scaffold in question to Zettler. Also at trial, Gilbertson testified that a photograph of a scaffold which was introduced in evidence was the same type of scaffold that was furnished by defendant to Zettler, and that if the component parts were assembled it would comprise a structure similar to that shown in the photograph. He further testified that the parts leased to Zettler were returned to defendant on May 6 without any comment regarding their condition, and that these parts were in good condition when returned to defendant.

On this appeal, defendant urges several grounds for reversal. One of his contentions is that there is no liability as a matter of law under the Scaffold Act, 111 Rev Stats 1965, c 48, § § 60-69, because it was not shown that defendant was in charge of the work.

In the instant case, the trial court concluded that the supplier of a defective scaffold is liable under the Scaffold Act whether or not he was in charge of the work. Accordingly, the court rejected defendant’s tendered instruction that plaintiff had the burden of proving that defendant was in charge of the work. In refusing this instruction the trial judge stated that if he thought that defendant had to be in charge of the work to be liable under the Act, he would have granted defendant’s motion for a directed verdict.

It is now conceded by plaintiff and is well settled that to be liable under the Illinois Scaffold Act one must be in charge of the work. Gannon v. Chicago, M. & St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785 (1961); Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965); Vykruta v. Thomas Hoist Co., Inc., 75 Ill App 2d 291, 221 NE2d 99 (1966). While refusal by the court of the tendered instruction would require remandment for a new trial, we believe it necessary to discuss whether as a matter of law defendant is liable under the Scaffold Act.

Defendant leased component parts of a scaffold to plaintiff’s employer Zettler. On this appeal, plaintiff cites certain portions of the leasing agreement between defendant and Zettler to show that defendant could have been in charge of the work. The record is unclear as to whether the leasing agreement was admitted into evidence at trial, but for the purposes of this opinion, we will consider the entire agreement. The portions of the agreement relied on by plaintiff provide that the lessee could not move the equipment from one job to another without the prior written consent of the lessor; that the lessee must use the equipment in compliance with the law and with the instructions of the lessor; and that the lessor had the right of free access to the leased equipment for the purpose of inspecting it, observing its use and operation, or determining the nature and extent of its use.

In Vykruta v. Thomas Hoist Co., Inc., supra, the court set the standards that must be met before one can be liable under the Scaffold Act, stating that “to be liable a defendant must be in charge of the work; he must have some direct connection with the construction before he can be deemed in charge of the work; he can perpetrate a knowing violation only if he is directly connected with the operation .... The mere furnishing of equipment does not render one in charge of the construction or that part of the construction in which the equipment is used.” At p 301.

In applying these standards to the present case, it is clear that defendant had no direct connection with the work so as to have been considered in charge of the work. Consequently, he cannot be liable for damages under the Scaffold Act. The leasing agreement did not provide for adjustment of the equipment by defendant while it was out of the premises of Safeway. Defendant had not leased the component parts for use at any particular job site, nor did it have any contact with the parts from the time they were leased until they were returned.

Moreover, the scaffold upon which plaintiff was working when injured was assembled on the job site by employees of Zettler.

Defendant’s leasing agreement with Zettler is distinguishable from and falls short of the agreements in Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965), and in Miller v. DeWitt, 59 Ill App2d 38, 208 NE2d 249 (1965), affirmed 37 Ill2d 273, 226 NE2d 630 (1967). In both of these cases, the agreements pertained to specific construction jobs in which the plaintiffs were injured. In the instant case, the component parts were not to be used for any particular job. In the Larson case, the defendant prepared the contracts, the work plan, the structural designs, and the specification used in the construction work. In the Miller case, the defendant, an architect, was to prepare preliminary studies, working drawings, specifications, large scale and full size detail drawings for architectural, structural, plumbing, heating, electrical and other, mechanical work and he also was to supervise the work to guard against any defects or deficiencies of the contractors. No such control is granted to defendant in the instant case, and since the parts were not rented for any specific job, no control was granted to defendant which would place it in charge of the work at the Bell & Howell site. The clauses in the leasing agreement permitting Safeway to prevent certain activities with the component parts only allow it to protect the leased parts from loss, theft or misuse; they do not put defendant in charge of the work. We therefore find that defendant was not in charge of the work and is not liable under the Illinois Scaffold Act.

The defendant also contends that plaintiff failed to make out a cause of action for common-law negligence as a matter of law, and that the trial court erred in not granting the defendant’s motion for a judgment notwithstanding the verdict. It argues that plaintiff failed to show that defendant was negligent. Defendant also contends that as a matter of law plaintiff was guilty of contributory negligence and assumed the risk of the accident.

In Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), our Supreme Court held that whether a verdict should be directed, whether a judgment notwithstanding the verdict should be granted and whether negligence is a question of law should all be decided by the same standard. If “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand,” a question of law is created. And it is immaterial whether we believe that another conclusion is more reasonable. Seeds v. Chicago Transit Authority, 409 Ill 566, 101 NE2d 84 (1951). Applying those principles to the instant situation, we find that, when the evidence is viewed in a light most favorable to plaintiff, the issues of negligence and contributory negligence become questions for the triers of fact.

