text:
    Virgil C. Gillan, Appellee, v. Chicago North Shore and Milwaukee Railway Company, Appellant.
    Gen. No. 46,168.

      Opinion filed March 8, 1954.
    Released for publication March 24, 1954.
    James J. Magner, of Chicago, for appellant; Francis X. Busch, E. N. Muldoon, and E. Marvin Buehler, all of Chicago, of counsel.
    Philip H. Corboy, of Chicago, for appellee.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment for $50,000 entered in plaintiff’s action for personal injuries resulting from a collision between the automobile in which he was riding as a guest and an electric train of defendant at the intersection of Washington avenue and defendant’s tracks in Highwood, Illinois a few minutes before 6 a. m., February 7, 1952. The sole contention on appeal is that the trial court should have directed a verdict for defendant or sustained its motion for judgment notwithstanding the verdict because there was no evidence that plaintiff was in the exercise of due care for his own safety and the evidence affirmatively showed that he was guilty of contributory negligence.

Plaintiff, a soldier stationed at Fort Sheridan, and three other soldiers — Bussell, Benavides and Allen— from the same fort, were returning after spending the night at the Bella Vista, a bar and restaurant in High-wood, and the Skokie Gardens, a tavern at the intersection of United States Highway 41 and the Cook-Lake County Road, about 5 or 6 miles to the south and west of the Bella Vista. They had gone to the Gardens from the Bella Vista in a Chevrolet automobile owned and driven by Russell. In the party was a girl friend of Allen. They left the Gardens about 4:30 or 4:45 a. m. Benavides was driving at the request of Russell, who sat on the front seat between the driver and plaintiff. Allen and the girl were in the back seat. There is no evidence that any in the party were intoxicated. Russell and plaintiff fell asleep almost immediately and remained asleep until the collision in which plaintiff was injured. After taking the girl to her home in High-wood, Benavides drove to Washington avenue and turned east toward Fort Sheridan, beyond the railroad tracks.

Washington avenue runs east and west and crosses the tracks of the Chicago & North Western Railway and the defendant. These tracks run slightly diagonally, northwest and southeast. From west to east there are three North Western tracks, an open space of about 69 feet, and three tracks of defendant. The crossing is protected by three sets of manually-operated gates which extend across the street when down — one west of the North Western tracks, one immediately east of these tracks, and the third east of defendant’s tracks. The two westerly tracks of defendant are main-line tracks for south and northbound trains. The most easterly track is a side track. Between the main tracks and the side track and immediately north of the north curb of Washington avenue is the watchman’s tower. From the North Western tracks east there is nothing to obstruct the view of defendant’s tracks north and south for a considerable distance.

Benavides and Allen were witnesses for plaintiff. The former testified that when the automobile reached Creen Bay road, the first north and south street west of the tracks, the three sets of gates were down, a bell was ringing and the red lights on the gates were flashing; he stopped; a train which he believed was on the North Western tracks passed to the south, the gates Went up, he started to cross the tracks at about 10 to 15 miles an hour, when about 65 feet from defendant’s northbound track he glanced to his right but didn’t see the northbound electric train which ran into him. Allen corroborates the testimony of Benavides. He said that when they were over the defendant’s tracks he glanced to the right and saw the lights of a train coming “on the same track we were on”; that the east gates started to lower. Neither Benavides nor Allen heard a whistle or bell after starting across the tracks. Defendant’s version, as told by its employees, is that the gates were down; a single car passed to the south, meeting the northbound train about two to four hundred feet south of the crossing; the northbound train had an electric headlight 500-watt bulb turned on bright; it was going 30 to 35 miles an hour; when about 800 feet from the crossing the motorman of the train saw that the gates were down and the red lights were on; that an automobile was parked about 10 feet east of the southbound track; that when he passed the southbound car he saw that the automobile had started across the tracks, he applied his brakes and gave a warning whistle; the automobile suddenly stopped, with its right-rear wheel on the east rail of the track; he put his brakes into emergency; the train struck the automobile.

Defendant’s motions for a directed verdict and for judgment notwithstanding the verdict present a question of law as to whether, when all the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to plaintiff, there is a total failure or lack of evidence to prove any necessary element of plaintiff’s case. Heideman v. Kelsey, 414 Ill. 453, 457. Where, as here, there is no wilful or wanton injury, the plaintiff cannot recover “unless it appears he was in the exercise of ordinary care for his safety, and in such case it is the duty of the court to direct a verdict for the defendant if there is no evidence tending to show affirmatively that the plaintiff was exercising due care or to raise a reasonable inference of such care.” Illinois Central R. Co. v. Oswald, 338 Ill. 270.

The law fixes the same standard of duty for a passenger as for a driver of an automobile — the exercise of reasonable care for his own safety, but the conduct which reasonable care requires of a passenger will not ordinarily, if in any case, be the same as that required of a driver because their circumstances are different. Clarice v. Connecticut Co., 83 Conn. 219. In Dee v. City of Peru, 343 Ill. 36, the passenger’s duty was defined as follows:

“It is the duty of a passenger in a vehicle, where he has an opportunity to learn of danger and to avoid it, to warn the driver of such vehicle of approaching danger, and he has no right, because someone else is driving, to omit reasonable and prudent efforts on his own part to avoid danger.”

