author: RYAN, J.

text:
    Mary Kay Lewis, Plaintiff-Appellant, v. Ralph Elwood Lewis, Defendant-Appellee.
    Gen. No. 68-107.
    Third District.
    March 12, 1970.

      Elliott B. Young, of Peoria, for appellant.
    Vonachen, Cation, Lawless, Trager & Slevin, of Peoria (Thomas H. Trager, of counsel), for appellee.
   RYAN, J.

This is an appeal from a decision of the Circuit Court of Peoria County modifying the child visitation and support provisions of a Decree of Divorce and ruling on certain Orders to Show Cause previously entered against both parties.

Plaintiff-Appellant, Mary Kay Lewis, and DefendantAppellee, Ralph Elwood Lewis, were married on May 23, 1959. One child, a son, Ralph Ernest Lewis, was bom to the parties on June 26, 1960. Plaintiff filed suit for divorce from defendant in the Circuit Court of Peoria County on February 7, 1966, on the grounds of extreme and repeated cruelty. An entry of appearance signed by the defendant was filed along with the complaint. On the same day, the Court entered a decree granting plaintiff a divorce on the grounds that defendant “has been guilty of extreme and repeated cruelty substantially as set forth in the Complaint.” The decree also ordered the defendant to convey certain real estate to the plaintiff and awarded the plaintiff all of the household furniture and furnishings. It awarded the custody of the child to the plaintiff subject to the right of defendant “to visit said child at reasonable times and places.” The defendant was ordered to pay $30 per week for child support and to pay all medical expenses of the minor, and to maintain and pay the premiums on a certain $10,000 life insurance policy naming the child as irrevocable beneficiary thereof. The defendant was further ordered to pay all the just debts incurred during the marriage and to pay the plaintiff’s attorneys $250.

Within thirty days after the entry of the Decree of Divorce, the defendant received notice of the divorce, read a copy of the decree and consulted a lawyer for advice. A meeting subsequently took place between the parties, and they conferred with their attorneys. Following this, the defendant deeded the plaintiff his interest in the real estate as ordered in the decree and the plaintiff simultaneously reconveyed the same interest back to him, thus satisfying the direction of the decree yet nullifying its effect. The plaintiff testified that this action followed the statements of the defendant and the defendant’s lawyer that they would try to throw the whole divorce out of Court if she didn’t accept this arrangement. The defendant testified that an agreement was made between the plaintiff and defendant because he wouldn’t give up his interest in the home while he was still on the mortgage and because he objected to paying the bills incurred just prior to the divorce and her attorneys’ fees. The defendant decided not to file any petition attacking the decree and did not do so.

On March 15, 1968, which was more than two years following the entry of the Decree of Divorce, the defendant filed a petition to modify the decree which asked that the child support payments be reduced from $30 to $15 per week due to his financial reverses; that the Court fix a time and place for child visitation due to difficulties being encountered in this regard; and that an insurance trust arrangement be set up to replace the direction regarding life insurance in the original decree.

The plaintiff filed a verified reply setting forth that the defendant was in default in the payment of support monies in the sum of $605 as of March 29, 1968; that the defendant had not paid the attorneys’ fees nor certain family debts as ordered in the decree; denied that the defendant sustained financial reverses; set forth that the defendant had enjoyed frequent visitation with the minor; and prayed for an affirmative order directing the defendant to comply with the decree.

Simultaneously with the filing of the verified reply, the plaintiff petitioned for a Rule to Show Cause why the defendant should not be held in contempt of Court for his neglect and refusal to comply with the decree. An Order to Show Cause was entered on March 29, 1968. Certain other pleadings not pertinent hereto were also filed subsequent to the last mentioned date.

By agreement of the parties, a consolidated hearing on the several pleadings was held on August 28, 1968. Following this hearing, the Court entered an order which found that the parties had an agreement “based upon adequate consideration” that the plaintiff would accept a reduction in child support from $30 to $20 per week “effective on or about July 3, 1967” and that the plaintiff would assume certain indebtedness of the parties; that from July 3, 1967, to August 28, 1968, the difference in the amount of support reduced from $30 to $20 is $780; that the defendant is not in contempt of Court; that the plaintiff is estopped from collecting back child support in the amount of $780, collecting the bills referred to and from collecting attorney fees in the amount of $250; that there has been a material change of circumstances in the financial standing of the defendant and that there has been no evidence of financial hardship on the part of the plaintiff. The Court then ordered that the decree of January 7, 1966 (the date here being incorrect) be modified in the following respects : Child support was reduced from $30 to $20 per week. Visitation rights were explicitly spelled out. The defendant was directed to execute an insurance trust as requested and ordered that the beneficiary could not be changed until the child reached twenty-one years and that “to the extent that any part of the trust fund is not used for the purposes specified, after said child reaches the age of twenty-one, said defendant may terminate the trust and dispose of what is left as he pleases.”

The defendant testified that subsequent to the Decree of Divorce he and his former wife entered into agreement concerning reduction of child support, payment of attorneys’ fees and payment of the family bills as ordered in the original decrees, all of which will be hereinafter discussed. The defendant deeded his interest in the marital home to the plaintiff in 1967. Defendant claims this last conveyance was done in accordance with their aforesaid agreements. Plaintiff claims it was done to enable defendant to finance another house he was purchasing. This was the second conveyance from the defendant to the plaintiff. The first conveyance was made shortly after the original decree and was nullified by the simultaneous conveyance back to the defendant as previously related. He stated that at the time the original Decree of Divorce was entered, he was earning in the neighborhood of $11,300 or $11,100, but that in 1967 it went down to about $9,000 because he had changed jobs. At the time of the hearing, he stated that he was earning $171.16 weekly which, after deductions, left him $130 net. He said that his weekly expenses amounted to $153.56, figuring in the $30 weekly support payments. He did some outside work photographing weddings but this provided only slight income and he got very little overtime work at his regular job. Plaintiff, on the other hand, claims that defendant is now making more than he was before. Defendant testified to difficulties and problems involving child visitation. He stated that his efforts at visitation had been frustrated. He related an incident when he wanted to take the child fishing and the plaintiff refused to let him take fishing poles from the garage, argued with him and called the police.

Plaintiff is employed by an attorney. Plaintiff denied any agreement with the defendant. She testified to the defendant’s irregular and insufficient record of child support payments and his delinquencies in that respect. There is no question but that the support payments have not been made in compliance with the original decree and that a delinquency exists. With regard to the fishing pole incident, plaintiff said she was afraid to let the child go because the defendant had previously told her he kept a gun in his car.

The child in this case is in poor health and has had several mouth and throat operations. He may require further surgery.

Plaintiff-appellant raises several issues on appeal: First, was it error to reduce the child support payments from $30 to $20 per week? Second, was it error to modify the visitation provisions of the original decree ? Third, was the trial court justified in divesting plaintiff of (a) her right to past due child support payments, (b) attorneys’ fees, and (c) payment of family debts all as provided in the decree by declaring an equitable estoppel to exist by virtue of an extrajudicial agreement between the parties? Fourth, did the court err in finding the defendant not to be in contempt of court? Fifth, was it error to direct the implementation of an insurance trust in lieu of the provisions of the original decree as to life insurance.

The issue on a petition for modification of child support payments is whether there has been a material change of circumstances of the parties since the entry of the decree. Changed circumstances which permit modification of child support payment provisions relate to the needs of the minor child and the financial circumstances of the parties. The findings and order of the trial court on matters of this nature will not be reversed unless contrary to the manifest weight of the evidence. Kelleher v. Kelleher, 67 Ill App2d 410, 214 NE2d 139 (1966).

