author: MORAN, J.

text:
    Jack S. Mitchell, Plaintiff-Appellant, v. Missouri Pacific Railroad Company, a Corporation, Defendant-Appellee.
    Gen. No. 67-14.
    Fifth District.
    December 30, 1968.

      Meyer & Meyer, of Belleville, and Jo B. Gardner, of Monett, Missouri, for appellant.
    Walker & Williams, and Edward Maag, of East St. Louis, and Mark Hennelly, James A. Hesse, and Charles P. Lippert, of St. Louis, Missouri, for appellee.
   MORAN, J.

Plaintiff appeals from a verdict directed in favor of the defendant at the close of all of the evidence by the Circuit Court of St. Clair County.

Plaintiff sued under the Federal Employers’ Liability Act, 45 USC, section 51, which reads in pertinent part:

“Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the. officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track roadbed, works, boats, wharves or other equipment.”

Plaintiff alleged in his complaint that he was employed in interstate commerce as a laborer by the defendant, a common carrier; that he was required to scrape bird droppings and other foreign substances from defendant’s bridge and in so doing the air became polluted with particles of bird droppings and other foreign substances which resulted in plaintiff’s inhaling the foreign substances whereby he was caused to contract certain diseases. He further alleged that the defendant was negligent in one or more of the following respects:

“A. It failed to furnish plaintiff with a mask or other item to prevent inhalation of said foreign substances.
“B. It failed to furnish plaintiff with adequate and sufficient tools to perform said work without polluting the air.
“C. It failed to warn plaintiff of the dangers inherent in so performing his work.
“D. It failed to take any measure or do any act to prevent said pollution.”

In Sinkler v. Missouri Pac. R. Co., 356 US 326, 2 L Ed 799, 78 S Ct 758, the United States Supreme Court said at page 802: “However in interpreting the FELA, we need not depend upon common-law principles of liability. This statute, an avowed departure from the rules of the common law (cases cited) was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. (Cases cited.) The cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier.” This language was reiterated in Hopson v. Texaco, 383 US 262, 15 L Ed2d 740, at 742, 86 S Ct 765.

In Tennant v. Peoria & P. U. Ry. Co., 321 US 29, 88 L Ed 520, 64 S Ct 409, the Court said at page 412:

“It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. (Cases cited.)”

In Rogers v. Missouri Pac. R. Co., 352 US 500, 1 L Ed 2d 493, 77 S Ct 443, the Court said at page 499:

“Under this statute the test of a jury ease is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.”

Plaintiff contends that there was sufficient evidence in the trial court to furnish an evidentiary basis for a jury to find that defendant had actual or constructive knowledge of the danger of plaintiff’s contracting histoplasmosis from his employment and that therefore the defendant had a duty to warn plaintiff of this danger or in the alternative it had a duty to furnish plaintiff with some type of machine or respirator to minimize the danger of contracting histoplasmosis from inhalation.

Defendant contends that there was no evidence from which it could have been concluded with reason that defendant should have foreseen any harm to the plaintiff from the performance of plaintiff’s work, that there was no evidence that defendant knew or should have known of the disease of histoplasmosis or that defendant knew or could have known of the relationship between this disease and bird droppings.

In Urie v. Thompson, 69 S Ct 1018, the United States Supreme Court held that an occupational disease was an injury within the meaning of the Federal Employers’ Liability Act, saying at 1033:

“In our view, when the employer’s negligence impairs or destroys an employee’s health by requiring him to work under conditions likely to bring about such harmful consequences, the injury to the employee is just as great when it follows, often inevitably, from a carrier’s negligent course pursued over an extended period of time as when it comes with the suddenness of lightning. Silicosis is as much ‘injury,’ leading in time as certainly to permanent disability, as scalding from a boiler’s explosion. We do not think the mere difference in the time required for different acts of negligence to take effect and disclose their harmful, disabling consequences would justify excluding the one type of injury from the Act’s coverage or that such an exclusion would be consistent with its language, purposes, or unvarying standards of construction.”

In FELA cases the rule is that a verdict in plaintiff’s favor must stand when there is any evidence considered in the light most favorable to plaintiff that defendant was guilty of negligence which contributed in whole or in part to the injury. Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212. In Hausrauth v. New York Cent. R. Co., 401 F2d 634 (1968), the United States Court of Appeals said at 638:

“We do not seek to provide mandatory language for judicial charges in FELA cases. Different fact situations require different approaches. And we trust trial judges will always have somewhat differing styles. But since Congress has deliberately established a more protective principle for railroad employees than that of the common law, it is reversible error for a judicial charge to fail to employ and emphasize both the ‘in whole or in part’ causal language of the statute and the interpretative language of the Supreme Court in the Rogers ease.”

Plaintiff’s evidence established that histoplasmosis is a lung disease carried by inhalation of the dust from dried bird droppings; that plaintiff’s duties involved brushing and scraping bird droppings from the beams and braces of defendant’s railroad bridges; that X rays were taken of his chest shortly before April 27, 1960, which disclosed no abnormal appearance of his lungs; that he was examined by a doctor on May 27, 1968, and found to have histoplasmosis. The doctor described the ailment as a fungus type disease which is quite prevalent in most of Missouri, Eastern Kansas, Northern Arkansas and Northeast Oklahoma; that this fact was well known to medical science for the past 15 or 20 years. In answer to a hypothetical question the doctor testified that in his opinion the dust inhaled by plaintiff during his work for defendant carried the fungus which produced plaintiff’s illness. Other evidence disclosed that the first published case of histoplasmosis was in 1906 and that up until 1945 there had been 71 cases reported. By 1959 most doctors were aware of the disease and in the early 1950’s a reported 30 million people in this country had the infection, although in most cases it was dormant.

Construing the evidence on behalf of plaintiff most favorably to him, we believe there was ample evidence to justify a jury in finding that plaintiff contracted histoplasmosis from his employment and that his employer knew or should have known of the danger of his so doing.

Defendant argues that plaintiff was working in an endemic area and that the evidence disclosed that there was no known way to take protective means that would prevent a person from being exposed to or contracting this disease in an endemic area. Surely the jury could find that even though plaintiff was working in an endemic area, the risk of exposure to the disease of histoplasmosis was magnified by the nature of his work which required him to scrape bird droppings from defendant’s bridges thereby increasing the probability of acquiring the disease by inhalation. If the danger existed, defendant had a duty to warn if he knew or should have known the danger, even though there was nothing that defendant could have done to lessen the danger.

In Dowler v. New York, C. & St. L. R. Co., 5 Ill2d 125, 125 NE2d 41, our Supreme Court said at 130-131:

“. . . The rule is concisely stated in 56 CJS, Master and Servant, sec 284, as follows: ‘It is the duty of the master to warn and instruct his servant as to defects and dangers of which he knows, or ought, in the exercise of reasonable care and diligence, to know, and of which the servant has no knowledge, actual or constructive; prima facie this duty requires the master to warn and instruct the servant with reference to all abnormal or unusual, peculiar or extraordinary risks or hazards of the employment, and, where the business is complex or dangerous in its nature, the master is bound to point out to servants the particular defects and dangers incident thereto. Whether warning or instruction is necessary may depend on the age, intelligence, and experience of the employee, as well as on the nature of the danger, the character of the work, and the surrounding conditions and circumstances, but the duty does not depend on custom. Where there is a duty to warn, the master is negligent where he fails so to warn, and he cannot escape responsibility for his failure, even though the danger is one which in the ordinary course of business cannot be avoided, or by reason of his having used the utmost care to reduce the danger as much as possible, nor is it material how or by whom the dangerous conditions were created or that the servant could not have avoided the danger had he known of it.’ ”

Defendant also argues that there is no evidence in the record that the defendant knew or with reasonable care could have known that plaintiff was in any way exposed to any harm or ill-being from performing the work in the manner that it was done, because there was no proof that the defendant knew or had reason to know of a person ever before becoming ill or being in any way adversely affected by performing this or similar work in the manner it was being performed.