This rule has never been construed to require action by a passenger when the driver exercising due care is aware of approaching vehicles or other danger. Hagen v. Bailus, 283 Ill. App. 249, in which this court quoted with approval from Hermann v. Rhode Island Co., 36 R. I. 447, as follows:

“It cannot be said as a matter of law that such guest or passenger is guilty of negligence because he has done nothing. In many such cases the highest degree of caution may consist of inaction. In situations of great and sudden peril meddlesome interference with those having control, either by physical act or by disturbing suggestions and needless warnings may be exceedingly disastrous in its result.”

Except in rare instances, as when danger hidden from the driver is or should be obvious to a passenger, the duty of the latter to act begins only when the driver ceases to exercise due care for the safety of the occupants of the automobile. And when there is an equal opportunity to discover impending danger, the action, if any, required of a passenger is in inverse ratio to the care exercised by the driver. If the driver is guilty of negligence as a matter of law, a passenger who does nothing is guilty as a matter of law of failing to exercise due care. Dee v. City of Peru, supra; Elliott v. Elgin, J. & E. Ry. Co., 325 Ill. App. 161; Henert v. Chicago & N. W. Ry. Co., 332 Ill. App. 194. It is error to instruct the jury that although the driver did not exercise ordinary care for the safety of those in the automobile, yet the plaintiff, a passenger, might have been in the exercise of such care herself, without the slightest evidence that she did anything at all. Opp v. Pryor, 294 Ill. 538. When the negligence of the driver is a question of fact for the jury, a passenger who does nothing is not guilty as a matter of law of want of ordinary care. Langston v. Chicago & N. W. Ry. Co., 330 Ill. App. 260; Berg v. New York Cent. R. Co., 323 Ill. App. 221; Smith v. Courtney, 281 Ill. App. 530; Rhoden v. Peoria Creamery Co., 278 Ill. App. 452; St. Clair Nat. Bank of Belleville v. Monaghan, 256 Ill. App. 471. When a driver exercises due care there is a fair inference that the passenger who does nothing is in the exercise of due care. Opp v. Pryor, supra; Smith v. Courtney, supra; St. Clair Nat. Bank of Belleville v. Monaghan, supra.

When a passenger is not required to act, it is immaterial whether he was asleep or awake before or at the time of the collision. Thompson v. Riemer, 283 Ill. App. 371, was an action brought for the death of a sleeping passenger. Smith v. Courtney, supra, was an action for injuries to the driver, a passenger who was awake and three sleeping passengers. Judgments for the plaintiffs were sustained. In each case there was a head-on collision on an open road, the motor vehicle of the defendant swerving across the dividing line on the pavement into the path of the oncoming automobile, too close to permit the driver of the latter to avoid the impact. The question of the due care of the sleeping passengers was submitted to the jury as a question of fact. It is true, as pointed out by defendant in its reply brief, that in each case the reviewing court held the case before it was distinguishable from the cases where it is the duty of the passenger in a vehicle to be on the lookout for danger at places where it is known that danger is likely to exist. Our Supreme Court has not made that distinction. In Opp v. Pryor, supra, the plaintiff was for all practical purposes sound asleep when approaching the railroad crossing. She deliberately chose not to look and not to listen and, like a sleeping passenger, entrusted her safety to the driver. She was injured in a collision of the automobile in which she was riding as a guest and a train of cars at an unguarded crossing of the railroad and a city street, about 9:30 in the evening. As in the instant case, plaintiff sat in the front seat on the right-hand side, from which direction the train came. She testified that she did not remember anything about the collision; that she left the driving and management of the automobile entirely to the driver and did not do anything in connection with it. As said by the Supreme Court, “. . . her only reliance to prove her ordinary care was the testimony of Ethel Shambaugh (the driver) and Belle Wood (a passenger) as to what they could see.” The driver testified that she looked and did not see anything. The Supreme Court held that it could not say as a matter of law that there was no evidence of ordinary care of the plaintiff. The case was reversed because of the giving of the instruction hereinbefore referred to.

The evidence in this case most favorable to plaintiff, which must be taken as true on defendant’s motions and on this appeal, is that when the automobile reached the Green Bay road, just west of the North Western tracks, the three gates were down, a bell was ringing and the red lights on the gates were flashing; the driver waited until a train passed to the south and the gates went up; he then started to cross the tracks at 10 to 15 miles an hour; when about 65 feet from defendant’s northbound track he looked to the south but did not see the oncoming train; neither he nor Allen heard a bell or whistle when the automobile was on defendant’s tracks. Allen looked to the south and saw the oncoming train on the track they were on and saw the east gates starting to lower.

Of the many statements by the Illinois courts of review of the care required of a traveler on a highway in approaching and crossing railroad tracks, defendant selects the statement in Moudy v. New York, C. & St. L. R. Co., 385 Ill. 446. In that case plaintiff, the driver of an automobile, was injured at an unprotected, railroad crossing. He charged in his complaint that he was unable to see the approaching train because of high weeds and shrubs in the railroad right of way, or to hear the train because of failure to blow a whistle or ring a bell. The court said (p. 452):

“The rule has long been settled in this State, and is generally recognized, that railroad crossings are dangerous places, and that one crossing the same must approach the track with the same amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a crossing it is generally condemned as negligence. The law requires the traveler, under such circumstances, to make diligent use of his senses of sight and hearing, to retain proper control of his vehicle, and to exercise care commensurate with the danger to be anticipated.” (Citations.)