We agree with the defendant that the duties of a bailor to a third person are applicable, since under the agreement between Zettler and defendant, the latter became a bailor for hire of the scaffold parts. The duties of a bailor to third persons for negligence are clearly defined in two decisions by this court. Chambliss v. Walker Const. Co., 46 Ill App2d 287, 197 NE2d 83 (1964); Witt v. John Hennes Trucking Co., 49 Ill App2d 391, 199 NE2d 231 (1964). These cases are in agreement with the Restatement of Torts (1965) c 14, § 388. Under these cases, a bailor is liable to a third person for injury if (1) he supplied the chattel in question; (2) the chattel was defective at the time it was supplied; (3) the defect could have been discovered by a reasonable inspection; and (4) the defect was the proximate cause of the injury.

Defendant maintains that it did not supply the scaffold involved in the accident, relying on testimony at trial that on the date of the accident, March 29, 1957, defendant had the component parts of only one scaffold on lease to Zettler, and these parts had been delivered in February, 1957, whereas the scaffolding from which plaintiff fell was delivered to the job in January, 1957. However, defendant answered two interrogatories by stating that defendant was the owner of the scaffold involved in the occurrence, and that defendant had leased that scaffold to Zettler. Moreover, defendant’s vice-president testified that the scaffold in question was returned to defendant in May, 1957. In view of the conflicting evidence, whether defendant supplied the scaffolding remains a question for the trier of fact.

Defendant also maintains that the scaffolding components were not defective at the time that they were supplied to Zettler, and contends that plaintiff did not present any evidence tending to show that a defect existed. We agree that there is no direct proof of any defect; however, direct evidence is not required if there is a reasonable basis from which a jury could have drawn the inference that the scaffold was defective. Thomas v. Smith, 11 Ill App2d 310, 137 NE2d 117 (1956). See also Caviness v. Hamblen, 324 F2d 939 (7th Cir 1963). A similar situation existed in Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847 (1950), where plaintiff failed to present direct evidence of any defect in a vaporizer which allegedly caused a fire. The Supreme Court stated:

“The key point of the controversy is appellants’ contention that the fact of defect must be proved before it may be inferred that such defect caused the fire and the injury complained of. There being no eyewitnesses, the determination of this contention must be found in the circumstances revealed by the evidence, if at all ... . It is clear from the evidence that a properly constructed vaporizer could not melt itself down and it would seem inescapable that if the vaporizer did in fact melt by the application of its own heat, it was defective.” At p 131.

Thus, the court held that, under the circumstances of that case, the fact of a defect may be inferred from all of the evidence. Although the facts of that case and the one at bar are different, the principles involved are the same. In both cases plaintiff did not present any direct evidence of a defect in the product causing the injury. And in the instant case, as in Lindroth, supra, if plaintiff’s testimony is taken as true, an inference of a defect in the scaffolding from the accident itself is reasonable. The floor upon which the scaffold was placed was level, ruling out any possibility of the scaffold rolling; and after the accident a witness noticed that one of the wheels had come out. In addition, plaintiff testified that, the day before the accident, the scaffold moved unexplainably, and that on the same day one of the wheels came out of the tubing. An inference that one of the wheels was old and worn out is not unreasonable. Nor can we as a matter of law accept defendant’s argument that the time between the delivery of the scaffolding components and the accident would make a defect highly improbable.

Defendant also argues that the components were not defective when delivered. However, defendant’s vice-president testified that, although generally the scaffolding components were inspected before delivery, he did not know whether these particular components were inspected. Thus, we conclude that plaintiff has presented sufficient evidence as to defendant’s negligence to become an issue of fact.

Defendant also contends that the plaintiff, in continuing to use the scaffold after the events of the day prior to the accident, assumed the risk of the accident and also was guilty of contributory negligence as a matter of law.

In Illinois, the doctrine of assumption of risk in negligence cases is limited to those involving the master-servant relationships. Hammer v. Slive, 27 Ill App2d 196, 169 NE2d 400 (1960). Consequently, the doctrine has no application in the instant case.

The plaintiff testified that after the scaffold had been fixed the day prior to the accident, it worked fine. He also testified that he checked the scaffold the morning of the accident, and it was functioning satisfactorily, and also that he was unaware that there were other scaffolds available in the building. Under Pedrick, supra, contributory negligence was a question of fact for the jury.

The final issue we must determine is whether to invoke the presumption that a general verdict is based upon the evidence which supports the valid counts or issues. If we invoke this presumption, we must affirm; otherwise we must reverse and remand. This problem was discussed in Sims v. Chicago Transit Authority, 7 Ill App2d 21, 129 NE2d 23 (1955). In that case, the court concluded that "unless the reviewing court can say that on retrial the result could not be otherwise, the cause must be remanded toward the end that the party bringing error may secure substantial justice. Where the reviewing court can see the case has been fairly tried, and that the judgment is clearly right upon the facts, and that consequently another trial must necessarily result the same way, it will not reverse on the ground that an erroneous issue has been submitted to the jury. Quite a different rule prevails where the case is a close one on the facts. In such a case where the evidence is about evenly balanced, the reviewing court will reverse for any substantial error in the trial court on a material question that may have turned the scale in favor of the successful party.” At p 29.

The submission of the Scaffold Act count to the jury was substantial error. The proof required for that count is of a different degree and nature than the proof required for common-law negligence; for example, contributory negligence is not a defense under the Scaffold Act. Brackett v. Osborne, 44 Ill App2d 441, 195 NE2d 8 (1963). We cannot say with any degree of certainty that, upon the evidence presented, the jury would return a verdict based upon common-law negligence. Thus we must reverse the judgment and remand the cause for a new trial on the issue of common-law negligence.

Judgment reversed and cause remanded.