Crowley v. Elgin, J. & E. Ry. Co., 1 Ill App2d 481, 117 NE2d 843, was a case brought under the FELA to recover for injuries which plaintiff sustained from occupational contact dermatitis allegedly caused by petroleum and chromates repeatedly coming in contact with plaintiff’s skin. The plaintiffs secured judgments from which the defendant appealed. The action was predicated upon the alleged violation of the FELA in that the defendant was charged to be negligent in failing to take reasonable precautions discoverable by the exercise of ordinary care, to protect plaintiffs from the occupational hazard inherent in their work in and around diesel fuel and lubricating oils. Defendant claimed there, as the defendant does in the present case, that it could not be held liable for the contact dermatitis because the evidence failed to prove that it had actual or constructive knowledge of the hazard of dermatitis. It was established that prior to plaintiff’s injuries there had been no reported cases of a railroad employee contracting contact dermatitis from diesel oils or coating solutions. After a lengthy discussion of the facts and the legal principles involved in Urie v. Thompson, supra, the Appellate Court held that it was a question of fact for the jury as to whether or not the defendant could or might have known of the dangers to the plaintiffs from the exposure to the diesel oils and chromates. Certiorari was denied by the United States Supreme Court.

In Del Raso v. Elgin, J. & E. Ry. Co., 84 Ill App2d 344, 228 NE2d 470, plaintiff brought an action under the FELA to recover for injuries they incurred from lead poisoning they sustained while in the employ of the defendant railroad. It was also contended in that case that there was insufficient evidence to show that it knew or should have known of the presence of lead paint on the railway cars and that the court erred in refusing to instruct the jury on the issue of defendant’s lack of knowledge of the hazard of lead poisoning. The Appellate Court said at page 362:

“It is common knowledge that fumes from burning paint often carry noxious and toxic gases which can through constant exposure cause illness. From this it can be reasoned that since it is not necessary that the tortfeasor foresee the particular harm which befalls plaintiff, but that the tortfeasor saw or should have seen the general danger and taken precautions; therefore, the defendant in the instant case cannot maintain that because the specific hazard of lead poisoning was not foreseen, defendant was not generally failing to act with due care for the safety of the plaintiffs.
“The employer is presumed to know the nature of the material it places in the employees’ hands.”

In Gallick v. Baltimore & O. R. Co., 372 US 108, 9 L Ed2d 618, 83 S Ct 659, the Court said at 628:

“In the second place, in deciding whether respondent had reason to anticipate and foresee any harm to petitioner, the trial court instructed the jury to take into account ‘the past experience respecting the location and conditions in question’ and the fact ‘that no occurrence of the kind here alleged either occurred, or was known by defendant to have occurred, at or near this place before August of 1954/ The jury thus might have determined that, since there had been no similar incidents at this pool in the past, the respondent had no specific ‘reason’ for anticipating a mishap or injury to petitioner — a far too narrow concept of foreseeable harm to negative negligence under the Federal Employers’ Liability Act.” (Emphasis added.)

Defendant also argues that it cannot be held to. the standard of a specialist in the field of medicine and therefore cannot be held to have knowledge of the disease of histoplasmosis because there is no evidence the defendant knew or should have known of the disease; the fact that the disease was known to the medical profession does not charge the defendant with knowledge.

In Crowley, supra, the Appellate Court quoted with approval the following language from Baumgartner v. Pennsylvania R. Co., 292 Pa 106, 140 A 622:

“. . . and the master is presumed to know the nature and qualities of the materials he places in the hands of his servants. In other words, he is presumed to have such knowledge of matters pertaining to his business as is possessed by those having special acquaintance with the subjects involved. . . . An employer is presumed to be familiar with the dangers, latent as well as patent, ordinarily accompanying the business in which he is engaged.”

and also from Harvey v. Welch, 86 NH 72, 163 A 417:

“The argument that the defendant had no actual knowledge as to the physiological effect of oxalic acid fumes, if well founded in fact, is not effective in law to absolve him from liability. Being under a positive duty to exercise care for the safety of his servant, he was bound to make reasonable inquiry for the purpose of informing himself of the natural consequences of using the material which he furnished. A master ‘must take into account the properties of such substances as he employs for the purposes of his business and the operation of familiar physical laws upon these substances.’ ”

These two cases were also cited with approval in Del Raso v. Elgin, J. & E. Ry. Co., supra.

In Urie v. Thompson, 69 S Ct 1018, the court at page 1029 quoted with approval the following language from Sadowski v. Long Island R. Co., 292 NY at pages 455-456, 55 NE2d 497:

“Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect. (Cases cited.) It must be commensurate with known dangers. Defendant created the place in which the work was done and supervised the doing of the work by plaintiff and was aware for a period of at least sixteen years of the conditions under which plaintiff was required to work and of the means and methods by which its work was accomplished. It is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust, a fact which defendant was bound to know.”

Whether or not plaintiff contracted histoplasmosis from his employment, whether or not defendant knew or should have known of the danger and whether or not the defendant should have warned plaintiff of the danger, are jury questions. A conclusion of the jury in an FELA case, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Tennant v. Peoria & P. U. Ry. Co., supra. The trial court of St. Clair County erred in directing a verdict on behalf of the defendant.

For the foregoing reasons the judgment of the Circuit Court of St. Clair County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    Paul R. Gary, Plaintiff-Appellant, v. Dorothy Rogers, Defendant-Appellee.
    Gen. No. 68-57.
    Second District.
    December 30, 1968.

      Carbary, Carbary and Chapski. of Elgin, for appellant.
    Brody and Gore, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal is from a judgment on the verdict that found the defendant, Dorothy Rogers, not guilty and also from a denial of a post-trial motion filed by the plaintiff, Paul R. Gary, praying for a new trial or, in the alternative, for a judgment notwithstanding the verdict.

This is a personal injury action arising out of a collision which occurred on November 11, 1965, at approximately 9:00 p. m. at the intersection of Liberty Street and Lillie Street, Elgin, Illinois. Liberty Street is a four-lane, north and south highway with a thirty miles per hour speed limit. Lillie Street is an east-west street, intersecting Liberty Street and was controlled by stop signs.

On the night of the accident, plaintiff left his store and proceeded south on Liberty Street with his headlights on. As a result of the accident, he suffered amnesia and could not relate anything specific after a point two blocks from the intersection and does not remember the actual impact. He had no passenger in his vehicle.

The defendant, who was 18 years of age at the time of the accident, testified, under adverse examination, that she did not recall the accident but that she learned, after the accident, that it occurred somewhere in the intersection of Lillie Street and Liberty Street. She did recall that there was a stop sign for westbound traffic on Liberty Street and that she stopped, looked both ways and saw no cars. She started right out again. She did not see the plaintiff’s automobile before the collision. She also testified in a deposition that she had stated that she did not come to a complete stop; however, her present memory was that she had stopped.

The defendant’s passenger, Abbott McMiller, was sitting in the right front seat of the car at the time of the impact but the defendant did not know where he was at the time of trial. Mr. McMiller was not produced by either party.