We have previously reviewed the evidence in this case, which need not be restated here. The trial court, which conducted a long hearing, had ample justification to conclude from the evidence that there was a change in circumstances such as would justify a modification of the divorce decree reducing the weekly child support payments. Numerous factors must be considered by the judge. The demeanor of the witness, his or her apparent honesty or lack of it and candor and forthrightness, are but a few of the elements that cannot be transcribed into a record on appeal. These intangibles are of great importance in assisting the trial judge in reaching a decision when the evidence is conflicting. It is the trial court that observes and hears the witnesses and analyzes the testimony. It is not for a court of appeal to substitute its findings for those of the trial court unless such findings are clearly and palpably erroneous and against the manifest weight of the evidence. Swan v. Swan, 331 Ill App 295, 73 NE2d 153 (1947); Horn v. Horn, 5 Ill App2d 346, 125 NE2d 539 (1955); Gillespie v. Gillespie, 70 Ill App2d 38, 216 NE2d 462 (1966). Accordingly, finding ample evidence in the record to sustain the findings of the trial judge, we are not disposed to reverse those findings. In this case, the appellate court is being asked to overrule the decision of a trial court that the weekly child support payment should be $20 instead of $30 as sought by appellant. The sum of $20 per week appears to be a rather modest sum for the father to contribute toward the support of his child in this case. However, there was evidence from which the trial court could conclude that the financial circumstances of the defendant had worsened so as to justify the reduced schedule. We are not inclined in such a case to substitute our conclusion for that of the trial judge.

For the same reason we do not favor substituting our judgment for that of the trial judge on the question of visitation. There was evidence that considerable difficulty arose under the “reasonable” visitation provisions of the original decree. We feel that the court did not abuse his discretion in spelling out specific provisions for visitations in the modified decree.

Concerning past-due support payments, the original decree had specifically ordered the payment of $30 per week as child support payments. At the hearing herein being reviewed, the trial court found that the defendant had not made the payments of child support as ordered and that the sum of $780 remained unpaid thereunder. However, the trial court found that plaintiff and defendant had entered into an agreement that the child support payments be reduced from $30 per week to $20 per week and that by virtue of the principle of equitable estoppel, plaintiff cannot now collect the accumulated amount due under the original decree. With this conclusion we cannot agree. The amount of child support payments which had accumulated was a vested right and could not be changed by a subsequent order of the court. Shuff v. Fulte, 344 Ill App 157, 100 NE2d 502. Nor could it be taken away. Stewart v. Stewart, 1 Ill App2d 283, 286, 117 NE2d 579.

The defendant, in reliance upon Anderson v. Anderson, 48 Ill App2d 140, 198 NE2d 342, contends that under an alleged agreement with the defendant, plaintiff had agreed to accept $20 per week and is now es-topped to enforce the original decree. First, let us point out that as to child support payments the evidence does not support the contention that there ever was such an agreement. The defendant contends the agreement was entered into on July 3, 1967. He stated that he thereupon reduced the payments from $30 to $20 per week. There apparently had been a discussion of such a reduction in payments at that time, but there is no indication that plaintiff had agreed thereto. There was apparently further discussion on the subject on September 25, 1967, when defendant conveyed his interest in the house to plaintiff. Subsequent to this transaction, defendant again tried to persuade plaintiff to agree to a reduction in child support payments from $30 to $20 per week. Sometime in October, 1967, he presented to plaintiff a document which he himself had prepared, which purported to release him from any past deficiencies in child support payments and by which plaintiff agreed to a reduction of such payments from $30 to $20 per week in the future. Plaintiff flatly refused to execute the document. Apparently there was no further discussion between plaintiff and defendant regarding a reduction in payments, but defendant stated that after plaintiff refused to sign the document which he had prepared, he consulted a lawyer. In March, 1968, a petition to modify the decree was filed by defendant, asking that the court reduce the support payments from $30 per week to $15 per week. The petition contains no allegation of any agreement with plaintiff concerning a reduction nor did the petition to modify ask any relief from past-due amounts which had accrued under the original decree. We feel that this chain of events strongly contradicts the existence of any agreement between plaintiff and defendant to reduce child support payments or that plaintiff accepted the lesser amount paid by defendant in satisfaction of the obligation under the original decree. The factual picture presented here is far different from the severe factual situation presented in Anderson v. Anderson, supra, and cases cited therein. We accordingly hold that the court erred in holding that the plaintiff is estopped from claiming the amount of $780 child support payments which had accrued prior to the order modifying the decree.

As to the provisions in the original decree concerning the payment of certain outstanding bills and attorneys’ fees, we feel tjaat these provisions also constituted rights of the plaintiff which the decree had vested. However, the evidence indicates that there had been no discussion or contention between the parties concerning these items for almost two years. As previously stated, the defendant upon receiving a copy of the original decree, learned to his dismay that it contained certain provisions which he had not contemplated, such as conveying the marital home to plaintiff, paying certain bills and attorneys’ fees. A meeting was had between the parties and their attorneys whereat the conveyances and reconveyances of the real estate was accomplished. There is testimony concerning an accompanying discussion of outstanding bills and attorneys’ fees. There is no evidence of any subsequent dispute concerning these items until after the defendant filed his petition to modify the decree in regard to support payments. We feel that the evidence supports the trial court’s finding that the parties had entered into an agreement as to these items. She quite obviously had accepted other consideration in satisfaction thereof. We are not disposed to disturb the trial court’s finding and order in this regard.

Plaintiff objects to the consideration of the grounds of equitable estoppel for the reason that it was not pleaded. However, plaintiff failed to make timely objections in this regard at the trial. Both parties tried the case as though this issue was involved. Both parties presented evidence as to the existence or nonexistence of agreements between the parties and witnesses were examined and cross-examined in relation thereto. We hold that the plaintiff has waived any objection she may have had to defendant’s failure to plead this issue. She cannot now raise the objection in this court. Slezak v. Fleming, 392 Ill 387, 64 NE2d 734; McKinney v. Nathan, 1 Ill App2d 536, 117 NE2d 886.

As above discussed, we do not agree with the finding of the trial court that the parties hereto had agreed to the reduction of child support payments from $30 per week to $20 per week. However, we do feel that there is evidence in the record to support the finding of the trial court that the defendant’s failure to make the full payments was not willful. The power

to enforce payment of support money by contempt is limited to cases of willful and contumacious refusal to obey the order of the court. Wick v. Wick, 19 Ill2d 457, 461, 167 NE2d 207. Accordingly, we hold that the trial court was correct in finding that the defendant was not in contempt of the court.

Finally, we must consider that portion of the order which established an insurance trust to replace the direction in the original decree. There was no agreement as to such matter. The original decree provided that the defendant maintain and pay the premiums on a certain life insurance policy and name the child as irrevocable beneficiary thereon. The new provision materially changes the child’s rights in the policy and its benefits. The original decree established the insurance policy as a vested right for and in behalf of the child. It was error for the court to modify the provision of the decree concerning the insurance policy.

Accordingly, the decree of the Circuit Court will be affirmed in part and reversed in part and remanded to the Circuit Court of Peoria County for further proceedings consistent with the views expressed herein.

Affirmed in part, reversed in part, and remanded.

STOUDER, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    People of the State of Illinois ex rel. Cherry Valley Fire Protection District, a Public Corporation, Plaintiff-Appellee, v. City of Rockford, Illinois, Defendant-Appellant.
    Gen. No. 69-68.
    Second District.
    March 16, 1970.
    Rehearing denied April 16, 1970.