BURKE, P. J. and LYONS, J., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Johnson, Defendant-Appellant.
    Gen. No. 51,464.
    First District, Second Division.
    November 26, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a two-count indictment, the defendant, William Johnson, and one Charles Culp were jointly charged with theft of an automobile exceeding $150 in value and with criminal trespass to vehicle. In a subsequent jury trial upon this indictment, the defendant was convicted only of criminal trespass to vehicle, a misdemeanor and a violation of 111 Rev Stats (1965), c 38, §21-2. After motions for a new trial and in arrest of judgment were denied, judgment was entered and the defendant was sentenced to one year in the County Jail. He appeals contending: (1) the trial court erred in denying the defendant’s motion to suppress his oral confession based upon an alleged lack of voluntariness; (2) the alleged inconsistency of the jury in convicting him only of criminal trespass to vehicle, thereby, by implication, acquitting him of theft showed a reasonable doubt that he had committed any crime at all; (3) prejudicial remarks of the prosecutor in closing argument constituted reversible error, denying the defendant a fair trial; (4) the trial court committed prejudicial error by failing to instruct the jury that the alleged verbal admissions of the defendant should have been received with caution. The facts follow.

At the hearing on the pretrial motion of the defendant to suppress his oral confession, the State produced as witnesses the two officers who arrested the defendant without a warrant; the two officers who drove the squadrol which transported the defendant and his coindictee, Culp, from the arrest scene to the police station; and the two detectives who conducted the arrest investigation. The two arresting officers testified that they did not threaten or strike the defendant when they arrested him along with Culp at 2:00 a. m. on August 20, 1965, and neither did the two officers driving the squadrol which arrived shortly thereafter. Continuing, the officers stated that they could not remember if they advised the defendant of his right to remain silent or to consult with counsel. They did say that the defendant, at the arrest scene, denied any participation in the theft of the automobile and never asked to see a lawyer.

The two police officers who drove the squadrol that morning testified that they did not strike or threaten the defendant nor did anyone in their presence. As for the testimony of the detectives, Shereikis testified that he and his partner, Krause, were assigned to an arrest investigation of an auto theft. Accordingly, they arrived at the police station at approximately 2:45 a. m. on August 20, 1965, whereupon they met the defendant and Culp. On cross-examination, Shereikis stated that he did not advise the defendant of his right to remain silent and his right to counsel. In the detective’s questioning of the defendant in the police station, the accused orally admitted that he was walking in the particular neighborhood where the crime occurred and stated that “he was looking for a car to ride around in and they happened to find one.” Culp also orally admitted his participation in the theft. (At the time of the trial, Culp had pleaded guilty and was awaiting sentencing.) Detective Krause corroborated this testimony and testified that he did not advise the defendant of his right to remain silent and of his right to counsel.

In support of his motion to suppress, the defendant testified that one of the two arresting officers allegedly struck him and Culp and promised to release them in exchange for money. They were not struck after being put in the squadrol.

Charles Culp corroborated the testimony of the accused. On cross-examination, he identified one of the arresting officers as being the one who struck the defendant and asked for money, and he also identified one of the squadrol officers as having struck them.

The State then called, in rebuttal, the arresting officer whom the defendant and Culp had charged with alleged police misconduct at the arrest scene. The officer denied these accusations. The motion to suppress the oral confession of the defendant on the basis of its alleged involuntariness was then denied.

At the trial of the cause before the jury, the State presented three witnesses: the owner of the auto which was stolen; one of the arresting officers; and one of the detectives in whose presence the defendant had allegedly made an oral confession. The first witness for the State, Raven Knighten, established her ownership of the auto, stated that it was a red 1963 Chevrolet Corvair for which she had paid $1,900 in cash in addition to her old car, and testified that on August 19, 1965, at about 6:00 p. m., she parked this vehicle in front of her home. When she and her husband left their home in his car at approximately 7:30 p. m. that same evening, her auto was parked where she had left it. When they returned to their home between 9:00 and 9:30 p. m. that same evening, August 19, 1965, her car was gone. Her husband reported this to the police, and the next morning he went to the police station and reclaimed it. Upon examining her car, she noticed that “the ignition switch had been snatched out; it was hanging . . .

On cross-examination, this witness stated that when she parked her auto in front of her home, its doors and windows were locked. Furthermore, before her husband left with her that night, he also checked the car to determine that its doors and windows were locked. When she examined the car after its recovery, she did not notice any windows broken but a screwdriver was on the floor. Her husband had left some of his tools in her car prior to the theft. This was her husband’s screwdriver.

One of the arresting officers called by the State testified that at approximately 2:00 a. m. on August 20, 1965, he and his partner, in their squad car, saw an automobile, with its headlights off, fail to stop for a red traffic light. The vehicle was a red 1963 Corvair and there were two people in it. Continuing, this police officer testified that he and his partner then gave chase and were able to halt the vehicle in an alley. Both vehicles came to a stop, head-on, approximately 10-15 feet from each other. This officer immediately put the police spotlight on the driver of the other vehicle and observed that he was “a male negro, dark complexioned, thick lips, and he wore a red shirt.” The driver of this auto was under his observation for one or two minutes. The arresting officer then identified the defendant in the courtroom as being the driver of the red Corvair which he and his partner had stopped in the alley.