The police officer testified that he arrived at the scene between 9:00 p. m. and 10:00 p. m. and found that the streets were wet from an earlier rain. He found the plaintiff’s vehicle about forty feet west of Liberty Street facing in a southwest direction and the other car, defendant’s vehicle, facing southwest against the corner of a house which was located at the southwest corner of the intersection. He further testified that the plaintiff was unconscious with a laceration on his head; that defendant’s vehicle had damage to the right front and right side; that plaintiff’s vehicle had damage to its left side at the front end and the left rear; that he found no skid-marks; and that he concluded that the accident happened somewhere in the northwest quadrant of the intersection.

There were no other witnesses produced who testified to the collision. The balance of the witnesses were medical witnesses.

Plaintiff complains that the verdict is against the manifest weight of the evidence; that the trial court erred in giving of defendant’s instruction which related to the duty of a driver having the right-of-way and that the trial court erred in its rulings concerning medical testimony. Defendant maintains that the plaintiff failed to prove that he was in the exercise of due care and that the instruction was proper.

Both parties have cited many cases relating to intersection collisions as authorities for their arguments. The court finds itself with a situation very similar to that found in Thomas v. Smith, 11 Ill App2d 310, 315, 137 NE2d 117 (1956), where the court stated:

“The defendants cite a number of cases where the courts have held that the plaintiffs have failed to prove negligence on the part of the defendants, or have failed to prove due care on the part of the plaintiffs. The difficulty of applying those cases to this case arises from the fact that each case presents a different set of circumstances. Several of them are cases where there were no witnesses to the accident, and reliance had to be on the circumstantial evidence in the case. That is the case here. Neither of the drivers remember just how the accident occurred. There were no eyewitnesses other than the drivers. The others involved in the accident were either asleep or dozing. The only facts from which conclusions can be drawn are those facts presented by the conditions of the cars themselves after the accident, the condition of the intersection, the position of the stop signs at the intersection, and the testimony of the officers and others who came to the scene of the accident a short time afterwards. To attempt to differentiate or distinguish between the facts in this case and the facts in other cases decided by our courts would be difficult and at best inconclusive. Each case must rest upon its own facts. It must be conceded that the question of whether or not the defendants were negligent and whether or not the plaintiffs were in the exercise of due care for their own safety are questions of fact.”

It is a well established rule that where the evidence is conflicting, in order for a verdict to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent, E. A. Meyer Const. Co. v. Drobnick, 49 Ill App2d 51, 56, 199 NE2d 447 (1964); Stone v. Guthrie, 14 Ill App2d 137, 151, 144 NE2d 165 (1957). Likewise, a verdict should not be set aside merely because the jury could have drawn different inferences from the evidence. In such situations this court will not substitute its judgment for that of the jury. E. A. Meyer Const. Co. v. Drobnick, supra, 56.

The damage to the vehicles and the position of the vehicles after the occurrence are equivocal. No witness testified to the speed, distance or position of the two vehicles immediately prior to or at the time of the impact. The jury did not have the benefit of the testimony of the defendant’s passenger, McMiller, either by evidence deposition or examination at trial.

The collision in the northwest quadrant of the intersection, between the front end of the plaintiff’s vehicle and the passenger’s side of the defendant’s vehicle is consistent with the plaintiff’s argument that the defendant negligently either darted in front of the plaintiff or failed to yield the right-of-way to the plaintiff, and, consistent with the defendant’s theory that the plaintiff failed to exercise ordinary care in driving through the intersection and failing to slacken his speed so as to avoid a collision.

“Considering the evidence presented and the inferences that might be drawn from the circumstances, we cannot say, applying the rule of Pedrick, that such evidence 'so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.’ ” Larson v. Harris, 38 Ill2d 436, 440, 231 NE2d 421 (1967). We therefore deny plaintiff’s prayer for judgment non obstante veredicto.

The defendant tendered three instructions to the court. His instruction #4 is IPI 70.01 which defines the common law duty of persons (both plaintiff and defendant in this case), operating motor vehicles and requires the giving of IPI 10.02 which was given as plaintiff’s instruction #9. Defendant’s instruction #8 is taken from IPI 10.03 setting forth the duty of the plaintiff to use ordinary care.

The plaintiff cites defendant’s instruction #4 as the one being complained of. However, in his brief, he quotes defendant’s instruction #1 as taken from plaintiff’s abstract. We assume, since his argument relates to #1, that it was a clerical error. The instruction reads:

“The fact that a vehicle has the right-of-way does not relieve its driver from the duty to exercise ordinary care in approaching, entering and driving through the intersection.”

This constitutes the last paragraph of IPI 70.02 which states the duty of drivers approaching an open or uncontrolled intersection and was given by the court over plaintiff’s objection.

Plaintiff’s instruction #3 (Plaintiff’s abstract shows two instructions numbered “3”; we will refer to the second of them) is IPI 60.01 which incorporates section 70(b) and (c) of the Uniform Act Regulating Traffic on Highways (111 Rev Stats 1965, c 95%, § 167 (b) (c)) and constitutes the statutory instruction regarding the duty of a driver approaching a stop sign at an intersection. Plaintiff’s instruction #3 states that the driver of a vehicle (the defendant in this case) approaching a stop sign shall yield the right-of-way to other vehicles. This was balanced, in our opinion, by defendant’s instruction #1 which related the duty of vehicles (the plaintiff in this case) approaching the intersection not faced by a stop sign. This we believe was a fair statement of the law and did not constitute error. As was stated in Froman v. Day, 87 Ill App2d 250, 231 NE2d 10 (1967), wherein the court, in quoting from Conner v. McGrew, 32 Ill App2d 214, 177 NE2d 417 (1961), had this to say at page 255:

. . The authorities agree that a driver on a preferential highway does not have an absolute or unqualified right-of-way that can be asserted regardless of circumstances, distances or speed. Such a driver may not plunge blindly ahead in reliance upon an assumption that the other motorist will obey the law and yield the right-of-way, nor may he heedlessly proceed into obvious danger. Rather, there is a duty upon such driver to observe due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when the danger is discovered or, by the exercise of reasonable care, should have been discovered.”

Defendant’s instruction #1 in conjunction with plaintiff’s instruction #3 did not, in our opinion, emphasize the duty of the plaintiff or work any prejudice to the plaintiff’s case.

Having so decided the foregoing issues on the question of liability it is unnecessary to consider plaintiff’s points regarding the examination of the medical witnesses.

Judgment affirmed.

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


author: MR. JUSTICE SEIDENFELD

text:
    City of Rockford, Illinois, a Municipal Corporation, Plaintiff-Appellant, v. John R. Floyd, Defendant-Appellee.
    Gen. No. 68-69.
    Second Judicial District.
    December 30, 1968.
    Rehearing denied February 7, 1969.

      William E. Collins, Corporation Counsel, of Rockford, and Larry E. Ohlson, Assistant City Attorney, for appellant.
    John R. Snively, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The City has appealed from judgments dismissing charges brought against the defendant under two ordinances of the City of Rockford. The defendant was issued an Illinois Uniform Traffic Ticket and Complaint charging him with the offense under local ordinance of driving while under the influence of intoxicating liquor. He was similarly charged with violation of the local ordinance which prohibited the operation of a motor vehicle in a careless manner. Pursuant to motion, the court below held that both ordinances were invalid as in conflict with the State Statutes regulating traffic, and dismissed the charges.

We are called upon to decide the validity of the ordinances, in the light of the State Statutes.

The City argues that police regulations of a municipality may differ from those of the State upon the same subject if they are not inconsistent; and that whereas here the general policy is the same as to both the ordinance and the State Statute, but the ordinance attaches a lesser penalty for its violation, there is no repugnancy. The defendant urges that the Uniform Act Regulating Traffic on Highways has preempted the field leaving the City without authority to enact ordinances relating to driving under the influence of intoxicating liquor or careless driving.