      John W. Nielsen, of Rockford, for appellant.
    Philip G. Reinhard,. State’s Attorney, of Rockford, and H. Emmett Folgate, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

On April 2, 1969, the Circuit Court of Winnebago County entered a judgment of ouster against defendant as prayed for in a quo warranta action filed by relator, which is herein appealed. The complaint in quo warranto was to oust defendant city from exercising governmental control over the territory annexed to the City of Rockford which is within relator’s fire protection district. The annexation ordinance was passed and approved on November 28,1967, allegedly pursuant to chapter 24, sections 7-1-8 and 7-1-10 of Ill Rev Stats 1967. Quo warranta proceedings were instituted on November 7, 1968, which was 21 days prior to the running of the Statute of Limitations. (Ill Rev Stats 1967, c 24, § 7-1-46.)

The defendant filed an answer admitting the annexation, stating that the said annexation was pursuant to statutory authority, alleging that the plaintiff had an adequate remedy at law and that quo warranta was not its exclusive remedy, a statement that the annexation was voluntary and, therefore, quo warranta would not lie, and an allegation that the plaintiff was barred from bringing this action by the provisions of chapter 85, sections 8-102 and 8-103 of Ill Rev Stats 1967. Included in these affirmative defenses was the defense of loches, and an allegation that the territory was not contiguous to the City of Rockford, and that the granting of the relief prayed for in the complaint would not result in great inconvenience and public detriment.

On hearing, relator introduced evidence showing that all owners of record, prior to the adoption of the annexation ordinance, did not sign the original petition for annexation as required by the statute. (Ill Rev Stats 1967, c 24, § 7-1-8) which states, in part, that the annexation petition should be “a written petition signed by the owners of record of all such land within such territory.” This hearing was held on January 15, 1969, proofs closed, and the case continued for oral argument on February 21, 1969. Meanwhile, on February 10, 1969, the defendant secured from the three owners omitted from the original petition, their petitions for annexation dated February 10, 1969, and by motion asked to introduce these petitions into the record. This motion was

allowed over objection on February 13, 1969, and defendant amended its pleadings pursuant to chapter 110, section 46 (1) (Ill Rev Stats 1967).

The trial court, on April 2, 1969, entered the judgment of ouster and stated therein: “(a) That the City of Rockford did not comply with Chapter 24, Section 7-1-8 in that the original petitions for the annexation dated November 15, 1967, upon which the annexation ordinance of November 28, 1967 was predicated, failed to include all owners of record of the territory annexed and that therefore said purported annexation is null and void; (b) That the territory so annexed was not contiguous to the City of Rockford within the contemplation of the law when such annexation was adopted and that therefore said annexation is null and void.” This appeal by defendant city followed.

The issues, as presented in the pleadings, including the affirmative defenses, and the evidence, are whether or not (1) compliance with the annexation statutes is judged by the facts existing as of the date of the annexation ordinance or the date of hearing on the complaint in quo warranta challenging such ordinance, (2) defects in an annexation ordinance are procedural so that the ordinance is not void or are the defects jurisdictional so that they would render the ordinance void and subject to collateral attack, (3) relator is barred from maintaining this quo warranta action by loches, (4) the territory annexed is contiguous to the city as required by statute.

We first consider the question of whether or not compliance with the annexation statute is determined by the facts existing as of the date of the annexation ordinance, or when there is a hearing on the complaint in quo warranta, as of the time the trial court is called upon to render a final judgment in the quo warranta action.

The burden is on the defendant to prove that all the circumstances required by section 7-1-8 were present at the time the annexation ordinance was passed. In re Annexation of Territory to City of Springfield, 85 Ill App2d 191, 228 NE2d 755; People ex rel. Rogers v. City of Park Ridge, 86 Ill App2d 82, 230 NE2d 289; People ex rel. Jordan County v. Forest View, 21 Ill2d 384, 172 NE2d 780.

In re Annexation of Territory to City of Springfield, supra, the court said at p 194:

“The territory sought to be annexed was not, at the time of the filing of the petition, contiguous to the annexing municipality. The intervening annexation of the territory between the municipality and the territory here involved is inoperative to satisfy the jurisdictional requirement of contiguity. Our inquiry must relate to ascertaining whether or not it was contiguous on February 9, 1966, for jurisdiction depends on the facts existing at the time of the commencement of the action.”

In People ex rel. Rogers v. City of Park Ridge, supra, it was held that the signers of a petition for annexation of territory to the city under the applicable statutory provisions did not have the statutory right to subsequently withdraw their names from the petition, since a withdrawal petition does not appear in any of the appropriate statutory methods of annexation.

In People ex rel. Jordan County v. Forest View, supra, p 389, the Supreme Court concluded that the trial court erred in holding that only persons registered under the Election Code were eligible to sign the annexation petition, and in response to the contention that quo warranta proceedings could not be used to review the determination of the county court in annexation proceedings stated at pp 389 and 390:

“Defendant’s contention that this quo warranta proceeding cannot he used to review the determination of the county court in the annexation proceeding is beside the point. Plaintiffs do not purport to review the determination of the county court. Rather, their claim is that the county court lacked jurisdiction to make any determination, because the failure of the petition to comply with the statutory requirements rendered it insufficient to confer jurisdiction upon the county court. The statutory requirements of the petition are jurisdictional, and the lack of jurisdiction on the part of the county court can be asserted in a quo warranta proceeding.”

The city, to support its view that the compliance with the annexation statute must be decided as of the date of the hearing on the quo warranta complaint, rather than the date the ordinance was passed cites numerous disconnection proceedings decisions. LaSalle Nat. Bank v. Village of Burr Ridge, 81 Ill App2d 209, 225 NE2d 33; LaSalle Nat. Bank v. Village of Willowbrook, 40 Ill App2d 359, 189 NE2d 690; In re Petition of Cox, 32 Ill App2d 142, 177 NE2d 247 and In re Disconnection of Territory from Northfield, 4 Ill App2d 131, 123 NE2d 860. The same disconnection cases were cited by this defendant in In re Incorporation of Village of Capitol Heights, 41 Ill2d 256, 242 NE2d 247. In that case the Supreme Court held that where the trial court found that a petition for incorporation of the Village of Capitol Heights met the requirements of the Municipal Code, the action of the City of Rockford in later annexing contiguous territory did not warrant the dismissal of the petition for incorporation even though the outer limits of the annexed territory to the City of Rockford lies within the minimum one mile distance from the Village and stated that “once the court determines, after a hearing, that

the statute has been satisfied, subsequent developments are irrelevant.” In that case the court stated at p 258:

“. . . the city argues that the question of compliance with the statute must be determined as of the date of the hearing upon its objection, rather than the date of the hearing on the petition for incorporation of the village. To support this view it relies upon numerous disconnection proceedings. (Citations.)
“The statutory procedure by which owners of land upon the border of a municipality may have their land disconnected from the municipality includes a judicial hearing to determine whether the statutory requirements have been met. (Ill Rev Stats 1965, chap 24, par 7-3-6.) The cited cases hold that the situation at the time of this hearing is controlling, rather than the situation that existed when the petition for disconnection was filed. But the statutory procedure for the incorporation of a village also includes a judicial hearing to determine whether the statutory requirements for incorporation have been met. (Ill Rev Stats 1965, chap 24, par 2-3-6; see People ex rel. DuPage County v. Lowe, 36 Ill2d 372.) It was at such a hearing that the court found that the petition to incorporate the Village of Capitol Heights was in accord with the statute and ordered the referendum election. At that time the territory of the proposed village admittedly was more than one mile from the municipal boundaries of Rockford. The city, however, contends that the second hearing, precipitated by its annexation subsequent to the court’s determination, must control. Nothing in the disconnection cases supports this argument.”

It is thus apparent that the statutory procedure for disconnection includes a judicial hearing to determine whether the statutory requirements have been met. However, the statutory procedure (Ill Rev Stats 1967, c 24, § 7-1-8) does not include a judicial hearing, but the city council in effect holds a hearing to ascertain whether the facts as presented in the petition show compliance with the statutory prerequisites before it is permitted to exercise its power under section 7-1-8. It is, therefore, our conclusion that under the provisions of section 7-1-8 the sufficiency of the petition for annexation is determined at the time of the passage of the ordinance of annexation, because it is jurisdictional with the passage of the ordinance that all of the property owners involved were joined in the petition for annexation.