The driver and the occupant of the Corvair were successful, however, in fleeing from the police at the time of the initial confrontation. The police examined the Corvair and noticed that the ignition had been pulled. It was the testimony of this police officer that in continuing the search in the immediate neighborhood for the occupants of the auto, he and his partner, while in their squad car, saw two men turn a corner and walk toward them. One of the men was the same man whom this witness had seen earlier driving the red Corvair. He was wearing a red shirt. When the police officers called to them, both men started to flee. The record is silent as to how the police apprehended them. Continuing, this witness testified that in answering the questions of the police officers concerning why they were in this neighborhood at approximately 2:30 a. m„, the defendant stated that he was visiting a friend who lived in the neighborhood but could not remember his name or address. The police officers then ascertained, through police communications, that the 1963 Corvair was a stolen vehicle. The defendant and his companion were transported to a police station in the squadrol.

On cross-examination, the arresting officer stated that when he saw the defendant on the street immediately prior to placing him under arrest, the accused was 15-25 feet away from the squad car and the street was very Well lighted with vapor lights. He saw the red shirt immediately and was able to see the defendant’s face well enough to be positive he was the man he had seen earlier driving the stolen vehicle. It was this officer’s testimony that at the scene of the arrest, the accused denied stealing the auto.

One of the detectives who conducted the arrest investigation of the defendant and Culp testified for the State and stated that he had a conversation with the defendant in the police station at approximately 2:45 a. m. on August 20, 1965. Also present were the two arresting officers and the detective’s partner. In response to the questions of this witness, the defendant stated orally that he and Culp “noticed this Corvair; they got in the car, Johnson said he found a screwdriver in the car, ‘popped’ the ignition, started the car, and drove it away.”

On cross-examination, this witness testified that he transcribed the oral remarks of the defendant onto a piece of paper and he later incorporated these written notes into the arrest investigation report signed by both detectives. This report was then identified as Defendant’s Exhibit #2, and after reading it, the detective admitted that it failed to contain a statement made by the defendant that he found the screwdriver in the car and used it to “pop” the ignition. On redirect examination, the detective testified that the arrest investigation report contained a statement that the defendant orally admitted “popping” the ignition, but on recross-examination, the detective testified that the report did not specify that the defendant admitted “popping” the ignition. Rather, the report stated that the “arrestees” admitted this.

The defendant and Charles Culp testified for the defense. The defendant denied stealing the auto or ever riding in it. It was his testimony that he met Culp as he (i. e., the defendant) was walking home. He denied attempting to flee when the police squad car arrived and he denied ever admitting in the police station that he took the auto and “popped” the ignition. He did state that one of the arresting officers allegedly struck him a few times and allegedly solicited a bribe.

On cross-examination, the accused stated that at the time of his arrest he was approximately eight blocks from his home and was returning there. Culp met him on the street at 1:45 a. m. on August 20, 1965, and both started to walk together. They knew each other slightly. The defendant was coming from a tavern located in the area. He was not with anyone in the tavern. The accused stated he was wearing a red shirt on the morning of August 20, 1965. He never told anyone in the police station that he had been allegedly struck by police officers that morning.

Charles Culp testified that he was arrested with the defendant on August 20, 1965, but the defendant was never with him in the stolen vehicle. Some other persons were. In rebuttal, the State called the two arresting officers who denied ever striking the defendant or soliciting a bribe or seeing any other policeman in their presence doing so. The State, over objection and in an attempt to impeach the credibility of the defendant who had testified, introduced into evidence certified copies of documents signed by the Clerk of the Circuit Court of Cook County indicating that the defendant had twice been found guilty of an infamous crime on a plea of guilty.

The initial contention of the defendant is that the trial court erred in denying the pretrial motion to suppress his oral confession based upon an alleged lack of voluntariness. In his verified written motion, the defendant specified three grounds for the suppression of his oral confession: he was not advised of his right to counsel; he was not advised of his right to remain silent; he was twice struck by police officers. Since the trial of the instant case commenced in December, 1965, the constitutional principles pertaining to the admissibility of confessions found in Escobedo v. Illinois, 378 US 478, 84 S Ct 1758 (1964), apply to this case but not those found in Miranda v. Arizona, 384 US 436, 86 S Ct 1602 (1966). See Johnson v. New Jersey, 384 US 719, 86 S Ct 1772 (1966).

In Johnson v. New Jersey, supra, the United States Supreme Court declared that the precise holding of Escobedo required an accused, in police custody and being interrogated as the prime suspect, to request to consult with his counsel, which request was denied by the authorities. This was the finding of the Illinois Supreme Court in People v. Hartgraves, 31 Ill2d 375, 380, 202 NE 2d 33, 36 (1964), cert den 380 US 961 (1965):

“We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney. . . .”

In the instant case, the two arresting officers testified at the pretrial hearing on the motion to suppress that the accused did not ask to see an attorney at the time of his arrest or at any other time. The accused was not asked any questions by his counsel regarding this aspect of the case. It thus stands uncontradicted in the record that the defendant did not request legal assistance. His oral confession was given to the detectives in the police station within one hour following his arrest. Following the legal principles enunciated in Escobedo, Johnson and Hartgraves, it follows that the failure of the police to advise the defendant of his right to counsel did not, per se, render his oral confession inadmissible.