It is well settled that the powers of a municipality over its streets and highways are those delegated to it by the State; and that the State may assume complete control of the regulation of streets and highways and may deprive the municipalities of any power or authority with respect thereto. Ayres v. City of Chicago, 239 Ill 237, 245, 87 NE 1073 (1909). The grant of authority to municipalities relating to the control of streets and of traffic thereon is expressly subject to the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1965, c 24, §§ 11-80-1, 11-80-20). Whether the present Uniform Act Regulating Traffic has preempted the field of regulation as to driving while intoxicated and as to reckless driving so that no different regulation of these subjects is within the power of a municipality requires an interpretation of the Act with a view to its declared purposes and against the backdrop of prior legislation on the same subject.

The initial regulation of motor vehicles was by Act of 1907. The title of the 1907 law included the words “providing for . . . uniform rules regulating the use and speed thereof . . . .” The Illinois Supreme Court in Ayres v. City of Chicago (supra) stated that with reference to the Act of 1907 (page 245) :

“The legislature has by the Motor Vehicle Act taken the subject of the regulation of the speed and operation of automobiles out of the hands of local authorities and passed the Motor Vehicle law as a general, uniform regulation, applicable alike to all municipalities of the State. The effect of this law manifestly is to abrogate all municipal ordinances designed to regulate the use of motor vehicles passed prior to the time such law went into force and to deprive such municipalities of the power to pass such regulating ordinances in the future. The necessity for such uniform law was a matter for legislative determination, with which the courts have nothing to do. Clearly, the purpose of the legislature was to pass a new and complete law designed to take the place of all municipal ordinances or rules regulating the equipment and operation of motor vehicles.”

In Ayres the Court had before it section 13 of the Act of 1907 which in substance provided that an owner would not be required to obtain any other license or permit to use the vehicle except that issued by the Secretary of State, nor be required to comply with other provisions or conditions as to the use of said motor vehicles except as provided in the Act. The majority of the Court, however, held that a “Wheel Tax” ordinance passed by the City of Chicago was valid as a proper exercise of the taxing power of the City and that it was not in conflict with the Uniform Act because it did not purport to regulate the manner of operating the vehicle or equipping it. By Act of 1911 the following provision was added to the 1907 Act:

“That nothing in this Act contained shall be construed as affecting (a) the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor trucks and motor-driven commercial vehicles and motor vehicles which are used within their limits for public hire, or for making and enforcing reasonable traffic and other regulations except as to rates of speed not inconsistent with the provisions hereof.”

In People v. Sargent, 254 Ill 514, 517, 98 NE 959 (1912), the Court stated:

“A careful reading of the act of 1911 will show that the legislative intent is the same as expressed above in respect to the act of 1907. The manifest purpose of the legislature was to bring the whole subject of regulating the use of motor vehicles under the control of the State.”

However, in City of Chicago v. Walden W. Shaw Livery Co., 258 Ill 409, 416, 101 NE 588 (1913), the Court pointed out that the only question presented in the Sargent case was whether the Act was constitutional, and a decision of that question did not involve the question of the power of municipalities to make and enforce such reasonable regulations relating to motor vehicles as are not inconsistent with the regulations contained in said Act. The Court then held that the effect of the added proviso of the Act of 1911 qualified the general statements in both the Ayres case and the Sargent case, and it upheld the ordinance of the City of Chicago which prohibited the use of any motor vehicle in such manner as to permit the escape of any noxious smoke, etc. as not in conflict with the Motor Vehicle Act of 1911.

In Johnson v. Pendergast, 308 Ill 255, 262, 139 NE 407 (1923), the Supreme Court inferentially recognized that an ordinance of the City of Rockford providing that drivers in starting to turn from a standstill should give a signal in a certain way was to be given effect even though the 1911 Act covered that particular subject matter. The same result was reached directly in Pettit v. Weil-McLain Co., 252 Ill App 423, 426 (1929), involving a similar ordinance of the City of Chicago.

The same proviso referred to above as to the coordinate authority of the State and of municipalities remained in the various Motor Vehicle Acts passed subsequent to the 1911 Act, until the Act of 1935 was passed. In a case very similar to the one before us on the facts, the Village of Winnetka v. Sinnett, 272 Ill App 143, 146-148 (1933), the court upheld a drunken driving ordinance of the Village of Winnetka holding that the Motor Vehicle Act itself clearly indicated the intention of the General Assembly to leave the power of municipalities to make traffic regulations in full force except as to speed, and that the fact that the ordinance prohibited an act already prohibited by the Statute providing a less penalty for violation of its terms did not affect the validity of the ordinance where the general policy under both enactments was the same.

A comprehensive revision of the Motor Vehicle Laws was enacted in 1935. The provisions dealing with the coordinate authority of municipalities were contained in sections 122 and 123 of that Act. The particular provision of section 122 has remained unchanged in the Act before us and the provision as to additional laws provided in section 123 has been altered but in a manner in which we do not deem material to the issue before us. (C 95%, §§ 122, 123, 111 Rev Stats 1965, supra.) It is basically to the effect that the provisions of the Act shall be applicable and uniform throughout the State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance, rule or regulation in conflict with its provisions unless expressly authorized in the Act. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of the Act. Section 123 provides in substance that the provisions of the Act shall not be deemed to prevent local authorities from regulating certain enumerated areas under their jurisdiction.

While the Uniform Act Regulating Traffic has considerably altered the language found in the previous act as to coordinate authority of the State and municipalities, we do not perceive that it has accomplished a basic change in legislative intention, nor is it the expression of an intention by the State to preempt the field to the exclusion of the municipality.

Section 122 distinguishes ordinances, rules and regulations similar to provisions of the Act from addi tional traffic regulations and provides that neither shall be in conflict with the Act. Thus it appears that if the State had meant to preempt the field, the words “in conflict” in the first sentence of section 122 would be superfluous as a municipality would be without power to pass any law in the area. Since the words must be given meaning, the logical conclusion is that municipalities are empowered to pass laws, as long as they are not in conflict with the State law, and therefore the State has not preempted the field.

Although this court did not deal directly with the preemption question in City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870 (1967), it assumed the law to be settled that municipalities may exercise police power concurrently with the State, and that those regulations may differ from those of the State on the same subject, if not inconsistent therewith. (Page 227.) Curtis involved a municipal ordinance on drunken driving.

The same assumption is found in People v. Reiner, 6 Ill 2d 337, 344, 129 NE2d 159 (1955), another case which involved a municipal drunken driving ordinance. In that case the Supreme Court decided a case on a different issue, but it alluded to section 32 of the Drivers License Act which provided in part that “whenever any person is convicted of any offense under this Act or the Uniform Act Regulating Traffic on Highways or similar offenses under a municipal ordinance . . . .” (Emphasis added.)

It would appear that the State law itself then recognizes that a municipal ordinance may provide for a violation for drunken driving. (Section 32 of the Drivers License Act is now chapter 95%, section 6-204-2, Ill Rev Stats 1965.)