The only other finding made by the trial court is, as stated in the trial judge’s verbal judgment of ouster dated March 27, 1969, and affirmed in his written judgment of ouster, as follows:

“And further I believe that the property is not contiguous to the city, under the rules of adjacent and contiguous property, and that the road is not parallel to the city, and that the property on both sides of the road is not municipal property or part of the city. I don’t think that the addition of the footage adjacent to the road corrects that objection. The only part that really connects with the city is the road as it contacts with the other part of the property.”

To understand the question of contiguity, it is necessary to visualize the legal description as shown by plat in the annexation ordinance as follows:

Skandia Hills Subdivision in the City of Rockford is, at that point, the southeast boundary of the City of Rockford and Lot 1 thereof lies in the extreme southeast corner of that subdivision. The only contact of the property, described in the annexation ordinance under consideration, with the city is on the south line of Lot 1 and covers only the easterly 20 feet out of the south line distance of 123.68 feet of Lot 1, and that east-west 20-foot distance is bounded on the east by a line running south 27 feet to the northern boundary of Guilford Road. The north-south line running from the west end of said 20 feet runs directly south a distance of 213 feet, which includes the 27 feet south to the northerly line of Guilford Road, the width of Guilford Road, which is 66 feet, and thence 120 feet south into the property owned by the Mauh-Nah-Tee-See Country Club. That part of Guilford Road annexed includes Guilford Road running east from the city limits and covers that road a distance on the north side 1970 feet and on the south side of Guilford Road 1276 feet due east to the easterly boundary of Roxbury Knolls Subdivision. None of the property lying north of Guilford Road in this area is annexed to the city. Roxbury Emolís Subdivision is entirely south of Guilford Road and contains 54 lots. The 1276 feet of Guilford Road plus 694 feet, which is the width of Roxbury Knolls Subdivision, together equal the 1970 feet of Guilford Road annexed on its northerly boundary. The city had previously annexed the same Roxbury Knolls Subdivision on August 22,1967, and in a prior quo warranta proceeding filed against it by the same plaintiff involved here, the circuit court of Winnebago County entered a judgment of ouster dated November 3, 1967. In the prior quo warranta proceeding a strip of land 20 feet wide, which is along the northern boundary of the country club and south of Guilford Road, was included in that annexation.

On November 28, 1967, the city reannexed this same property but added a strip of land 100 feet wide and 1276 feet long to the 20 feet, all of which belonged to the country club. This last annexation, of course, is the one involved in this suit. The intent of the legislature, as determined by the courts, is that the word “contiguous” means that the territory to be annexed must have “a substantial common boundary,” Spaulding School Dist. No. 58 v. Waukegan, 18 Ill2d 526, 529, 165 NE2d 283, or must have a “common border of reasonable length or width.” In re Westmoreland, Inc., 15 Ill App2d 51, 145 NE2d 257, or must “touch or adjoin one another in a reasonable substantial physical sense,” Western Nat. Bank of Cicero v. Village of Kildeer, 19 Ill2d 342, 352, 167 NE2d 169. In People ex rel. Nash v. City of Loves Park, 59 Ill App2d 297, 207 NE2d 490, this court stated:

“Chapter 24, par 7-1-10, Ill Rev Stats 1963, provides that a municipality may annex territory dedicated for highway purposes if such territory is contiguous to such municipality. In People ex rel. Adamowski v. Village of Streamwood, 15 Ill2d 595, the Supreme Court held that contiguous as employed in the statute ‘must mean contiguous in the sense of adjacent to and parallel to the existing municipal limits.’ Here the highway annexation described in Counts 7, 8, 9, and 14 were not adjacent to nor did they parallel the boundaries of Loves Park, but extended far beyond the same. Accordingly, we must hold that such annexation failed to meet the contiguity requirements of the statute.”

The defendant submits that these cases do not correctly define the word “contiguous” as they were all decided prior to December 7, 1967, when the legislature made effective section 7-1-1, chapter 24, which states in part: “The new boundary shall extend to the far side of any adjacent highway, . . .” and states that now it is not necessary that the roadway be adjacent and parallel as stated in the Streamwood case, but a roadway can be, by the intent of the legislature, perpendicular and not parallel to the annexing municipality. We believe that the defendant has overlooked the fact that in section 7-1-1, chapter 24, which allows acquisition of adjacent highways, the annexation must still be “contiguous” to be valid. We do not believe it was the intent of the legislature to change the definition of “contiguous” as announced by the case law. In People ex rel. Coojar Realty Corp. v. Village of Burr Ridge, 81 Ill App2d 203, 225 NE2d 39, it is stated on page 206:

“This court is of the opinion, however, that cases dealing with annexation and disconnection of privately owned tracts which are neither streets nor highways cannot decide this case. There are precedents which deal directly with street and highway annexations which we cannot disregard.”

And at page 208:

“While there may be circumstances under which a municipality may have relief from the interposi-
tian of an artificial barrier which it may never otherwise surmount, this is not authority for its affirmative effort to extend its restraint of ordinary development of an unincorporated area solely by the mechanism of a roadway which it seeks to project beyond its borders with an eye to the future.
“The annexation of relator Coojar’s property here is dependent on the validity of the prior annexation of the portion of Route 66 projecting beyond its borders. We hold that such roadway annexation as here attempted is invalid.”

Under the circumstances here present it was not error for the trial court to hold that the property sought to be annexed is not contiguous to the city under the rules applying to adjacent and contiguous property. The court took judicial notice of the earlier quo warranta proceeding and decided against the defendant where land of only 20 feet in width on the south edge of Guilford Road was to be annexed and could very well have concluded that addition of a further strip of land 100 feet to the south of that 20-foot strip could not make an otherwise invalid highway annexation proper under these circumstances. In any event, it is apparent that the purported annexation here touches the City of Rockford a distance of only 20 feet at a point 27 feet north of the north edge of Guilford Road. This is the same 20 feet which touched the City of Rockford in the earlier annexation attempt. The trial court was justified in concluding that this does not meet the requirement that there be a “substantial common boundary.”

Another contention of the city is that the petitioners are barred from maintaining this action upon the theory of loches. Both parties agree that loches will not ordinarily bar an action in quo warranta brought on behalf of the People unless a judgment of ouster therein would result in great public inconvenience and detriment. People ex rel. Coojar Realty Corp. v. Village of Burr Ridge, supra. Counsel for plaintiff has conceded in oral argument that even though the annexation proceedings contained jurisdictional defects, nevertheless loches may be asserted as an affirmative defense if a judgment of ouster would result in great public inconvenience and detriment. The trial court in its oral and written judgment of ouster did not mention or decide the validity of the affirmative defense of loches. Although conflicting evidence was presented as to whether or not loches should apply, we will not go into that matter for reasons hereinafter stated. The plaintiff contends that the court did consider the question of loches, but the defendant states that the court did not consider the affirmative defense of loches because it had decided the defects in the passage of the ordinance of annexation were jurisdictional and “the judge, body or officer annexing the territory did not at the time of such annexation have jurisdiction of the subject matter.” Chapter 24, § 7-1-46.