It has also been long established in this State that what is required of one approaching a railroad track depends upon the circumstances in each case, and the courts cannot say as a matter of law that one must conduct himself in a particular manner in each case and under all conditions. Neither can they say as a matter of law that a person is negligent in failing to look and listen, if misled without his fault or where the surroundings may excuse such failure. Chicago & A. R. Co. v. Pearson, 184 Ill. 386, 391; Chicago B. & Q. R. Co. v. Pollock, 195 Ill. 156, 163; Humbert v. Lowden, 385 Ill. 437; Langston v. Chicago & N. W. Ry. Co., 398 Ill. 248; Applegate v. Chicago & N. W. Ry. Co., 334 Ill. App. 141 (appeal denied 336 Ill. App. xiv [table]); Smith v. Illinois Cent. R. Co., 343 Ill. App. 593, 604.

The case of Humbert v. Lowden, 385 Ill. 437, was decided on the same day Moudy v. New York, C. & St. L. R. Co., supra, was decided. In the Humbert case plaintiff’s decedent and Owen Whitted, the driver of decedent’s automobile, died of injuries received when the automobile was struck by a fast passenger train running at its usual speed of 70 miles per hour at the intersection of State street in Geneseo, Illinois and defendant’s tracks, about 3 o’clock in the morning. The tracks run in a northwesterly and southeasterly direction; State street runs north and south; the train was running in a northwesterly direction on the westbound track; on the east side of State street and approximately 33 feet south of the center of the westbound track is a police station — a one-story building; gates and a bell operated manually by a flagman had been installed and maintained at the crossing for a number of years; at the time of the collision a red lantern was hanging on each gate; when lowered the gates extended across the traffic lanes, with the lanterns in front of approaching traffic; deceased and the driver entered the automobile about two blocks south of the railroad crossing and proceeded north to the crossing. There was a conflict in the evidence as to the distance from the crossing persons passing to the north of the police station could see a westbound train. There was also a conflict of evidence as to whether the gates were down. The flagman was on duty. The Appellate Court reversed the judgment for plaintiff, holding that even if it be assumed that the crossing gates were not lowered, the decedent as a matter of law was not in the exercise of ordinary care for his own safety in going upon the crossing without observing the approaching train. The Supreme Court said (pages 442-443):

“It is true that the record indicates that if deceased had looked in the direction from which the train was approaching, after the automobile had reached a point where his vision was not obstructed by the police station, he could and would have seen the approaching train. Under the particular facts in this case, this is not conclusive, as a matter of law, that he was guilty of contributory negligence. . . .

“Here, for the protection of the public, appellees had erected and maintained crossing gates. If the gates were not lowered this amounted to an invitation to travelers on the highway. It was an assurance, to them, that they could cross over the railroad tracks in safety. In Chicago and Alton Railroad Co. v. Pearson, 184 Ill. 386, it was said: ‘It is not a rule of law that the omission of the duty to look and listen will bar a recovery where there are facts excusing the performance of that duty.’ This rule was quoted' with approval in Chicago and Eastern Illinois Railroad Co. v. Schmitz, 211 Ill. 446. It was there said that it is a question for the jury to determine whether, in view of all the surroundings, the injured party was guilty of negligence, in failing to look and listen, or whether he is relieved, by the circumstances, from the duty to look and listen.”

The Supreme Court reversed the judgment of the Appellate Court, holding that under the facts of the case it was a question of fact for the jury whether deceased was excused from the duty of looking.

There is no conflict between the decision in Moudy v. New York, C. & St. L. R. Co., supra, relied on by defendant, and the decision in Humbert v. Lowden, supra, when they are read in the light of the facts in each case and the questions presented to the court. In the Moudy case plaintiff was approaching an unprotected crossing where he claimed the view of approaching trains was obstructed by high weeds and shrubs on defendant’s right of way. In the Humbert case the deceased was approaching a railroad crossing protected by a bell, gates and lights operated by a watchman on duty at the time of the accident and plaintiff claimed that the gates were up, indicating that the tracks could be crossed in safety. It is obvious that the exercise of due care would require different conduct of the approaching travelers. Humbert v. Lowden, was fully discussed and followed by the Appellate and Supreme Courts in Langston v. Chicago & N. W. Ry. Co., 330 Ill. App. 260; 398 Ill. 248. In that case signal lights maintained by the railroad were not working and the driver of the automobile ran into a moving freight train crossing the highway on a foggy night. The question of exercise of due care by the driver and three occupants of the automobile was held to be a question of fact for the jury.