With respect to the drunken driving ordinance of the City of Rockford before us, the defendant also argues that it is in direct conflict with the State law. He contends that the conflict is created by the fact that the City ordinance does not contain any of the provisions relating to what constitutes driving under the influence of intoxicating liquor in regard to percentage of blood alcohol, nor does it tell how tests are to be administered, nor the result of the tests in regard to the presumption of intoxication. He also contends that a conflict is created because he may be convicted by only a preponderance of the evidence under the Rockford ordinance while he is entitled to the presumption of innocence and the proof beyond a reasonable doubt under the State law; that he may be charged under both laws and that therefore the burden upon him is greater and he is denied equal protection of the laws under the constitution. However, we believe that the answer to these contentions is that the City ordinance is less restrictive in its penalty than the State law, and that the burden of proof cannot be considered as a part of a penalty. The policy of both laws is the same. In City of Highland Park v. Curtis, supra, the history and the public policy of quasi-criminal actions for violation of municipal ordinances are thoroughly discussed. If defendant's contentions were upheld it would mean that practically all quasi-criminal actions would be in conflict with State laws, although nowhere has the Legislature clearly expressed such an intention. We believe that the arguments of the defendant as to the inequities of the situation should be properly directed to the Legislature.

Much of what we have said with reference to the drunken driving ordinance would also be applicable to the careless driving ordinance. However, here the defendant has made the additional contention that the definition of the offense of “careless driving” is vague, indefinite and uncertain. The ordinance provides for violation where a “high degree of negligence” is involved, while the State Statute (c 95%, § 145, Ill Rev Stats 1965) provides for a violation where a “willful or wanton disregard for safety” is involved. The meaning of the term “Willful and wanton” has evolved from a strict to a quite liberal definition in the decisions over the years. See Schneiderman v. Interstate Transit Lines, 394 Ill 569, 583, 69 NE2d 293 (1946) and Spivack v. Hara, 69 Ill App2d 22, 26-27, 216 NE2d 173 (1966). However, it designates a standard of conduct which can be defined. A “high degree of negligence” is not such a term of art and we have found no decisions defining its meaning. Nor can negligence and willful and wanton misconduct be considered synonymous. Bartolucci v. Falleti, 382 Ill 168, 176, 46 NE2d 980 (1943); Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill 525, 540, 74 NE 705 (1905). We find the Rockford ordinance as to careless driving void for vagueness and uncertainty. Lombardo Wine Co. v. Taylor, 407 Ill 454, 459, 460, 95 NE2d 607 (1950); Illinois Liquor Control Commission v. Chicago’s Last Liquor Store, Inc., 403 Ill 578, 582, 583, 88 NE2d 15 (1949). Ordinances are construed under the same rules as statutes. Village of Park Forest v. Wojciechowski, 29 Ill2d 435, 437, 194 NE2d 346 (1963).

We, therefore, reverse and remand the cause on the charge of driving while under the influence of intoxicating liquors, but affirm the trial court’s dismissal of the charge of careless driving.

Reversed and remanded in part, affirmed in part.

ABRAHAMSON and DAVIS, JJ., concur.

       “Section 39-99. Careless Driving.
      “Any person who drives any vehicle so as to endanger the safety of his own personal property or the safety of another person’s property by a high degree of negligence in the operation of the vehicle is guilty of careless driving. (Ordinance of 4-12-37, section 1483F; Ordinance of 1-10-55.)”
      “Section 39-100. Penalty for Violation of Section 39-99.
      “Any person violating any of the provisions of Section 39-99 shall be fined not less than $10.00 nor more than $200.00 for each offense. (Ordinance of 1-10-55.)”
      “Section 39-101. Driving under Influence of Alcohol or Narcotics.
      “It shall be unlawful for any person who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle.
      “Any person violating any of the provisions of this section shall be fined not less than $100.00 nor more than $300.00 for each offense. (Ordinance of 10-29-51.)”

       111 Rev Stats 1965, c 24, § 11-80-1.
      “11-80-1. Laws governing. All provisions of this Code relating to the control of streets, alleys, sidewalks and all other public ways are subject to the provisions of the Uniform Act Regulating Traffic on Highways, approved July 9, 1935, as heretofore and hereafter amended, and the Illinois Highway Code, approved June 8,1959, as heretofore and hereafter amended.”
      Ill Rev Stats 1965, c 95%, §§ 122, 123.
      “122. § 25. Provisions of act uniform throughout state. The provisions of this Act shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance rule or regulation in conflict with the provisions of this Act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Act, but such regulations shall not be effective until signs giving notice thereof are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate. As amended by act approved Aug 7,1961. L 1961, p 2869.

        “123. § 26. Powers of local authorities, (a) The provisions of this Act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from:
      “1. Regulating the standing or parking of vehicles;
      “2. Regulating traffic by means of police officers or traffic control signals;
      “3. Regulating or prohibiting processions or assemblages on the highways;
      “4. Designating particular highways as one way highways and requiring that all vehicles thereon be moved in one specific direction;
      “5. Regulating the speed of vehicles in public parks subject to the limitations set forth in section 50 of this Act;
      “6. Designating any highway as a through highway and requiring that all vehicles stop before entering or crossing the same or designating any intersection as a stop intersection and requiring all vehicles to stop at one or more entrances to such intersection;
      “7. Restricting the use of highways as authorized in Article XVI of this Act;
      “8. Regulating or prohibiting the turning of vehicles or specified types of vehicles at intersections.
      “(b). No ordinance or regulation enacted under subdivisions (1), (4), (5), (6), (7) or (8) of this section shall be effective until signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate.


author: MR. JUSTICE DAVIS

text:
    Walter Glaze, Plaintiff-Appellant, v. James Owens and Kerber Packing Co., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 68-61.
    Second Judicial District.
    December 30, 1968.

      Jordan, Akemann and Miles, of Elgin, for appellant.
    Gates W. Clancy, of Geneva, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court:

This is a personal injury action brought by the plaintiff, Walter Glaze, to recover damages for injuries which he sustained in a rear-end collision, wherein the defendant, James Owens, was the driver of a truck owned by the defendant, Kerber Packing Co., which struck the plaintiff’s station wagon. The jury returned a verdict for the defendants and judgment was entered thereon. The plaintiff filed a post-trial motion which was denied, and the plaintiff appealed.

The plaintiff contends that the trial court erred in withdrawing the question of wilful and wanton conduct from the jury; in giving an instruction relating to contributory negligence; and in admitting certain medical testimony. He also argues that the verdict was contrary to the manifest weight of the evidence.

The only occurrence witnesses were the plaintiff, the defendant Owens, and George Lunacek, who was driving another car in the area of the accident. There was little, if any, factual dispute. The testimony, however, was inconclusive as to some of the relevant issues. The accident occurred on a four-lane blacktop highway at approximately 3:30 p. m. on May 5, 1964. The weather was clear and the pavement was dry. A school bus, which had stopped to discharge some children, had been traveling in an easterly direction in the outside easterly lane of the highway. The car of the independent witness, Lunacek, was following the bus and stopped behind it, but in the inner of the two eastbound traffic lanes. The plaintiff’s car was approaching from the east and was traveling in a westerly direction. The defendant’s truck was following the plaintiff’s car.

The witness, Lunacek, testified that the school bus was stopped as the other cars were approaching; that its flasher warning lights were on and its warning arm, which indicated that approaching vehicles should stop, was extended; that both the plaintiff’s car and the defendant’s truck were approaching at approximately the speed limit of 45 m. p. h.; that the defendant’s truck was approximately four to five-car lengths behind the plaintiff’s car; and that both of these vehicles were in the outer lane of the two westbound traffic lanes. He further testified that the plaintiff’s car stopped for the school bus; that the defendant’s truck was unable to do so; and that the truck driver made an attempt to stop and to avoid the car, but was unable to do so and ran into the rear of the plaintiff’s car.