In The People ex rel. Jordan County v. Forest View, supra, the court remanded the cause for further proceedings because the trial court did not consider the issues of loches and acquiescence. In deciding that case, and in commenting upon People ex rel. Lindsey v. Board of Education, 3 Ill2d 159, 120 NE2d 887, wherein the basis for the decision was that the granting of a judgment of ouster would be manifestly against the public interest and the doctrine of loches was invoked for that reason, the court stated at page 391:

“If there are any factors in the present case comparable to those which gave rise to the application of the doctrine of loches in the Lindsey case, they are not properly before us on this appeal. Defendant’s answer presented several affirmative defenses, among them that plaintiffs’ claim was barred by loches and acquiescence, and that the granting of the relief prayed for would be against the public interest and would result in great inconvenience and public detriment. Plaintiffs’ reply, while admitting some of defendant’s factual allegations with respect to these affirmative defenses, denied others, and presented counter allegations, and, with respect to others, alleged a lack of sufficient knowledge to either affirm or deny. The trial court heard no evidence but decided the case solely on the basis of the pleadings and the documents filed in connection therewith. The trial court did not rule specifically upon any of the affirmative defenses nor did it make any finding that the granting of the relief prayed for would result in great inconvenience and public detriment. The only basis for the decision appearing in the judgment order is the finding that only persons duly registered under the Election Code were eligible to sign the annexation petition, and that the annexation proceedings were valid. We do not understand defendant to contend that a general finding in the j'udgment order that ‘the issues herein are with the Defendant and against the Plaintiffs,’ is equivalent to a specific decision in favor of defendant with respect to the question of loches and the public interest. Since the pleadings presented disputed questions of fact with respect to these matters, no such decision could have been made by the court without the taking of evidence.”

Although the trial court in our case did hear conflicting evidence as to the affirmative defense of loches, it based its decision on other grounds and did not rule specifically on the affirmative defense of loches or make any finding that the granting of the relief prayed for would not result in great inconvenience and public detriment. There was no specific decision here in favor of the defendant with respect to the question of loches and public interest. We, therefore, must reach the same conclusion reached by the Supreme Court in . the Forest View case as the defendant is entitled to a decision on the defense of loches. For that reason the judgment will have to be reversed and remanded to the trial court for further proceedings.

Finally, it is argued by the plaintiff that the judgment in the prior quo warranta proceeding is res judicata as to the issues in this case. A search of the record fails to reveal that the question of res judicata was properly raised or decided by the trial court. Therefore, this court will not consider the issue of whether or not the prior quo warranta proceeding was res judicata as to the issues in this proceeding.

The judgment is reversed and the cause remanded to the Circuit Court of Winnebago County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


text:
    Robert L. Silberstein, Plaintiff-Appellee, v. Peoria Town & Country Bowl, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 69-27.
    Third District.
    March 17, 1970.

      Winstein & Kavensky, of Rock Island, and William H. Christison, of Peoria, for appellant.
    Joseph R. Napoli, of Peoria, for appellee.
   RYAN, J.

Plaintiff filed suit in the Circuit Court of Peoria County, alleging that the defendant bowling alley corporation breached an agreement of employment whereby plaintiff was to be employed as promotional manager of the bowling alley for a period of forty-eight months at a salary of $312.50 per month for a gross salary of $15,000. Defendant paid the monthly stipend for a period of twenty-four months, and then stopped. Plaintiff, by his suit, sought to obtain a judgment for $7,500 as the unpaid balance under the alleged agreement. Defendant, in its answer, admitted only the fact of its incorporation and the payment of $7,500, and denied all other material allegations of the complaint. Defendant further filed certain affirmative defenses to the effect that the alleged agreement was ultra vires, was lacking in consideration, and was based on an illegal consideration. A jury trial was demanded. Defendant subsequently amended its answer by adding additional affirmative defenses, namely: That the alleged agreement was void for uncertainty and vagueness and lack of mutuality in that the plaintiff was not obligated to do anything at any time or place. That the subject matter of the alleged agreement was illegal and therefore, void in that the plaintiff was the third-party beneficiary of an agreement entered into between the defendant and plaintiff’s father, whereby plaintiff’s father agreed to restrain all competition from new bowling alleys by using his influence with the City Council of the City of Peoria and the Board of Supervisors of the County of Peoria to prevent licensing of or zoning for potential competitors for a period of five years. The consideration for this alleged agreement was to be the payment of $50,000 by the defendant, $15,000 of which sum was to be paid to plaintiff in installments of $312.50 per month for a period of forty-eight months. Said payments were to be labeled for services as “promotional manager” but were, in fact, not wanted, needed or used by the defendant and were never offered or performed by the plaintiff. Defendant further set forth that the plaintiff knew of this earlier agreement at the time of the alleged employment agreement. Defendant’s answer and these latter affirmative defenses were verified.

Plaintiff moved for a Summary Judgment on the grounds that no dispute as to the facts existed; that the defenses set forth by the defendant were insufficient as a matter of law and that defendant was estopped to raise the earlier contract which was undisclosed to the plaintiff. In plaintiff’s supporting affidavit he stated that he did promote defendant’s business “in attempting to see to it that (his) friends and associates commenced the use of the bowling alley.” Further, that he had collected a bad check for the bowling alley; that he had offered further service; that he was ready, willing and able to perform further services but that none were requested.

In a counteraffidavit, defendant corporation’s president set forth that the monthly payments were stopped when competing bowling alleys opened, whereupon they regarded the original agreement as breached. Further, that plaintiff “was fully aware of all of the aforesaid facts and the original agreement between (plaintiff’s father) and (defendant)The trial court ordered the submission of the depositions of the plaintiff and an agent of defendant to be considered by the trial court along with the pleadings in deciding plaintiff’s motion for a Summary Judgment. This being done, the trial court granted plaintiff’s motion for a Summary Judgment and entered judgment in favor of the plaintiff and against the defendfendant for $7,500 and costs.

Section 57 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 57) provides that a Summary Judgment may be rendered when “. . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment or decree as a matter of law.” If, however, the pleadings present a genuine issue as to any material fact, Summary Judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to Summary Judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300. The affidavits filed in support of a motion for Summary Judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272.

The law in this regard seems well settled and was fully and succinctly covered in the case of Ruby v. Wayman, 99 Ill App2d 146, 240 NE2d 699. Citing the earlier cases of Solone v. Reck, 32 Ill App2d 308, 177 NE2d 879, and Tezak v. Cooper, 24 Ill App2d 356, 164 NE2d 493. The Appellate Court in the Ruby case correctly pointed out that the remedy of Summary Judgment is to be awarded with caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Even if there is no dispute in the evidence, if fair-minded persons would draw different eonelusions from the evidence, then it becomes the province of the jury to draw that conclusion which to them seems most reasonable.

On the record here presented, and under the authorities herein cited, we believe that the trial court erred in granting plaintiff’s motion for Summary Judgment. As of the time of the granting of the motion for Summary Judgment, no answers had been filed by the plaintiff to defendant’s verified affirmative defenses. Although the plaintiff had moved to strike the defendant’s affirmative defenses, the trial court did not pass on this motion. Thus, for the purpose of ruling on plaintiff’s motion for Summary Judgment, defendant’s affirmative defenses are part of the pleadings that must be considered under section 57(3) of the Civil Practice Act in determining whether a question of fact existed. Defendant’s sworn affirmative defenses and affidavit in opposition to plaintiff’s motion for Summary Judgment raised several factual issues.

Plaintiff would like for this court to consider his alleged contract with the defendant separate from and independent of any transaction between his father and the defendant. However, the verified affirmative defenses and the affidavit in opposition to the motion for Summary Judgment have alleged factual situations which so intertwine the two transactions as to make them inseparable. In fact, under these pleadings, the very question of whether the contract between the plaintiff’s father and the defendant is severable from the plaintiff’s alleged contract with the defendant has itself become a question of fact. Was the alleged illegal consideration for the plaintiff’s father’s contract the actual consideration for the plaintiff’s contract? Did the plaintiff have knowledge of the father’s contract and its attendant circumstances whereby it could be inferred that he was a participant therein?