The Humbert and Langston cases were followed in Applegate v. Chicago & N. W. Ry. Co., 334 Ill. App. 141. In that case plaintiffs decedents were killed when a northbound passenger train traveling 90 miles an hour struck the automobile in which they were riding west on 27th street in Zion, 111. The railroad maintained flasher signals at the crossing. The driver of decedents’ car stopped east of the tracks to wait for the passing of a southbound freight train. The signals were working. There was evidence that as the caboose of the freight train passed 27th street the flasher lights ceased functioning; the driver started forward without waiting for the freight train to get far enough from the crossing to give a clear view of the northbound track, the second from the east; as the front of the automobile reached that track it was struck by the passenger train. There was no evidence that the passengers did anything. In holding that the exercise of due care by the decedents was a question of fact for the jury, the court referred to Grubb v. Illinois Terminal Co., 366 Ill. 330, 337, and cases from other jurisdictions, holding that the failure of crossing signals does not relieve the traveler of his duty to look for approaching trains, and said (pages 156-7):

“The case at bar, however, is clearly distinguishable from the foregoing decisions. The light signals herein were operating during the time the freight train was passing over the intersection, and decedents had reason to rely upon them, not by virtue of their mere presence, but from the fact that they were obviously in working order. Had these signals not been operating initially the decedents might reasonably have contemplated the possibility of the mechanical failure of the apparatus. Under the circumstances involved herein, it could rea^ sonably be inferred that the decedents were lulled into a sense of security when they saw the signals functioning. Hence, when the lights ceased flashing, decedents may have legitimately concluded that it was safe to cross. (Langston v. Chicago & N. W. Ry. Co., supra.)”

So in the instant case, the driver saw the gates were down. When a train passed to the south he saw the gates raised. He could reasonably infer that the gates were in good working order and that the watchman, looking from his vantage point in the tower, saw no oncoming trains near enough to require keeping the crossing closed to traffic. The raised gates, then, were an invitation to him to pass over the tracks and assurance that he could do so in safety. Whether he exercised due care in relying on the appearance of safety created by defendant and crossing the tracks without looking carefully to the south for approaching trains, was a question of fact for the jury. So, too, was the due care of the silent and inactive plaintiff, who had no duty to say or do anything so long as the driver was in the exercise of due care for the safety of himself and the occupants of the automobile. The trial court did not err in submitting the question of plaintiff’s due care to the jury and in refusing to enter judgment for defendant notwithstanding the verdict.

The judgment is affirmed.

Affirmed.

Burke and Friend, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    John Crowley, Charles Kern, and Richard T. Criche, Appellees, v. Elgin, Joliet and Eastern Railway Company, Appellant.
    Gen. No. 46,096.

      Opinion filed March 8, 1954.
    Released for publication March 24, 1954.
    Knapp, Cushing, Hershberger & Stevenson, of Chicago, for appellant; Harlan L. Hackbert, of Chicago, of counsel.
    Louis Z. Grant, Marion J. Hannigan, and Edward Wolfe, all of Chicago, for appellees; Edward Wolfe, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

John Crowley, Charles Kern and Richard T. Criche filed a complaint in the superior court of Cook county against the Elgin, Joliet and Eastern Railway Company under the Federal Employers’ Liability Act for occupational dermatitis resulting from contact with diesel fuel oil and lubricating oils in the monthly inspection and servicing of defendant’s diesel locomotives. A jury returned separate verdicts in favor of each plaintiff, assessing Crowley’s damages at $42,800, Kern’s at $28,900 and Criche’s at $19,500. Defendant’s motions for judgments notwithstanding the verdicts or, in the alternative, for a new trial, were denied. A separate judgment was entered in favor of each plaintiff, to reverse which defendant appeals.

The evidence establishes that plaintiffs contracted occupational dermatitis from coming in contact with diesel fuel oils and lubricating oils in the monthly servicing and inspection of defendant’s locomotives in the roundhouse at defendant’s yard at East Joliet, Illinois. The plaintiffs and the defendant were engaged in interstate commerce. The word “dermatitis” means inflammation of the skin. The causes of dermatitis are varied. It may be caused by bacteria, food or other substances taken internally, virus, pus-forming organisms and fungus. Contact dermatitis, with which plaintiffs are afflicted, results from external contact with some substance which is irritating to the particular individual. Almost any substance, from household articles to industrial processes may cause a contact dermatitis in a susceptible individual. This is true also of chromates in sufficient concentration and of petroleum derivatives. Substances which will cause a dermatitis in one individual may not cause it in another; individual resistance varies. The external factors involved in contact dermatitis are the extent and frequency of the contact with the irritating substances and the time of individual exposure; personal factors are the susceptibility of the individual, the lightness of his complexion, his age as affecting his capacity to harden resistance to a new exposure, or Ms loss of resistance to a previously nonirritating exposure and personal cleanliness in avoiding unnecessary contact with the irritant and in removing the contacted substance by promptly washing the exposed parts of the body. To effect a cure, contact with the offending substance must be terminated. If kept away from the irritation a sufficient length of time, depending usually on the length and extent of prior contact, the individual may become entirely cured, and he may, by following proper precautionary measures, be able to return to his former occupation without further trouble.