The evidence disclosed that there was a slight curve and ascending grade in the road at approximately the point of impact of the car and the truck; that there were three road signs at nearby locations to the east of the point of the accident, which were designed for vehicles traveling in a westerly direction — that in which the plaintiff’s and the defendant’s vehicles were traveling; and that one sign indicated the speed limit; another, a curve; and a third, a school crossing.

The plaintiff testified that when he first saw the school bus, the warning lights were on and the “stop” arm was extended; that at this time, his car was approximately 500 to 600 feet away from the bus; and that he was traveling from 35 to 50 m. p. h. He was asked whether he continued this speed when he saw the lights at 500 to 600 feet away, and he answered, “No.” He stated that he slowed up and stopped, and that in relation to the school bus, he did not know where he first applied his brakes. On cross-examination, counsel for the defendants asked the plaintiff, “Would you say you stopped within maybe 50 feet after you slowed up?” and he answered, “I would guess I stopped when I was 50 feet, completely.”

The plaintiff had lost the sight of his left eye prior to the accident, but his vision in the other eye was satisfactory and he had a valid driver’s permit. He further testified that he did not look in his rearview mirror prior to stopping; that he did not see the defendant’s truck at any time until after the impact; and that there was nothing to obstruct his view as he looked in a westerly direction just prior to the accident.

The defendant, Owens, did not testify extensively regarding the occurrence. He was given a citation for careless driving under an ordinance which provided:

“It shall be unlawful to operate any vehicle in the Village in a careless, reckless or wanton manner, or carelessly so as to endanger life or property.”

He testified that he had pled guilty to this citation, but that he did so because it was a “shorter way out.”

We believe that the trial court was correct in withdrawing the question of wilful or wantonness under these facts, from the jury’s consideration. Wilful or wanton conduct has been described: as a course of action which shows an actual or deliberate intention to harm or injure another; as an intentional disregard of a known duty which is necessary to the safety of others or to their property; and as an act committed under circumstances exhibiting a reckless disregard for the safety of others. In order for a person to be guilty of wilful or wanton conduct, he must be conscious of his conduct and conscious, from the surrounding circumstances, that such conduct would naturally and probably result in injury to another. Scarlette v. Hummer, 41 Ill App2d 138, 143, 144, 190 NE2d 370 (1963). The defendant’s conduct, as appears from the record, was not such that it would permit either the trial court or this court to approve a verdict finding the defendants guilty of wilful and wanton conduct, had the jury done so.

The plea by the defendant, Owens, to the traffic citation charging a violation of an ordinance prohibiting “careless, reckless, or wanton” driving, was not sufficiently specific to justify concluding that he was pleading guilty to wilful or wanton conduct. The plea was an admission against interest, which may be explained, as was done by Owens when he stated that in pleading guilty to the charge, he merely was looking for the shorter way out. Galvan v. Torres, 8 Ill App2d 227, 233, 131 NE2d 367 (1956); Cleary, Handbook of Illinois Evidence, 2nd Ed, § 17.12. The trial court acted properly in taking the question of wilful and wanton misconduct from the consideration of the jury.

We are compelled to agree with the plaintiff, however, that the verdict of the jury was contrary to the manifest weight of the evidence. We do not comprehend how the jury, under any interpretation of the evidence, could have failed to find that the conduct of the defendant, Owens, was negligent. The defendants suggest that they were thrown into a perilous situation, in part, because of the condition of the road; and that the curve in the road and the grade were factors which contributed to thrusting them into such situation. However, it is certain that the defendant, Owens, should have seen the school bus in ample time to have his truck under sufficient control to enable him to stop prior to reaching the school bus, as did the plaintiff.

The plaintiff testified that he saw the school bus from 500 to 600 feet away. The independent witness, Lunacek, who had stopped his car in the rear of the school bus, testified that he saw both the plaintiff’s and the defendant’s vehicles approaching from a sufficient distance to enable him to estimate their speed. His estimate appears accurate from the plaintiff’s testimony as to the speed he was traveling. The cab of the truck driven by Owens was higher than the driver’s seat of either the plaintiff’s or the witness’s car, and he should have been in a better position to see the bus than either the plaintiff or Lunacek.

There was nothing to block the vision of either the plaintiff, the defendant Owens, or Lunacek. Neither the grade nor the curve was extreme. The plaintiff and Lunacek both testified that the curve and grade were slight. These conditions could afford no justification for the defendant’s failure to be aware of all existing circumstances as he approached the point of the impact of the truck and the car.

The evidence in its entirety, when viewed in the light of common experience, knowledge and observation in the ordinary affairs of life, supports the conclusion that the defendant was “looking but not seeing.” Had he maintained a proper lookout and been alert to, or aware of the circumstances with reference to the highway ahead, he would have known that he would be called upon to stop his vehicle regardless of what the plaintiff did, because of the stopped school bus. Had he looked and seen, he also should have expected that the plaintiff would stop his car as he was required by law to do.

The jury verdict for the defendants, under these circumstances, constituted a finding that either the defendant Owen’s failure in this respect did not constitute negligence or that the plaintiff was guilty of contributory negligence, or a finding both that the plaintiff was guilty of contributory negligence and that the defendants were not guilty of negligence. Pantlen v. Gottschalk, 21 Ill App2d 163, 170, 157 NE2d 548 (1959). We conclude that a finding that the defendants were not guilty of negligence was against the manifest weight of the evidence. We will next consider whether under the evidence, the plaintiff was guilty of contributory negligence.

The defendants also stress that the plaintiff applied his brakes suddenly and thereby placed the defendant, Owens, in a perilous situation from which he was unable to extricate himself and to avoid the accident. They contend that the sudden application of brakes by the plaintiff was evidence that the plaintiff was guilty of contributory negligence and that the defendant, Owens, was not negligent in his failure to avoid the accident. This contention presents a closer question.

However, the defendant, Owens, did not testify that the plaintiff stopped his car suddenly. In order to support this contention, the defendants rely upon the testimony of the plaintiff wherein he stated that after seeing the school bus some 500 to 600 feet away, he did not continue at the same speed, but rather, slowed up and stopped. Defense counsel then asked: “Would you say you stopped within maybe 50 feet after you slowed up?” The plaintiff answered, “I would guess I stopped when I was 50 feet, completely.” From this testimony, it is not reasonable to infer that the plaintiff stopped suddenly, thereby placing the defendant in an unavoidable perilous situation. Fairly read, the testimony of the plaintiff indicates that he slowed up after seeing the school bus some 500 to 600 feet away, and then stopped. After he slowed up, he “guessed” he stopped within the distance of 50 feet suggested by the defense counsel.

The plaintiff admitted that he had not looked in his rearview mirror prior to stopping. However, we do not believe that this admission alone would permit the jury to properly find that the plaintiff was guilty of negligence proximately contributing to the cause of his injury. The defendants suggest that had the plaintiff looked in his rearview mirror, he might have pulled onto the shoulder and avoided the accident. The fact that he might have thus avoided the accident, does not, per se, render him guilty of contributory negligence.

Under proper circumstances, the combination of factors, such as the failure of a driver to look into his rearview mirror and at the same time apply his brakes, might render him guilty of contributory negligence. However, such circumstances were not presented in the case at bar. Consequently, we do not believe that the record before the jury warranted a finding that the plaintiff applied his brakes suddenly, or that he was otherwise guilty of contributory negligence; and we believe that such finding, if made, was against the manifest weight of the evidence.

Both parties have cited a number of cases involving rear-end collisions. While these cases are helpful, each contains distinguishing factors and cannot be said to be controlling.