There is also a factual question as to whether the plaintiff and defendant ever had a contract. Plaintiff’s complaint had a letter from an agent of defendant attached as an exhibit which purported to be a “. . . guarantee to you that we will hire you as a promotional manager . . . on a non-cancelable contract basis for forty-eight (48) months at a salary of $312.50 per month . . . .” During oral argument before this court, the attorney for the plaintiff responded to a question from the court as to whether he considered this letter to be a contract that he considered the letter to be an offer only and that the subsequent performance by the plaintiff was the acceptance of the offer. There is a factual dispute under the state of the pleadings and the affidavits as to whether the plaintiff ever performed any service for the defendant pursuant to the offer in the letter. Thus, if defendant’s letter is an offer only, there is a factual issue as to whether there was performance by plaintiff which would constitute an acceptance of the offer and thus bring into existence a binding contract.

Accordingly, the Summary Judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

STOUDER, P. J. and TRAPP, J., concur.


author: MORAN, P. J.

text:
    Robert H. Baker, Administrator of the Estate of Dixie Baker, Deceased, Robert H. Baker, Administrator of the Estate of Robin Baker, Deceased, Deborah Baker, a Minor, by Robert H. Baker, Her Father and Next Friend, and Robert H. Baker, Plaintiffs-Appellees, v. Norfolk & Western Railway Company, a Corporation, Robert L. Wetz, Sr., and Burton Jones, Defendants-Appellants.
    Gen. No. 68-130.
    Fifth District.
    March 17, 1970.

      Pope & Driemeyer, of East St. Louis, for appellant.
    Chapman, Strawn & Kinder, of Granite City, for appellees.
   MORAN, P. J.

This action was brought to recover damages occasioned by the alleged negligence and/or willful and wanton misconduct of defendant-appellant, Norfolk and Western Railway Company, a corporation, defendant, Robert L. Wetz, Sr., the engineer of the train in question, and defendant, Burton Jones, the fireman of the train in question, in the operation of a passenger train at a grade crossing. Defendant’s, Burton Jones, motion for a directed verdict was granted at the conclusion of plaintiffs’ case. The jury rendered a verdict in favor of defendant, Robert L. Wetz, Sr., and against all plaintiffs on all counts of plaintiffs’ complaint directed against that defendant. The jury rendered verdicts for each plaintiff only on the counts of the complaint alleging negligence against defendant-appellant, upon which the court entered judgments and from which this appeal is taken.

Defendant-appellant’s motion for judgment notwithstanding the verdict, directed to plaintiff, Deborah Baker and Robert H. Baker, her father and next friend, was denied, but the court ordered a new trial in the case of Deborah Baker, by her father and next friend, Robert H. Baker, against defendant-appellant on the issue of damages only. Deborah Baker has filed a petition for leave to appeal from that order.

Plaintiffs’ complaint alleged that defendant-appellant was negligent, among other things, in that “it failed to provide flares, lights, bells or gates at said crossing.” The jury was subsequently instructed in the language of that allegation.

This accident occurred a short distance north of Granite City, Illinois, on March 8, 1966, at about 7:05 p. m., at the intersection of defendant’s main northbound track and Maryville Road when a car being driven by Dixie Baker in a northerly direction on Maryville Road over said crossing was struck by a northeastbound passenger train owned and operated by the defendant, Norfolk and Western Railway Company. The track in question runs in a northeast south-southwest direction and Mary-ville Road runs in a generally north-south direction. The grade crossing in question consists of two tracks, one being the defendant’s northbound main track and one being the defendant’s southbound main track. The protection afforded at the grade crossing in question was the standard crossbuck signs, saying, “Railroad Crossing.” Some 89 feet west of the grade crossing in question is another grade crossing consisting of two tracks used by the New York Central Railroad Company and the Gulf, Mobile and Ohio Railway Company which grade crossing is also protected by the standard crossbuck signs, saying, “Railroad Crossing.”

Plaintiffs and plaintiffs’ decedents lived approximately six-tenths of a mile south of the grade crossing near Granite City and had lived at this location for five years, during which time Dixie Baker, deceased, the driver of the automobile in question, drove over the crossing in question about once a week. At the time of the accident it was dark and clear.

When the deceased, Dixie Baker, left home, she was driving a 1966 Chevrolet. The plaintiff, Deborah Baker, fourteen years of age at the time of the accident, was seated in the right-hand front seat. The deceased, Robin Baker, nine years of age at the time of the accident, was seated in the rear seat of the car on the left-hand side behind her mother, Dixie Baker.

No one knows what route Dixie Baker, deceased, followed to get to the grade crossing in question since Dixie Baker and Robin Baker were killed as the result of the accident, and Deborah Baker suffered retrograde amnesia. However, Dixie Baker would normally go north on Vincent Street a few hundred feet, then turn left on Binney Street to Route 203 and then turn right onto Route 203 and go in a northerly direction on Route 203 to Maryville Road and then turn left onto Maryville Road, going in a northerly direction up to the grade crossing in question.

Route 203 runs parallel with and East of the northbound main track of defendant. The distance between the most westerly edge of Route 203 and the most easterly track of the northbound main track of defendant, the track that the train in question was on at the time of the accident and the first track that Dixie Baker, deceased, would have come to, measured on Maryville Road, was 126 feet.

The accident occurred a few minutes after Dixie Baker, deceased, Robin Baker, deceased, and Deborah Baker left their home. The only witness that saw plaintiffs’ automobile after it left home was the engineer of the train, Robert L. Wetz, Sr., who saw the automobile just in the last split second and just as the automobile was going

across the track in front of the train. The point of impact to the automobile was to the left rear fender, six feet from the rear end of the car.

Plaintiffs’ decedents, Dixie Baker and Robin Baker, died as a result of the accident. Dixie Baker was 32 years of age and Robin Baker was 9 years of age at the time of their deaths.

Appellant first contends that plaintiffs’ complaint does not allege facts from which it could be concluded that the Maryville Road Crossing was extrahazardous, and therefore does not state a cause of action which would support a judgment in plaintiffs’ favor.

Paragraphs 3 through 7 of plaintiffs’ complaint state:

“That east of the tracks in question on the south side of Maryville Road, there was located within close proximity of said tracks, poles and other obstructions which interfere with the view to the south of one crossing said track as he proceeds westerly upon said Maryville Road, all of which the Defendant, its agents or employees, knew, or, by the exercise of reasonable care, should have known.
“That on said date, and for a long time prior thereto, there were no signals, flashers, lights, bells or watchmen kept at such crossing, all of which the Defendant, its agents or employees, knew, or by the reason of due care, should have known.
“That on said date, and for a long time prior thereto, said Maryville Road crossed the aforesaid railroad tracks at an acute angle, which the Defendant, its agents or employees, knew, or, by the reason of reasonable care, should have known.
“That on said date and prior thereto, said tracks were situated at an elevation considerably higher than the elevation of Maryville Road, thereby requiring automobiles crossing said tracks to approach same at a steep incline, which the defendant, its agents or employees, knew, or by the exercise of reasonable care, should have known.
“That on said date and prior thereto, said tracks were situated in the vicinity of a residential area of said county; and that said tracks were subject to vehicular traffic by many persons in and about the vicinity of said area, and others as well, in going to and from said populated area adjacent thereto, all of which the defendant, its agents and employees, knew, or by the exercise of ordinary care, should have known; and which, coupled with the obstruction, elevation of the crossing, acute angle of the crossing, and lack of signal or warning devices, as aforealleged, made said crossing an extrahazardous one.”

Clearly, plaintiffs’ allegations contain facts from which it could be concluded that the Maryville crossing was extrahazardous.