The action is predicated upon alleged violation of the Federal Employers’ Liability Act, in that the defendant was 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 about diesel fuel and lubricating oils, and that as a result of one or more of the negligent acts of the defendant, each of the plaintiffs became and is afflicted with dermatitis. Defendant maintains that it cannot be held liable for the contact dermatitis with which each plaintiff became afflicted because the evidence fails to prove that it had actual or constructive knowledge of the hazard of dermatitis, or that it was negligent as charged. J ohn Crowley was first employed by defendant in 1913, and except when furloughed for lack of work, he had worked continuously for it since 1922. He was 61 years of age at the time of trial. He was classified as a general machinist. Between 1920 and 1947 he did general repair work in the “back shop” at Joliet on steam locomotives. In 1936 defendant began to replace its steam locomotives with diesel locomotives. The change-over from steam to diesel locomotives was completed by the end of 1949. Crowley had worked in the roundhouse on some occasions and was familiar with conditions there. In February 1947, by virtue of his seniority, he “bid in” upon a vacancy in the roundhouse at East Joliet, and for the first time started to work on diesel locomotives. He was in good health. Prior to February 1947, he had no contact with diesel fuel oil. He had an eighth grade education. He had not been instructed by the defendant as to the possible ill effects of coming in contact with this oil. No orders, written or otherwise, were received by him on this subject from his superiors. Prior to November 1947, when he first became afflicted with dermatitis, he had no skin affliction of any kind.

Each day a diesel locomotive would be brought into the roundhouse for monthly inspection and servicing. The work would be done by the crew of eight to ten men, two of whom were machinists and two machinist’s helpers. In removing the fuel oil filters, the machinist would come in contact with the fuel oil for a few minutes. In removing the lube oil filters and the sump strainer and inspecting the crankcase and bearings, lubricating oils would get on his hands. He did this work every other day. Neither he nor the other plaintiffs had anything to do with mixing the cooling fluid or filling the cooling system or the fuel oil tanks of the engine. In changing the packing in the water pumps, his hands would come in contact with the cooling fluid. When a leak permitted the oil and cooling fluid to mix — and it was hard to say how often that would happen — Ms only contact with the mixture was that in the water pump and shaft. It was the job of the boilermaker to drain off the cooling fluid and of the pipefitter to drain off the oil. In this work his hands and other parts of his body would come in contact with diesel and lube oils. He came in contact with these fuels every working day from February 1947 to. November 1947, when he first developed a rash on his hands and arms as far as his elbows. He first went to his family physician in Joliet on November 20, 1947. When his condition did not improve he asked Ms foreman to send him to the hospital. He was then sent to the Silver Cross Hospital in Joliet, where he saw Dr. William A. Meadows, the local surgeon for the defendant. Dr. Meadows testified that according to his recollection and records, Dr. Albers, his assistant, treated Crowley.

Dr. Meadows diagnosed Crowley’s condition as contact dermatitis from diesel oils. He continued to treat him until after January 1948. When the condition failed to improve he sent Crowley to the Northwestern University Clinic in Chicago. On January 2, 1948, Crowley went to the Public Health Institute in Chicago, which referred him to the Northwestern University Clinic, where he was examined and treated 18 to 20 times. When Dr. Meadows first saw Crowley on December 22, 1947, he made a report to defendant’s chief surgeon, Dr. B. J. Bennett in Chicago, on the forms provided by the defendant. In that report he found that Crowley’s condition was caused by “working near diesel oil” and made a diagnosis of Crowley’s malady as “contact dermatitis from diesel oil.” Upon the advice of the dermatologist at the Northwestern Clinic, Crowley remained away from work until the latter part of January 1948; then he worked four days. On February 7, 1948, he was again examined by Dr. Bennett, defendant’s chief surgeon, who said he would release him to work involving “no dirt, grease or oil.” Under the macMnist’s union agreement, Crowley could not take another machinist’s position by displacing another man. He could only bid in on a vacancy. Similarly, the defendant could not transfer him without his consent or refuse to allow him to work at any job to which Ms seniority entitled him. He reported for work on February 9,1948, but did not actually return to work until February 17, 1948. When he returned to work he had a conversation with Paul Verd, defendant’s superintendent of motive power, who read and discussed with him a letter, the substance of which was that the doctors had advised him not to work with oils • and greases, but that if he returned to work he did so upon his own responsibility.

At this time Crowley had been advised by his family physician that his work was the cause of his dermatitis and by the two company doctors not to return to work around diesel oil, and the dermatologist at the Northwestern Clinic had advised him to remain away from diesel work. He returned to his old job on February 17, 1948, which the defendant could not refuse him or transfer him from without his consent. Although there have since been vacancies in jobs in the back shop upon which he could have bid successfully by virtue of his seniority, he remained at that same job until he bid in another roundhouse job in August 1952. According to the stipulation of the days off duty, Crowley lost 46 days from work through February 1948. He lost several days each month thereafter. The rash spread to his face and neck and later to his legs and feet. He went to Hot Springs for three weeks and his condition improved. He was off work for several weeks in the summer of 1949 because of a spontaneous hemorrhage in the left leg, and during this time away from work his skin “improved tremendously.” When he returned to work, the eruption returned within a few days. He was off work because of his skin condition from May 1 to August 10, 1952, losing a total of 73 working days. He went again to Hot Springs. At the end of that period the condition of his skin was improved. At the time of the trial in December 1952, he had dermatitis in a “milder state” on his hands, wrists, forearms and ankles. In the opinion of Dr. Milton Robin, this condition was permanent because of the length of time and frequency of his exposure. Crowley had lost approximately 329 days from his work on account of the dermatitis from December 1947 to September 1952. His lost time and medical expenses total approximately $5,000.