Counsel for plaintiff cited Kocour v. Mills, 23 Ill App2d 305, 162 NE2d 497 (1959) as a case having a factual situation similar to the case at bar. Therein, it was undisputed that the plaintiff had been stopped at an intersection for approximately ten seconds before his car was struck in the rear by the defendant’s car. The defendant testified that he had been following another car in the passing lane as he approached the intersection ; that the light turned to red, and the car in front of him stopped; that he did not have time to stop without hitting the car in front of him; and that he attempted to go between that car and the plaintiff’s car.

In Kocour, no question of contributory negligence was involved. The court held that it was proper to hold the defendant guilty of negligence as a matter of law in that he was familiar with the area and knew of the traffic signal; that just prior to the collision, he was either driving his car too fast or was following too closely behind the preceding car when it stopped in obedience to a traffic signal; and that the defendant knew, or should have known, that the traffic signal could change at any moment and that he should have had his car under sufficient control to have been able to stop if this had happened.

In Ceeder v. Kowach, 17 Ill App2d 202, 149 NE2d 766 (1958), also cited by the plaintiff, the jury returned a verdict for the defendant. The question of contributory negligence was not involved in the case. The defendant had been following the plaintiff in a lane of traffic and struck the plaintiff’s car in the rear when the plaintiff stopped for a red light. The defendant’s car had skidded on wet pavement. The Appellate Court stated that the defendant was guilty of negligence as a matter of law since he should have foreseen that the plaintiff would probably have to stop for a red light; that the traffic in adjoining lanes would prevent him from turning out of his lane; that he would have to apply his brakes and would probably skid on the wet pavement; and that if he were traveling too fast or too close, he would then strike the plaintiff’s car. The Appellate Court reversed and remanded on the issue of damages only.

In Houchins v. Cocci, 43 Ill App2d 433, 193 NE2d 597 (1963), also relied upon by the plaintiff, the jury returned a verdict in favor of the defendant in a case involving a rear-end collision. The Appellate Court reversed and remanded on the damage issue only. Again, there was no real issue as to contributory negligence even though the defendant contended that the plaintiff was negligent in stopping in the middle of the road without warning and reason. The plaintiff, however, had stopped in the left hand lane of two northbound lanes of traffic, and was waiting to make a left hand turn into a Christmas tree lot. It was undisputed that he had been stopped at this point for a period of time before his car was struck by the defendant’s car.

The defendant stated that she momentarily took her eyes off the road to look at her baby, but that she was not negligent since she did not expect someone to be stopped in the middle of the road where there was no reason to stop. The Appellate Court held that under these facts the trial court should have directed a verdict for the plaintiff on the issue of liability.

The defendant also has cited certain rear-end collision cases which are helpful, but not controlling. In Tatum v. Hooker, 69 Ill App2d 6, 216 NE2d 165 (1966), the Appellate Court affirmed a judgment in favor of the defendants in a case involving a rear-end collision. The testimony in the case was conflicting. The plaintiffs testified that their car had been stopped over 30 seconds prior to the time they were struck. The defendant testified that the cars were traveling in a lane of traffic, approximately two or three feet apart, at a speed of about two to three miles per hour; that a car was backing out of an angle parking stall in front of the plaintiff’s car; that the car that was backing out stopped, and the plaintiff’s car stopped without warning or signal; and that there were no stop lights on the rear of the plaintiff’s car.

The Appellate Court stated that under the contradictory versions of what had happened, the jury could have found that the plaintiff was negligent in coming to a stop without a warning, or that the accident was unavoidable; that under such circumstances a verdict should not have been directed; and that in view of the conflicting evidence, the verdict was not contrary to the manifest weight thereof.

In Cook v. Boothman, 24 Ill App2d 552, 165 NE2d 544 (1960), the evidence was again conflicting with reference to what had happened in a rear-end collision. The plaintiff testified that she stopped her car at a stop sign, and while waiting there, was struck from the rear by the defendant’s car. The defendant testified that the plaintiff had stopped her car at the stop sign and that she then moved ahead; that he brought his car to a stop at the sign, and while stopped, he was looking for vehicles approaching on the adjoining street and not for the plaintiff’s car, which he thought had gone on; and that as he pulled out he struck the plaintiff’s car in the rear. The Court, at page 558 — after referring to a number of cases which it acknowledged to collective!y hold that a driver of an automobile, who does not maintain a proper lookout ahead for traffic, is negligent — stated that the driver of the vehicle which is struck is not necessarily entitled to recover as a matter of law. Such driver must also be free of contributory negligence. The court said that the conflicting testimony before it did not clearly show that the plaintiff was free from contributory negligence, and it thus, affirmed the verdict of the jury in favor of the defendant.

In Ferdinand v. Lindgren, 32 Ill App2d 133, 177 NE2d 10 (1961), the Appellate Court affirmed a judgment for the defendant in an accident involving a rear-end collision. The defendant’s car, prior to the collision, was in good condition and he had experienced no difficulty in stopping his car when required to do so. The defendant was aware that the streets were icy, and when the plaintiff’s car stopped, he was approximately four-car lengths behind him and was traveling between five and ten miles an hour. The defendant applied his brakes but the car was on ice and simply would not stop. The Appellate Court held that under these circumstances the jury might well have found the defendant to have been in a helpless condition when he found his car was on ice and he was unable to stop it.

In most of the cases cited by the plaintiff, there was no issue as to contributory negligence. In most of the cases cited by the defendants, there was conflicting testimony as to the nature of the occurrence, leaving the jury free to decide which of the factual versions it would accept, or, as in the last cited case: whether the defendant was in a helpless condition, not of his own making.

In the case at bar there was no conflicting testimony with reference to what happened. The defendant testified that he had been over this road on prior occasions and was familiar with it. There were warning signs just prior to the place of the collision, including a sign indicating a school crossing ahead. The plaintiff, whose car was immediately in front of the defendant’s truck, was able to see the flashing warning signals of the school bus at least 500 to 600 feet away. The driver coming from the other direction was able to see the vehicles of both the plaintiff and the defendant Owens, as they were approaching the school bus. The highway had four lanes at this point, and the defendant had not only the alternative of stopping prior to hitting the plaintiff’s car at the point where the school bus was stopped, but also, of turning into the inside lane of traffic, or onto the shoulder to avoid the plaintiff’s car, if he could not stop in time. The defendant did not complain in his testimony of any sudden stop by the plaintiff, and the plaintiff’s testimony does not justify a conclusion that he came to a sudden stop.

While we are aware that the verdict of the jury may not lightly be set aside by this court (Tihay v. Aurora City Lines, 79 Ill App2d 107, 113, 223 NE2d 171 (1967)), a review of the entire record convinces us that the verdict of the jury was palpably erroneous and wholly unwarranted from the manifest weight of the evidence, and that it is, therefore, our duty to reverse and remand.

As heretofore stated in the opinion, any finding by the jury that the plaintiff was guilty of contributory negligence was against the manifest weight of the evidence. And, while we do not believe that, under the evidence, the defendants were guilty of negligence as a matter of law, we do believe that the record established sufficient negligence on the part of the defendant, Owens, to render the verdict in favor of the defendants, contrary to the manifest weight of the evidence.

Since the foregoing conclusion is determinative of the case, we believe that no purpose would be served in an extended discussion of the issues raised by the plaintiff as to the jury instruction and the medical testimony. We note in passing that we conclude that the trial court did not err in either respect.

For the reasons stated herein, the judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

MORAN and SEIDENFELD, JJ., concur.


text:
    Henry H. Ruck, et al., Plaintiffs-Appellees, v. Midwest Hunting and Fishing Club, Estate of Mabel E. Grimm, Deceased, Richard Tobias, et al., Defendants, and James Herman, Defendant-Appellant.
    Gen. No. 68-102.
    Second District.
    December 30, 1968.
    Rehearing denied February 3, 1969.