Appellant also contends that the jury must determine that the crossing is extrahazardous before it can find that the railroad was negligent in failing to provide additional protection. Appellant did not submit a special interrogatory or instructions on this issue to the jury.

Whether a particular crossing is extrahazardous is a jury question. Devore v. Toledo, P. & W. Railroad, 30 Ill App2d 409, 412, 174 NE2d 883 (1961); Gibson v. Nenne, 2 Ill App2d 158, 118 NE2d 788; Maltby v. Chicago Great W. Ry. Co., 347 Ill App 441, 106 NE2d 879. However, appellant has cited no cases and we find none, which require a specific finding by the jury that a crossing is extrahazardous before the railroad can be found negligent in failing to provide protection. The jury’s determination that a crossing is extrahazardous is implicit in its finding that the defendant did not act in a reasonably careful manner in failing to provide flares, lights, bells or gates considering the condition existing at that crossing as shown by the evidence.

Appellant contends that this crossing was not extra-hazardous as a matter of law and therefore no common-law duty arose to provide additional protection. The only basis for appellant to be held liable, as stated above, is if it negligently failed to provide flares, lights, bells or gates at the crossing, which would require some evidence for the jury to conclude that the crossing was extrahazardous.

No statute or regulation of the Illinois Commerce Commission required additional protection at this crossing. However, independent of statute or regulation, there is a common-law duty on railroads to protect crossings with adequate safety devices other than the usual cross-buck sign where special or unusual conditions cause such crossings to be “extrahazardous” and warrant additional protection. Devore v. Toledo, P. & W. Railroad, supra; Petricek v. Elgin, J. & E. Ry. Co., 21 Ill App2d 60, 157 NE2d 421; Gibson v. Nenne, supra; Maltby v. Chicago Great W. Ry. Co., 347 Ill App 441, 106 NE2d 879; Applegate v. Chicago & N. W. Ry. Co., 334 Ill App 141, 78 NE2d 793.

Factors which have been considered in determining whether a particular crossing is extrahazardous include physical obstructions to vision, whether movable or immovable, volume and speed of vehicular traffic, volume and speed of train traffic, the railroad facilities present at the crossing — that is, the track arrangement, the intersecting driveways and roadways, and the character of the highway and width of crossing. Hughes v. Wabash R. Co., 342 Ill App 159, 95 NE2d 735. Other physical characteristics such as the angle of the intersecting roadway, the track elevation in relation to that roadway, the character of the surrounding neighborhood and sight distance are relevant to whether a crossing is extrahazardous.

Appellant argues that there are no special conditions creating special dangers which would impose a duty to provide additional protection, noting especially the lack of a substantial obstruction and longsight distance at the crossing, arguing that the crossing was not extra-hazardous as a matter of law. Appellate cites Gibson v. Nenne, supra, wherein it was stated at page 162:

"One of the questions here presented is whether there was sufficient evidence to warrant a jury in passing upon the question of negligence arising from a common-law duty. This cause does not fall in the class of cases where there is an unobstructed view nor where there has been a failure to comply with the statutory warning requirements of a failure of mechanical signals or to lower gates. Under the circumstances, if there was no extrahazardous condition existing at the crossing there would be no duty upon the railroad to operate safety devices or provide a watchman.”

That court continued to state in the same paragraph:

"If there was any evidence tending to show that an extrahazardous condition existed at the crossing, it was for the jury to determine whether the railroad should have provided additional warning to travelers upon the highway. Hughes v. Wabash R. Co., 342 Ill App 159; Maltby v. Chicago Great W. Ry. Co., 347 Ill App 441.”

The tracks are elevated from the level of Route 203 so that the incline on Maryville Road, 50 feet away from the track to just short of the track, is approximately eight percent. The average vehicular traffic on Mary-ville Road at the crossing was 2,650 vehicles per day five months prior to the accident and the estimated speed was 10-15 miles per hour. There were thirteen scheduled daily trains on the Norfolk and Western tracks, as well as yard engines, during March, 1966. On the other two tracks, west of the Norfolk and Western tracks, there were 57 daily trains on the date of the accident. The speed limit for freight trains through this crossing is 60 miles per hour and for passenger trains is 78 miles per hour. The passenger train in question was traveling between 60 and 78 miles per hour at the time of the accident.

Deborah Baker, the surviving passenger of the automobile, testified that there is a stop sign, utility pole and telephone pole on the west side of Maryville Road between the road and northbound tracks which are obstructions when looking south from Maryville Road down the northbound track. She testified that at night in looking in the same direction from which they had come that “(t)here is an awful lot of lights. The lights from the oncoming cars, you can even see those and down further there are a lot of lights down there and a lot of buildings. When it is pretty dark out there are a lot of poles on the right side making it black down there and you can’t see anything.” Plaintiffs’ exhibits show that a line of steel power poles, 24 feet from the east side of defendant’s tracks, could obstruct vision in the southerly direction at a certain point along Maryville Road. Defendant offered testimony and other evidence that the view is unobstructed for 9,000 feet in the southerly direction and that the track is straight and level through that distance. However, an engineer pilot in civil engineering called by defendant testified on cross-examination that all of the track is not visible from all positions along Maryville Road between Route 203 and the tracks and that a northbound train would necessarily have to be in a position behind the pole at some point from any single vantage point on Maryville Road.

Harry Bane, called as a witness on behalf of the plaintiffs, testified that he was employed by the Norfolk and Western Railway Company as a public projects engineer and that his job dealt with the installation of protective devices at crossings. The hazard factors that are to be taken into consideration in installing protective devices were physical conditions at the crossing, such as angles of the highway and track, obstructions to vision whether natural or man-made, sight distance, volume and speed of train traffic and volume and speed of vehicular traffic at the crossing.

Harry Wilcox, a research engineer for the Illinois Division of Highways testified that he was familiar with the crossing and that the visibility back toward Granite City was rather restricted due to the extreme angle of the crossing. However, that one could see all the way back if he turned considerably around to do it.

Dwight Hampson, a professional photographer testified on behalf of the defendant that he had taken some pictures of the train in question as it proceeded from Granite City toward the Maryville Road crossing; that he was notified by walkie-talkie when the train crossed Pontoon Road. He could see the headlight of the train much prior to the time it crossed Pontoon Road, but “we were concerned whether that was the right train or some train that was down there stopped.” He also testified that he could see the light continuously from the time it passed Pontoon Road and some time before, “but how far his headlight was off, you can’t tell.”

From the foregoing, we believe there was sufficient evidence to furnish an evidentiary basis for the jury to find that the defendant was negligent in failing to provide additional protection at this crossing.

Defendant also contends that there is no evidence of due care on the part of any of the plaintiffs just prior to the accident, that Dixie Baker was contributorily negligent as a matter of law and that her conduct was the sole cause of the collision.

Initially it can be said that defendant’s negligence has already been established and assuming the driver was negligent, her negligence is not imputable to the other plaintiffs and would not bar their recovery if they were otherwise in the exercise of due care. Lauer v. Elgin, J. & E. Ry., 305 Ill App 200, 27 NE2d 315.

Plaintiffs must prove that each of the injured persons was in the exercise of due care for her own safety at the time of the accident. However, where direct testimony by an eyewitness is not available, due care may be inferred from testimony of careful habits of the deceased and circumstances surrounding the accident. Hughes v. Wabash R. Co., 342 Ill App 159, 95 NE2d 735; Lobravico v. Checker Taxi Co., Inc., 84 Ill App2d 20, 228 NE2d 196. This inference may also be made to show due care on the part of an accident victim suffering retrograde amnesia where there are no eyewitnesses. Campbell v. Ragel, 7 Ill App2d 301, 129 NE2d 451.

There were no eyewitnesses to this collision. Dixie Baker, the driver and Robin Baker, 9, a passenger, were killed and Deborah Baker, 14, survived, but suffered retrograde amnesia.