Charles Kern had worked for defendant as a pipe-fitter since November 1915, and was the first man on the seniority list. He was 68 years old at the time of the trial. Prior to August 1948, his work as a pipefitter had been assembling, dismantling and - repairing the pipes of steam locomotives. Upon the conversion to diesel operations, the character of his work changed and thereafter he worked exclusively on diesel locomotives. His work included tightening, removing and repairing the pipes of locomotives. In disconnecting the pumps and the pipes of the oil systems, his hands would come in contact with the cooling fluid and the fuel oil. Sometimes some might splash on Ms neck, face or feet. In January 1949, he first noticed a reddening of his hands and a burning irritation. He thought the weather had chapped his hands. Early in February he went to Dr. Meadows, who prescribed an ointment, and then hospitalized him for two weeks. Prior to February 1949, he was in good health and had no sMn affliction. He had never made a study of the ill effects of worMng with diesel oil and did not know prior to that time that contact with the oil would affect him. No one had ever told him of the ill effects therefrom. He first saw Dr. Meadows on February 5, 1949, who found that he had “an itch, rash, on the back of his hands and forearms.” On Dr. Meadows’ orders he was hospitalized for two weeks. Dr. Meadows treated him for a time and when he apparently did not improve he sent him to defendant’s dermatologist, Dr. Irving M. Cobin. Dr. Meadows made a final report of his examination of Kern to defendant’s chief surgeon, Dr. Bennett, in which he found the cause of Kern’s condition: “Working in diesel oil developed rash on hands” and made a diagnosis of “contact dermatitis of hands and forearms.”

Kern returned to work for a few days in April 1949, and the rash flared up again. He went back to Dr. Cobin for treatment and at his direction remained away from work until June 1, 1949. He lost 90 days from work in this period. He continued to work in the roundhouse until the middle of July 1949. Then as the rash returned, at the suggestion of Dr. Bennett and on his own volition, he transferred to the back shop. After that, on account of the condition of his hands, he lost 3 days from work in August and September 1949, 3 days in 1950 and 4 days in 1951, when his work would occasionally bring him in contact with diesel oil and his rash would flare up. At its worst in April 1949, he had eruptions on his hands, fingers, wrists, arms, temples, neck, buttocks and thighs. By August 1949, the condition had nearly cleared up. At the time of the trial the skin on the fingers, hands, wrists and forearms was “slightly reddened, thickened and dry,” the elbows, temples, back, buttocks and thighs being clear. Dr. Robin, testifying for plaintiff, said he had no opinion whether this “fairly mild” eruption was permanent or not, and that if not further irritated, it might clear up altogether. Kern described the present condition of his spine, face and neck as “itchy” and that “since 1949 the condition of my skin has changed very little. It bothers me very bad and the irritation is still severe.” He lost a total of 118 days from his work, making the salary loss during that period of time approximately $2,500.

Richard T. Criche was 52 years old at the time of the trial and had 32 years of seniority as a machinist. Prior to 1945 his work had been regularly in the back shop. In 1945 he bid in a job in the roundhouse and worked regularly on steam locomotives until the conversion to diesel operations in the middle of 1948. His work on diesel engines was of the same general nature . as Crowley’s. In the early part of 1948 he was assigned to work on diesel locomotives exclusively. In connection with his work on these engines his hands would become saturated with fuel oil and it would sometimes "get on his face and clothes. Prior to commencing work on the diesel locomotives he did not know anything about danger from fuel and lubricating oils. No one had given him any instructions about the danger of exposure to the oils. He had an eighth grade education and had never had any training in this connection. The defendant did not furnish him with protective ointments, soaps, scrubbing fluids, gloves or other protective devices prior to June 1949. In June 1949 his skin developed a burning and itchy sensation and had little water blisters. He saw his foreman, who sent him to Dr. Meadows. He was then referred to Dr. Cobin, who commenced to treat him on June 7, 1949. He remained under the care of Dr. Cobin until June 28,1951. Dr. Cobin diagnosed his ailment as “contact dermatitis.” Dr. Meadows, in his official report to Dr. Bennett dated June 7, 1949, found that Criche had developed a rash on both hands from “working in diesel oil,” and diagnosed his condition as “contact dermatitis.” He saw Dr. Lawless in Chicago 11 times from March to June 1950. He went to Dr. Eobin for examination but not treatment on two occasions.

In July and August 1949, he worked as a temporary foreman where he was not exposed to diesel oils and cooling fluids and the eruption cleared gradually. Back at his regular job the rash broke out again and Dr. Cobin took him out of service in January 1950. He was out of service until March 30, 1950, losing 83 days’ work. He then gave up the roundhouse job and returned to work in the back shop, where he was only occasionally exposed to oil and dirt on the wheels of the locomotives he was working on. Occasionally he was required to work in the roundhouse a day or two at a time to fill a vacancy, and on account of a reduction in force during the steel strike, he went back to the roundhouse in June 1952, where he started to get a small rash. He was off work from August 7 to October 20,1952, because of an accidental injury to his right hand. He then returned to the back-shop job. He lost approximately 199 days from his work, or a total salary loss of approximately $1,500. At the time of trial he had a “mild amount of dermatitis on the tops of his hands and wrists,” with slight thickening of the skin and increased pigmentation. His condition was “approaching normality” and Dr. Eobin had no opinion whether it was temporary or permanent.