      Frank M. Daly, of Waukegan, for appellant.
    Thomas P. Stepanich, of Mundelein, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Defendants appeal from a decree which finds and decrees that plaintiffs, together with all other owners of lots in the Grand Bluff subdivision, have a prescriptive right to travel over a certain road for purpose of ingress and egress to the lots in the subdivision.

The plaintiffs are the owners of certain lots in the subdivision. The defendant, James Herman, is the owner of adjacent premises which he devotes to farming. Between the premises of the plaintiff and defendant is a right-of-way known as Grand Avenue and dedicated in the original plat of subdivision in 1892. Grand Avenue is a 14-foot easement apparently intended to provide the only access to the property of the plaintiffs. Over the years gravel has been placed on the access route to plaintiffs’ property and it appears that, at the time the case was heard in the trial court, the gravel was not on the dedicated right-of-way of Grand Avenue but rather adjacent to it and mostly on the property of the defendant, Herman. In addition to that, the width of the gravel drive or roadway had increased over the years as a result of the addition of gravel and the spreading of the gravel caused by the use of the roadway. In past years various of the plaintiffs have put up fences and, in one or two cases, have placed garages on the right-of-way of Grand Avenue. Except for the gravel roadway, Herman’s property is unenclosed and is devoted to agricultural purposes.

There is a dispute in the evidence as to when the roadway came into existence at its present location, but in view of the conclusions we reach, a finding in that connection is not necessary. Over the years, whenever the opportunity presented itself, the defendant and his predecessors in title objected to the various encroachments by the plaintiffs beyond the dedicated right-of-way of Grand Avenue. The evidence is clear and uncontradicted that on each occasion, when given the opportunity, the defendant objected, instructed the plaintiffs or their predecessors in title to remove the obstructions and, in general, engaged in a consistent course of conduct indicating that he did not acquiesce in the obstructions.

The plaintiffs brought this suit alleging that they had acquired a permanent right to use the roadway as it now exists by adverse possession. In the alternative, plaintiffs allege that they had an easement by implication or, in the further alternative, that they had a license from the defendant, Herman, which the defendants should be enjoined from revoking.

The defendant, Herman, urges that the only possible theory upon which the plaintiffs could prevail is by proof that they had an easement by prescription; and that the plaintiffs could not have an easement by prescription because they had failed to prove that the use of the road was continuous and uninterrupted for a period of twenty years, that it was under a claim of right, and that the defendant acquiesced in the use of the road.

The plaintiffs concede that they do not have an easement by prescription but claim that their rights arise by adverse possession.

Significantly, the plaintiffs have not claimed and do not claim that they ever acquired any title to the premises in question. At the very most they claim a right to use the premises and, indeed, the trial judge found only that the plaintiffs “have a prescriptive right to travel over the said existing traveled road.”

Through the years the courts have, on many occasions, distinguished rights acquired by prescription and by adverse possession. The two doctrines have similar elements to some degree, but they do vary in elements of proof required, and their purpose is quite different. Adverse possession is concerned with the acquisition of fee title to certain property, whereas prescription applies to the acquisition of incorporeal hereditaments and not fee title, Plaza v. Flak, 7 NJ 215, 81 A2d 137. See also 2 CJS, “Adverse Possession,” § 1, page 512. Therefore, since the plaintiffs are not claiming that they own or have acquired fee title to the premises in question, but only claim a right-of-way, they must prevail, if at all, under the rules applying to easements by a prescription and not under the rules applying to adverse possession.

To establish an easement by prescription it is necessary for the plaintiffs to show that the use was adverse, uninterrupted for a period of twenty years, exclusive, continuous and under a claim of right, Lang v. Dupuis, 382 Ill 101, 107, 46 NE2d 21 (1943).

The phrase “exclusive” does not mean that no one may use the easement except the claimant but only that the claimant’s right does not depend on a like right in others, Rush v. Collins, 366 Ill 307, 314, 315, 8 NE2d 659 (1937).

The doctrine of a prescription arose out of the ancient common-law fiction of a “lost grant.” It developed on the theory that where a right-of-way existed with the knowledge and acquiescence of the owner of the premises for a sufficient period of years, it was presumed that he or his predecessors in title had actually granted an easement and that the easement document had been lost. Otherwise, presumably, the owner would not have acquiesced in such enjoyment for so long a period when it was to his interest to have interrupted it, unless he felt conscious that one party enjoying it had a right and title to it which could not be defeated. The fictional loss of the easement was created so that the presumptive intention of the parties and the acquiescence of the owner of the land could be carried out, Rush v. Collins, supra, at page 315.

While the law presumes an easement when facts are shown which admit of such presumption, yet such facts are not presumed but must be established by the greater weight of the evidence. Bontz v. Stear, 285 Ill 599, 604, 121 NE 176 (1918); Rush v. Collins, supra, at page 315.

The need for the presumption and the remedy of prescription arose because statutes of limitations for the acquisition of title by adverse possession were generally held not to apply to easements or other incorporeal rights. The doctrine of prescription arose in the common law as an analogy to acquiring title to land by adverse possession with the differences in applicable principles which we have noted. Hester v. Sawyers, 41 NM 497, 71 P2d 646, 649 (1937).

We come then to a consideration of what is meant by the requirement that the use be “adverse” to the owner. It is obvious that this use cannot be with the permission of the owner, since where permission is granted the use cannot ripen into a prescriptive right regardless of the length of time such use is enjoyed. Bontz v. Stear, supra, at page 604.

A study of the cases indicates to us that the requirement of adverse use means that the use must be with the knowledge and acquiescence of the owner but without his permission. This is consistent with the theory of the “lost grant” since it is presumed that where a person knows of the use of his land by another and acquiesces, he recognized the claim of the other to make that use of the land.

As the Supreme Court said in the case of Cleveland, C., C. & St. L. R. Co. v. Munsell, 192 Ill 430, 435, 61 NE 374 (1901), “To create in him an easement by prescription, there must have been not only a continuous and uninterrupted enjoyment and use of the passway for a period of twenty years, with the acquiescence of the owner but it must have been adverse to the owner and under claim of right. . . .” In Wills v. Babb, 222 Ill 95, 106, 78 NE 42 (1906), the Supreme Court said, “The law is well settled that before a prescriptive right to flood the land of another can be sustained, it must appear (1) that the lands have been flooded for a period of twenty years or more; (2) that the flooding was adverse and uninterrupted; and (3) that the flooding took place with the knowledge and acquiescence of the land owner.”

The rule that acquiescence is necessary to establish an easement by prescription was also apparent from the case of Allen v. Michel, 38 Ill App 313 (1890), wherein the court said at page 319, “Upon the point of right by prescription, we think it is clearly settled that the acquiescence of the plaintiff is an essential element, necessary to be established by the defendant. Mere knowledge is not sufficient . . . .”

Applying the foregoing rule of law to the facts before us it is clear that the defendant had knowledge of the use of the road on their property by plaintiffs but never acquiesced in such use. The defendant and all of his predecessors in title followed a consistent course of conduct. On every occasion they objected to the use of their premises for the roadway. On no occasion did they acquiesce or engage in any conduct which indicated acquiescence or that the plaintiffs had any claim of right in the premises.

We conclude, therefore, that the plaintiffs have failed to prove one of the essential elements to their claim. They have failed to prove that the defendant acquiesced in their use of the property.

The cause is therefore reversed and remanded to the trial court with instructions to dismiss the complaint for want of equity.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.