Plaintiffs offered testimony of Dixie Baker’s good driving habits. She had driven regularly since 1950 and had been over the Maryville Road crossing at least once a week for the past five years. With reference to this crossing Debbie Baker testified, “She would come to this crossing, she was always careful. She hated the crossing. She would come to the track and she would either stop or slow down and she would look both ways.”

With respect to the circumstances surrounding the collision, the most favorable to the plaintiffs, there was evidence that it was dark, that the driver’s view to the left over the crossing could be obstructed, that a driver must turn his head extremely to the left to look for trains and the view was restricted because of the angle, that Maryville Road to the tracks was on an incline of 8 percent, that there could have been confusing lights in the background, that there were four tracks to watch for trains, that there were poor shoulders at the crossing and that the impact to the car was on the left side, six feet from the rear bumper.

Defendant relies primarily on the facts that the tracks are straight and level for 9,000 feet in the direction the train was coming and that Dixie Baker was familiar with the crossing, and states that she would have had a clear and unobstructed view for one mile down the track as she drove from Route 203 to the tracks. Defendant cites many cases in which it has been held that a driver in an automobile-train collision is contributorily negligent as a matter of law where his view was unobstructed. The rationale of these cases is that a person is bound to know that a railroad crossing is a dangerous place, that he must approach the crossing with care commensurate with the known danger and that “(t)he law considers obnoxious a contention to the effect that a person looked but did not see a train when the view was not obstructed, and where if he had properly exercised his sight, he must have seen it.” Tucker v. New York, C. & St. L. R. Co., 12 Ill2d 545, 140 NE2d 370; Carrell v. New York Cent. R. Co., 384 Ill 599, 52 NE2d 201; Overman v. Illinois Cent. R. Co., 34 Ill App2d 30, 180 NE2d 213; Monken v. Baltimore & O. R. Co., 342 Ill App 1, 95 NE2d 130.

In each of the cases cited by defendant, there was direct testimony of the conduct of the driver of the automobile so that no presumption of due care was permissible and the view of the track was unobstructed. There is a question of fact in this case as to whether or not the view of an approaching train was obstructed by the line of poles 24 feet from the tracks in conjunction with the angle of view a driver has in approaching these tracks. It must be remembered that Dixie Baker was not standing outside her car looking down the tracks, but was presumably driving her car, and it is from this vantage point that the view of the grade crossing must be considered. A driver may not be at fault for failing to look and listen or see an approaching train where he is misled without his fault or the view is obstructed by objects or by darkness. Chicago & N. W. Ry. Co. v. Hansen, 166 Ill 623, 46 NE 1071; Guess v. New York Cent. R. Co., 319 III App 522, 49 NE2d 652. It is also significant to note that while a driver must look in both directions, he is not required to keep a continuous lookout in the direction from which the train is coming. Chicago & A. R. Co. v. Sanders, 55 Ill App 87, affd 154 Ill 531, 39 NE 481.

As Dixie Baker approached this crossing it was dark. While driving north on Route 203 she would have no view of the train approaching from the same direction, at least until she turned onto Maryville Road, 105 feet from the first track. There is no evidence of the manner in which she approached the track except that she usually stopped or slowed down and looked in both directions. Defendant argues that the only logical conclusion to be reached is that Dixie Baker did not look, or looked and did not see the train, or looked only after she could not stop in time. However, it is just as reasonable to infer that she looked and saw the train and reasonably thought it was safe to proceed. In Hughes v. Wabash R. Co., 342 Ill App 159, 95 NE2d 735, the court stated at 167: “He was not under an absolute duty to stop, but he might have driven across the track with care if it reasonably appeared he might have done so.” Extraordinary care is not required, but only such care as a person of ordinary prudence and intelligence would usually exercise under the same or similar circumstances. Chicago & A. R. v. Louderback, 125 Ill App 323.

Justice Cardozo stated in Pokora v. Wabash Ry. Co., 292 US 98, at 105, 78 L Ed 1149, 54 S Ct 580:

“Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. ... In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of the jury.”

It has always been recognized that in a case where there are no eyewitnesses, the showing of habits of due care on the part of the deceased, makes at least a prima facie case as to whether or not he was in the exercise of due care. Under the circumstances of this case, we cannot say that Dixie Baker was guilty of contributory negligence as a matter of law. The question of due care in this situation was a question for the jury. Hughes v. Wabash R. Co., supra, Karlock v. New York Cent. R. Co., 333 Ill App 655, 78 NE2d 122.

With respect to Dixie Baker’s daughters, who were passengers, there was no evidence of careful habits, but there were circumstances from which it could be reasonably inferred that the girls were in the exercise of due care. Debbie, 14 years of age, was in the front and Robin, 9 years of age, was in the rear when they left home shortly before the accident. They were riding with their mother, whom they knew to be a careful driver, and with whom they had often ridden, and neither of them was of driving age.

Our Supreme Court has recently held that the affirmative duty of a passenger to warn is that “unless the passenger sees an obvious danger which the driver might not see there would be no duty to warn him.” Smith v. Bishop, 32 Ill2d 380, 205 NE2d 461; Hatcher v. New York Cent. R. Co., 17 Ill2d 587, 162 NE2d 362.

There is no evidence of what the passengers actually saw or did, but the law requires only the highest proof of which the case is susceptible. O’Brien v. Chicago & N. W. Ry. Co., 329 Ill App 382, 68 NE2d 638; Hughes v. Wabash R. Co., supra.

Under these circumstances, with no evidence indicating an absence of due care, the jury could reasonably infer that the girls, as minor passengers, were in the exercise of due care for their own safety. Zank v. Chicago, R. I. & P. R. Co., 17 Ill2d 473, 161 NE2d 848; Hatcher v. New York Cent. R. Co., supra; Anthony v. New York Cent. R. Co., 61 Ill App2d 466, 209 NE2d 686.

Since the plaintiffs are not guilty of contributory negligence as a matter of law, the trial court did not err in refusing to grant defendant’s motion for judgment notwithstanding the verdict against each plaintiff.

Defendant urges as error that the trial court abused its discretion in denying its motion for change of venue to another county for trial. The denial of defendant’s motion was proper. Plaintiffs’ complaint was filed in August, 1966, and the grounds for defendant’s motion existed at that time. Nevertheless, defendant did not file its motion until March 15, 1968, three days before trial. An application for change of venue must be made at the earliest practicable moment, and an application made after substantive issues have been ruled upon is not timely. Booth v. Metropolitan Sanitary Dist. of Greater Chicago, 79 Ill App2d 310, 224 NE2d 591; Hildebrand v. Hildebrand, 41 Ill2d 87, 242 NE2d 145.

Defendant also urges that evidence of traffic count on Maryville Road over the crossing in May and November of 1964 and May, 1965, and of train movements on the Gulf, Mobile & Ohio and New York Central tracks parallel to defendant’s tracks on the date of the accident was irrelevant and immaterial to any issue. This evidence was relevant to the issue of defendant’s negligence in that it tended to prove the extrahazardous condition of this crossing.

Defendant further urges that Instruction No. 19 was improper in that it did not require the jury to first find that the crossing was, in fact, extrahazardous. We cannot consider this contention because defendant failed to make this specific objection in the trial court.

We have carefully considered the petition of Deborah Baker, a minor, by Robert Baker, her father and next friend, for leave to appeal from the order of the trial court allowing a new trial confined to damages in her case and we are unable to say that this action of the trial court was an abuse of discretion. Therefore, the petition of Deborah Baker, a minor, by Robert Baker, her father and next friend for leave to appeal from the order of the trial court allowing a new trial confined to damages in Deborah Baker’s case is denied.

For the foregoing reasons the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.