Plaintiffs were permitted to introduce evidence as to the effects of chromate solution used in the cooling system of the diesel locomotives on their counsel’s representation that at times the cooling fluid and fuel oils became mixed together as the result of leakage. There is evidence to support the theory on which the testimony as to the chromate solution was introduced. Defendant purchased its diesel fuel oil from Standard Oil Company under specifications. For use as an inhibitor of scale formation and electrolytic action in the cooling system of its locomotives, the defendant purchased from Dearborn Chemical Company a product known as No. 517, whose formula was a trade secret, but which was about two-thirds bichromate, which was within the general range of the chromate content of similar products. Used in a ratio of 50 ounces of compound to 100 gallons of water, this produced a solution of 1 to 384, or less than %oths of one per cent chromate. There was no evidence that defendant’s specifications for diesel fuel oil or the cooling solution differed in any respect from those commonly used by other railroads.

Prior to November 1947, when Crowley’s dermatitis first appeared, Dr. Bennett, defendant’s chief surgeon, knew that chromate in powder form and petroleum in certain concentrations caused skin irritations to some susceptible people. He had never heard of any case of a railroad employee claiming to have contracted such dermatitis. Defendant’s general superintendent, Paul .Verd, had worked with diesel locomotives since 1935, first in the servicing department of Electro Motive Division of General Motors, which manufactures diesel locomotives, then in successive positions with defendant in charge of diesel operations, interrupted by four and a half years’ service in diesel submarine motor maintenance during World War II. He had never heard of any case of dermatitis due to diesel fuel oil until Crowley’s case. It was known in 1947 that certain individuals suffered ill effects by coming in contact with solutions containing chromate. Books had been published on this subject. Dr. Cobin testified that it had been known for 22 years that certain oils would produce dermatitis. When he saw Kern and Criche he knew that they had been in contact with fuel oil. When Dr. Meadows first saw Crowley on December 22, 1947, he knew that his condition was caused from “working near diesel oil” and that this plaintiff was afflicted with contact dermatitis from fuel oil, and officially reported to Dr. Bennett on Kern on February 5, 1949, and on Criche on June 7, 1949. On December 22, 1947, Dr. Meadows issued an order that Crowley was not to work around diesel oil. Dr. Louis Schwartz, the senior author of the outstanding text on “Occupational Diseases of the Skin,” and who was the organizer in 1930, and until his retirement in 1947, the head of the dermatology department of the United States Public Health Service, said that at the time of his retirement he had heard of no case of dermatitis of a railroad employee from diesel fuel oils or cooling solutions, and that so far as he knew up to that time there had not been any case of dermatitis in the railroad industry in the use of diesel fuel oil and that he first learned of any such cases a year or two later.

Plaintiffs’ counsel interrogated the medical witnesses about their familiarity with certain medical publications, but none of the articles were admitted into evidence. In response to a question as to the period of time the effect of chromate had been known, Dr. Robin referred to the textbook “Occupational Diseases of the Skin” of which Dr. Schwartz was a coauthor, published in 1947, that dealt with and discussed the various industries in which chromates were used and the various reactions from exposure, and in response to a similar question as to knowledge of the effect of petroleum, he referred to the same textbook. On cross-examination he was shown a copy of the book and admitted that in the chapters on dermatitis caused by chromates and petroleum derivatives, there was no reference to those substances as used in the railroad industry. Later Dr. Schwartz testified that not until a year or two after July 1947, did he hear of any such dermatitis cases in the railroad industry. Dr. Robin also referred to an article in the Foreign Letters Section of the Journal of the American Medical Association for October 10, 1931, dealing with skin sensitivity to chromate compounds in the printing industry, and to an article by Dr. Schwartz in the Journal of Industrial Medicine in 1942 dealing with dermatitis among operators of air conditioning equipment. On cross-examination he admitted that he did not know whether chromates were used in the printing and air conditioning industries in original powdered form or in solution, although the hazard and reaction were different.

Dr. Robin also referred to an article entitled “Can Diesel Fuel Oils Cause Dermatitis” in the August 25, 1945 issue of the Journal of The American Medical Association. This article appeared in the “Queries and Minor Notes” section, a sort of “question box,” under a caption that the answers did not represent the opinion of any official bodies. During the cross-examination of Dr. Schwartz it developed that he had written the answer to the question which had been sent in by a Dr. Stivers, and he testified that it was not then a matter of common knowledge that men coming in contact with diesel fuel oil received dermatitis from it; that the question was referred to him for reply because it was not a matter of public knowledge; and that when he answered the question he thought it related to diesel trucks, for the problem of using diesel fuel oil had not then come to his attention.