Since this case was tried before Miranda was decided, failure of the police to advise the defendant of his right to remain silent did not in and of itself render his later confession inadmissible, but such failure along with the failure to advise the defendant of his right to counsel were attendant circumstances to be considered by the trial court in determining the voluntariness of the oral confession. See People v. Jackson, 35 Ill2d 162, 220 NE2d 229 (1966). Adjudication of the police misconduct allegation in the motion to suppress rested upon the credibility of the patrolmen and detectives who testified for the State as opposed to the defendant and his coindictee. After carefully reviewing the record, we cannot say that the conclusion of the trial court in finding the confession to be voluntary is either manifestly against the weight of the evidence or clearly erroneous. See People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966). We find no reason to disturb its ruling.

Secondly, the defendant urges that the inconsistency of the jury in convicting him only of criminal trespass to vehicle, thereby, by implication, acquitting him of theft shows a reasonable doubt that he committed any crime at all. We disagree. The record contains ample competent evidence from which the jury could have reasonably concluded, as it did, that the defendant had knowingly entered the vehicle of another without authority thereby supporting a conviction for criminal trespass to vehicle. The owner of the vehicle testified that she locked all doors and windows of her car before leaving her home but upon returning she noticed that her auto was gone. One of the arresting officers identified the defendant as one of the men he and his partner had stopped in an alley. At that time the accused was driving a car which was later discovered to be stolen, and which was, in fact, the property of one of the witnesses for the State.

After stopping the auto in the alley, the officer beamed a spotlight into the interior of the curbed vehicle and had an opportunity to observe the physical characteristics of the driver and to notice that he was wearing a red shirt. The officer also testified that the defendant, along with his companion, escaped from the police in the initial encounter but was observed by this officer in the immediate neighborhood shortly thereafter. He was wearing a red shirt. Once again, the defendant and his companion sought to flee from the police but were unsuccessful this time. The defendant denied participation in any crime, denied that he attempted to flee from the police at any time, but admitted he was wearing a red shirt at the time in question. A witness for the defense, Charles Culp, testified that the defendant was never with him in the stolen vehicle. Some other persons were.

The jury was thus presented with a conflict in the evidence. As the trier of fact and evaluator of the credibility of the witnesses, it could have reasonably determined from all the evidence adduced at the trial that although the defendant did not intend to permanently deprive the owner of the automobile of its use or benefit and hence was not guilty of theft, he had, in fact, knowingly entered the vehicle of another without authority to do so and was thus guilty of criminal trespass to vehicle, a misdemeanor. Cf. People v. Chandler, 84 Ill App2d 231, 236, 228 NE2d 588, 591 (1967). Thus, the jury did not return an inconsistent verdict by convicting the defendant of criminal trespass to vehicle and, by implication, acquitting him of theft.

Thirdly, the defendant contends that he was deprived of a fair trial by alleged prejudicial remarks of the prosecutor in closing argument. Specifically, the defendant complains of the following remark which referred to defense counsel:

“Counsel could get Shereikis out from the back. He could have walked up here and said, ‘Mr. Bailiff, I call Officer Shereikis to the stand,’ and in two and a half minutes he would be on that stand. Why did not counsel call him? Because counsel knew what Shereikis would have said, that is why.”

Since the early ease of People v. Munday, 280 Ill 32, 117 NE 286 (1917), it has been established law in Illinois that the prosecution cannot comment unfavorably upon the failure of the defendant to produce witnesses unless it is manifest that it is within the power of the accused to produce such witnesses and they are not accessible to the prosecution. In the instant case, Detective Shereikis was equally accessible to the prosecution.

But the record indicates that this argument of the prosecutor was a retaliation to and was invited by an earlier argument to the jury made by defense counsel in which that counsel said:

“Where is the other officer? (referring to Officer Shereikis.) There is another detective. Were they afraid to put the other detective on the stand ? Why did they not bring him in ? Maybe his memory was a little better, or maybe he was not willing to shade the truth.”

In People v. Wheeler, 5 Ill2d 474, 126 NE2d 228 (1955), our Supreme Court held that while it is error for the prosecutor to comment on the failure of the accused to produce witnesses who are equally accessible to the prosecution, it is not error for the prosecutor to reply to a question propounded by counsel for the accused, and where defense counsel has asked why the State did not produce certain witnesses, it is proper for the prosecutor to ask defendant’s counsel why he did not bring in the same witnesses. See also People v. Izzo, 14 Ill2d 203, 151 NE2d 329 (1958), appeal dismissed 362 US 403 (1960). The cited cases are dispositive of this contention.

The defendant also complains of the following remark addressed to the jury by the prosecutor in closing argument:

“I have been on murder cases. I never heard that kind of dribble, gobbledygook. The situation here, ladies and gentlemen, is that a defendant is on trial. This is not a case — It is not a gun battle between Mr. Cohen, Mr. Passerella and myself. It is not a gun battle between Mr. Cohen and the fact he might hate policemen — ”

Defense counsel immediately objected to this improper remark. The trial court ordered it stricken from the record and at the same time instructed the jury to disregard it. By its prompt action, the trial court prevented prejudicial error. See People v. Mindeman, 318 Ill 157, 149 NE 27 (1925); and People v. Henry, 68 Ill App2d 48, 214 NE2d 550 (1966).

Lastly, the defendant contends that the trial court committed prejudicial error in its failure to instruct the jury that the alleged verbal admissions of the defendant should have been received with caution. Such admissions might support a theft conviction. However, the jury, in convicting the defendant only of criminal trespass to vehicle, chose either to disbelieve the content of the defendant’s alleged statement or to believe the testimony of the defendant at trial in which he denied making any oral confession. Thus, by its verdict, the jury did, in fact, receive the alleged verbal admissions of the defendant with caution.

There is sufficient evidence in the record, independent of the alleged oral confession of the defendant, to support his conviction for criminal trespass to vehicle. The testimony of the vehicle’s owner and of the arresting officer establish that the auto was entered knowingly without the owner’s authority and that the defendant was driving it when stopped by the police. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

BURKE, P. J. and McNAMARA, J., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    Doris L. Gans, et al., Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,488.
    First District, Second Division.
    November 26, 1968.

      Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellant.
    Victor J. Cacciatore and John J. Turner, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Plaintiffs instituted this action challenging the constitutionality of the Zoning Ordinance of the City of Chicago, as it applies to their subject property, and requesting the trial court to enter a decree permitting them to construct a gasoline filling station on the premises. The trial court entered a decree granting the requested relief, in accordance with the recommendations of the Master to whom the cause had been referred for hearing. Defendant appeals.

The subject property, consisting of five unimproved lots, is located at the northeast corner of 95th Street and Michigan Avenue in Chicago. The property fronts 140 feet along 95th Street and extends 125 feet in depth along Michigan Avenue to an east-west alley next north of and running parallel to 95th Street. Ninety-fifth Street is a heavily traveled, 100-foot wide, U. S. arterial highway route, at this point consisting of four lanes of moving traffic and two parking lanes. Traffic at the 95th Street and Michigan Avenue intersection is controlled by a traffic light. The subject property lies within an area zoned Bl-1 local retail which does not permit the use desired by plaintiff. The proposed use, a gasoline filling station, requires a B4-1 restricted service classification.

In October 1964 plaintiffs filed an application with the City Council of the City of Chicago seeking an amendment to the City’s Zoning Ordinance. The application included not only the subject property, but the entire Bl-1 district within which the subject property lies and which extends from Michigan Avenue on the west to Indiana Avenue on the east, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north. The amendment was approved by the City Council but was vetoed by the Mayor in January 1965. Plaintiffs thereupon instituted the present action in the Circuit Court.

Defendant, City of Chicago, filed a motion to dismiss the action on the ground that plaintiffs, in seeking a ruling in the instant action with respect to the subject property alone, had failed to exhaust all available local remedies, in that the City Council passed upon the application covering the entire Bl-1 district wherein the subject property lies, but never was presented with the opportunity of acting upon an application covering the subject property alone.

Defendant’s motion was denied and the trial court suggested that plaintiffs file with the City Council an application to amend the zoning ordinance by rezoning the subject property alone, in order to correct the situation. The subsequent application was denied in June 1966 and plaintiffs thereupon filed an amended complaint below setting up the said denial as proof of complete exhaustion of local remedies.

The subject property is located in a Bl-1 local retail district which is bounded by Michigan Avenue on the west, Indiana Avenue on the east, 95th Street on the south, and the alley next north of and running parallel to 95th Street on the north. In addition to the five vacant lots comprising the subject property, this area consists of seven more lots, five of which are vacant and one of which is improved with a single-family residence; the seventh lot is improved with a three-story mercantile building housing a shoe repair shop and several apartments. The rest of the block, to the north of the alley north of this area, is zoned single-family residential and is improved with one, two and three-family dwellings, the single-family dwellings predominating.

Moving directly east from the subject property, the area from Indiana Avenue on the west to a point across Prairie Avenue approximately 110 feet west of Forest Avenue on the east, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north, is zoned R3 general residential. This area is improved with eight single-family residences, a church, and a building housing a beauty shop in front and residence in the rear; there is also one vacant lot in this area. The rest of the block, to the north of the alley, is zoned R2 and is developed with one and two-family residences.

The area from the point approximately 110 feet west of Forest Avenue on the west to Dr. Martin Luther King, Jr. Drive on the east, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north, has a B2-1 restricted retail classification. This area is improved with four single-family residences and also contains several vacant lots. The area directly to the north of the alley is an R2 single-family residential district.

To the west of the subject property, from Michigan Avenue on the east to a point across Wabash Avenue approximately fifty feet east of State Street on the west, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north, is an R3 general residential district. The northwest corner of 95th Street and Michigan Avenue, directly across the street from the subject property, is vacant. The balance of the area is improved with one, two and three-family dwellings, in addition to containing one vacant lot. The northeast corner of 95th and State Streets is zoned B4-1 restricted service and is improved with a gasoline filling station. The area north of the alley next north of and running parallel to 95th Street is zoned and improved single-family residential. Running in a north-south direction, immediately west of State Street, is the Dan Ryan Expressway. Access to and from the Expressway and 95th Street is provided along State Street.

The south side of 95th Street, from State Street on the west to Michigan Avenue on the east, and from 95th Street on the north to the alley next north of and running parallel to 103rd Street on the south, is zoned R3 general residential. A public park fronts along 95th Street, from State Street to Michigan Avenue, and extends southward approximately three blocks. The park is diagonally across from the subject property.

From Michigan Avenue on the west to Indiana Avenue on the east, and from 95th Street on the north to the alley next south of and running parallel to 95th Street on the south, the area is zoned B4-1 restricted service. The southeast corner of 95th Street and Michigan Avenue, directly across 95th Street from the subject property, is developed with a gasoline filling station. Proceeding easterly along the south side of 95th Street from the filling station, the lots are improved with a construction office with residence above, a real estate office with residence above, a beauty shop, a restaurant, and a gasoline filling station on the southwest corner of 95th Street and Indiana Avenue.

To the south and southeast of the above described B4-1 district are areas zoned R2 and R3, having as their northern boundary lines the alley next south of and running parallel to 95th Street. Their east and west boundary lines are, respectively, Dr. Martin Luther King, Jr. Drive and the aforementioned public park.

Directly to the east of the above described B4r-1 district, from Indiana Avenue on the west to Forest Avenue on the east, and from 95th Street on the north to the alley next south of and running parallel to 95th Street on the south, the district is zoned Cl-1 restricted commercial. The area between Indiana Avenue on the west and Prairie Avenue on the east within this district is vacant. The area from Prairie Avenue on the west to the southwest corner of 95th Street and Forest Avenue on the east is developed with several factory and office buildings and a church.

After taking extensive evidence, the Master found, inter alia, that the proposed use would be compatible with the businesses developed in the general area along 95th Street; that the proposed use would have no appreciable effect upon the values of the surrounding properties ; and that the presence of the filling stations across the street from and a block to the east of the subject property, the proximity of the subject property to the Dan Ryan Expressway, the existence of traffic lights at the 95th Street and Michigan Avenue intersection, and the fact that 95th Street is a heavily traveled arterial highway, constituted “weighty evidence” in determining that the proposed use was desirable. The Master further found that the presence of the two existing filling stations within a block of the subject property did not substantially hinder the development of the area south of 95th Street, and that traffic generated by the development of the proposed use would not create any greater hazard to children in light of the present traffic situation along the heavily traveled 95th Street. The Master finally found that plaintiffs fully exhausted their local remedies with respect to application for an amendment to the zoning ordinance.

Two expert witnesses testified on behalf of the plaintiffs. William Lawrence, a city planning and zoning consultant, testified that the highest and best use of the subject property would be under such use as is permitted by a B4-1 zoning classification. His opinion was based primarily on the existence of the two gasoline filling stations across from the subject property and the general “business development” on the south side of 95th Street. The witness felt that since the existing filling stations have been developed, it would be proper for another filling station to exist on the north side of 95th Street, facing the developed stations. He further testified that since the 95th Street area is generally zoned for business uses, allowing the proposed change would have no adverse effect upon the surrounding and nearby properties. Mr. Lawrence stated that there is a traffic signal at the 95th Street and Michigan Avenue intersection and that additional pedestrian and vehicular traffic would be generated no matter what type of business use is developed upon the subject property. The witness testified that, upon his visit to the subject property, he observed “no great deal of pedestrian traffic other than, basically, the children.” He admitted on cross-examination that 95th Street, “in certain instances,” could constitute a proper zoning boundary line and that in “certain instances it would be reasonable if the city fathers allowed [gasoline filling] stations on one side and did not allow stations on the other side of the street, as they often do.”

John McNamara, a real estate appraiser, testified on behalf of plaintiffs and stated that, under its present zoning classification, the value of the subject property is $25,000, whereas it would be $70,000 under the proposed B4-1 classification. He further testified that development of the property as a filling station would “help the surrounding area instead of hurting it.” On cross-examination the witness testified that children use the city park across the street from the subject property, that the development of a gasoline filling station would generate a certain amount of additional vehicular traffic, and that it is important to protect the safety of children in situations of heavy traffic.

Richard McKennon, a city planner, testified on behalf of the defendant and stated that the subject property, from a zoning standpoint, should retain its present Bl-1 classification. His opinion was based upon the detailed zoning and development of the areas surrounding the subject property, including the development and zoning along both sides of 95th Street and the development and zoning in the neighborhood areas to the north and south of 95th Street. He stated that 95th Street is a logical zoning boundary and that it would not be proper, from a zoning standpoint, to employ an alley, such as exists to the north or to the south of 95th Street, as the zoning boundary between districts when a “natural boundary” like 95th Street is available.

Raymond Hayes, a real estate appraiser, testified on behalf of the defendant and stated that the value of the subject property, as presently zoned, is $35,000, and if zoned B4-1, would be valued at $52,500. He testified that the highest and best use of the subject property, based upon the community’s general health, welfare and morals, is as presently zoned. His reasoning was based upon the relatively high values of the buildings in the surrounding residential area, and the further fact that filling stations normally generate noxious odors, noise, debris, and the like. He also stated that he conducted a study of filling stations in the Chicago area and found that many of them failed financially within a short time of the inception of operations; the normal result of these failures was the removal of the gasoline pumps and the boarding up of the station building, giving the area a distasteful appearance. Mr. Hayes stated that the area in question was already adequately serviced by gasoline filling stations, and that the chances were “good” that a station developed on the subject property would fail financially.

Mr. Hayes further testified that, in addition to the noise, odors, debris, etc., generated by a filling station developed on the subject property, the value of nearby properties would decrease from 10 to 25 percent, depending on the proximity of the property to the filling station, and that a great deal of “sales resistance” is met with when such nearby properties are placed for sale. The witness stated that a filling station would generate more vehicular traffic which would be undesirable in view of the public park across the street and the children moving about in the area.

Mr. Fred Hoard, a local resident, testified that the local community association opposed the proposed change in zoning and that from three to five hundred residents in the area signed a letter to the Mayor requesting that the use be denied.

The first question raised by defendant is that plaintiffs failed to exhaust all available local remedies before instituting the instant action and consequently had no standing in the trial court. However, it is not necessary to resolve this matter since, assuming without deciding that plaintiffs did exhaust all available local remedies and that they did have standing before the court, we are of the opinion that the evidence fails to show that the City of Chicago Zoning Ordinance is arbitrary and unreasonable as applied to the subject property. Plaintiffs’ evidence proves no more than it would be “more advantageous” or “more desirable” for the subject property to be zoned B4-1 than as presently zoned.

A presumption of validity attends a zoning ordinance adopted pursuant to legislative intent; a party attacking such ordinance has the burden of proving, by clear and convincing evidence, that the ordinance is arbitrary and unreasonable, and that it is without substantial relation to the public health, morals, safety and welfare. Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643.

The evidence reveals that, apart from the B4-1 use adjacent to the Dan Ryan Expressway at the northeast corner of 95th and State Streets, the entire area fronting on the north side of 95th Street, from State Street on the west to Dr. Martin Luther King, Jr. Drive on the east, is zoned either R3 general residential, or Bl-1 local or B2-1 restricted retail. The area fronting on the south side of 95th Street, within the above east-west boundaries, except for the public park area to the west which is zoned general residential, is classified either B4-1 restricted service or Cl-1 restricted commercial. The logical conclusion is that the legislative intent was to employ 95th Street as the zoning district line between areas involving the development of differing intensity uses.

Plaintiffs’ evidence fails to prove that the 95th Street line of demarcation is unreasonably or arbitrarily drawn. Plaintiffs’ witness McNamara expressed no opinion as to whether 95th Street constituted a proper zoning boundary. Plaintiffs’ witness Lawrence, on the other hand, stated on cross-examination that “it could be possible ... in certain instances” that a highway such as 95th Street would constitute a proper zoning district boundary. It appears that the main thrust of plaintiffs’ case goes to showing that the development of the subject property as a gasoline filling station would be “more advantageous” or “more desirable” than its development as a use under the present zoning, rather than to showing that the line of demarcation is arbitrary or unreasonable as applied to the subject property. Heavily relied upon were the two filling stations across from the subject property in the B4-1 district on the south side of 95th Street. Yet, on cross-examination, plaintiffs’ witness Lawrence testified that “in certain instances it would be reasonable if the city fathers allowed stations on one side and did not allow stations on the other side of the street, as they often do.”

The fact that there would be an enhancement of the value of the subject property under a B4-1 classification, while a factor to be considered, is not decisive in determining the reasonableness of the existing classification. Jacobson v. City of Evanston, 10 Ill2d 61, 139 NE2d 205. Likewise, the fact that 95th Street is a heavily traveled highway is not, of itself, decisive. Kellett v. County of DuPage, 89 Ill App2d 437, 231 NE2d 706. Although it shows that the corner occupied by the subject property would be “ideal” for development as a gasoline filling station, plaintiffs’ evidence falls short of constituting the clear and convincing evidence necessary to rebut the presumption of validity attaching to the zoning ordinance or of proving that the ordinance is arbitrary and unreasonable as applied to the subject property.

In the case of LaSalle Nat. Bank v. City of Chicago, 6 Ill2d 22, 126 NE2d 643, plaintiff wished to erect a gasoline filling station on the east side of Sheridan Road in Chicago, within an area zoned for and developed with apartment uses. The west side of Sheridan Road was zoned for commercial uses and was developed with two gasoline filling stations. In reversing a lower court decree entered in favor of plaintiff allowing the desired use, the Supreme Court stated, at pages 28 to 31:

“To establish its contention that the zoning classification of the . . . ordinance as applied to the subject property is arbitrary and unreasonable, appellee has been content to introduce proof of the nature of the uses of the surrounding property, particularly the commercial and business uses existing across the street on the west side of Sheridan Road in the block in which the subject property is located. . . . In sustaining appellee’s position the trial court found that the subject property is not characterized by the residential area to the east but rather by the business uses on the opposite side of Sheridan Road. The evidence does not sustain and we cannot agree with this conclusion.
“. . . It cannot be said that the fixing of zoning lines with a different classification on either side of such boundary renders limitation on use of the property near the boundary line in a more restricted district unreasonable and void (citation omitted). Considering the width and character of Sheridan Road and the traffic it carries, we are not prepared to say that it was arbitrary and unreasonable to provide different zoning classifications for opposite sides of the street, especially in view of the use developments heretofore related which show that the properties to the north, south and east of the subject premises are devoted almost entirely to residential uses.”

See also LaSalle Nat. Bank v. City of Chicago, 68 Ill App2d 412, 216 NE2d 224; Reese v. Village of Mount Prospect, 72 Ill App2d 418, 219 NE2d 682.

Considering the effect a gasoline filling station would have on the value of surrounding properties and the health and safety of local residents, with its attendant noise, noxious odors, debris, ever present danger of fire or explosion, and the like; the probability of financial failure of a filling station at the site inasmuch as the area is already serviced by several stations; the presence of children in the area due to the public park across the street from the subject property; the uniform development of uses on the north and on the south sides of 95th Street consistent with the zoning classifications in the respective areas, it cannot be said that the ordinance does not bear a relationship to the public health, safety, welfare and morals. See Miller Bros. Lumber Co. v. City of Chicago, 414 Ill 162, Ill NE2d 149; Bulk Petroleum Corp. v. City of Chicago, 18 Ill2d 383, 164 NE2d 42; Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643.

For these reasons the decree is reversed.

Decree reversed.

McNAMARA and LYONS, JJ., concur.