There was no evidence that anyone connected with the defendant at the time had read any of these publications or that they were circulated among persons in the railroad industry. The first published article shown to have referred to dermatitis in the railroad industry was published November 17, 1951. Bach of the plaintiffs had incurred his dermatitis prior to that date. In support of defendant’s contention that by 1951 it had taken measures to counteract the dermatitis hazards, it points out that starting in 1949 new washroom facilities had been constructed in the roundhouse, adjacent to the diesel area; that late in 1948 or early in 1949 protective creams and ointments were made available and special detergents with a corn-meal scrubber were supplied at washstands in the roundhouse and later in the new roundhouse washrooms; that early in 1950, by an article in its magazine, by posted bulletins, by safety meetings and by letters read and distributed individually to all employees in the roundhouse and machine shops, these employees were warned of the possibility of contracting dermatitis and of personal hygenic measures taken to avoid contracting such dermatitis. Dr. Schwartz made a three-day inspection of defendant’s facilities in November 1951, and found them in good sanitary condition, with most of its basic recommendations already in force. He also examined 26 of the 36 individuals (out of 900 employees) who had reported cases of dermatitis in the past 5 years. Of these, 13 had no skin lesions at the time, 7 had nonoccupational diseases and 6 had active dermatitis of probable occupational origin, none severe enough to be disabled. He did not examine any of the plaintiffs.

These preventive measures were the result of investigation of the practices of other industries by both the operating and medical departments of the defendant following Crowley’s initial outbreak of dermatitis. Prior to that time there were washroom facilities with individual wash basins, shower stalls and toilets available in the main shops, immediately adjacent to the “old roundhouse” where most of the roundhouse employees kept their clothes and equipment. In the roundhouse itself at first there was only running cold water. Late in 1949 both hot and cold running water were made available there. Outside the section of the roundhouse where plaintiffs worked, about 50 feet away, was a washroom with hot and cold water, washstands and showers. There was a conflict in the evidence as to who were permitted the use of this washroom. Kern testified that the reason the roundhouse employees did not like to use that washroom was that it was also used by yard and other employees, whom Criche referred to as “muckers.” None of the plaintiffs used the washing facilities available to them prior to the outbreak of their dermatitis. Crowley washed only at the noon hour. Kern did not wash with soap and water, but used kerosene and waste to clean his hands, a practice which Dr. Schwartz testified was more likely to cause dermatitis than any other. Criche used kerosene and oil to clean his hands, but he never washed himself at work. After the protective creams and ointment and the detergent and scrubbing agent were supplied, Crowley used the protective creams only two days, and used the detergent but not the scrubber. Kern used the protective creams only half a dozen times and he never used the corn-meal scrubber. Cliche has never used these preventatives.

Dr. Cobin, defendant’s dermatologist, testified that it had been known for 22 years that certain oils would produce dermatitis. When he saw Kern and Criche he knew they had been in contact with fuel oil. Dr. Meadows diagnosed the cases as contact dermatitis from fuel oil. It was not until January 1950, that the defendant took preventive steps to publicize the danger from working with diesel fuel oil. Dr. Bennett testified that since 1927 it was known that petroleum in certain concentrations could cause skin eruptions. He knew prior to 1947 that rubber gloves were proper prophylactics for exposure to fuel oils. Dr. Schwartz and others had written a book in 1939 containing a discussion on “Petroleum Dermatitis.” It was known for many years and publicized by pamphlets issued by the United States Health Service that “petroleum was a hazard as a cause of dermatitis.” Dr. Schwartz testified that in 1942 he knew that petroleum and its derivatives were a cause of dermatitis; that he had known that since 1930; that he had compiled or prepared publications printed by the United States Government with protective measures “involving exposure to petroleum and its derivatives”; and that he had published the first of these in 1930 and in all there were 6 to 12 of such documents. At least 6 of such pamphlets written by Dr. Schwartz were published by the government in medical journals and in trade journals. In Dr. Schwartz’s book, published in 1939, he wrote about “the hazard of exposure to petroleum oil and its derivatives in so far as dermatitis is concerned.” Crowley testified that when he returned to work in February 1948, there were no bulletins posted with reference to the use of diesel oil, nor were ointments or protective creams furnished to him. While the defendant urged cleanliness as an effective preventative against contact dermatitis from fuel oil, there were no washing facilities in the roundhouse prior to June 1949. Wash basins and showers were not installed until May 1950.

In Urie v. Thompson, 337 U. S. 163, the United States Supreme Court held that an occupational disease was an injury within the meaning of the Federal Employers’ Liability Act. One of the points raised in that case was whether the trustee of the railroad knew or, by the exercise of ordinary care, should have known of the danger of silicosis arising from the conditions of employment. The court said that the Act does not define negligence, leaving that question to be determined by the common-law principles as established and applied in the federal courts; that the ruling in Erie R. Co. v. Tompkins, 304 U. S. 64, has no application; that what constitutes negligence for the statute’s purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes; and that federal decisional law formulating and applying the concept governs. The court quoted with approval from Sadowski v. Long Island R. Co., 292 N. Y. 448, 456, the statement that “ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect.” In the Urie case the court said further (186):

“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.”

The question presented by defendant’s motion for judgment notwithstanding the verdict is whether there is any evidence fairly tending to prove the cause of action. The court accepts as true, evidence in favor of the plaintiff and gives him the benefit of all favorable inferences that might reasonably be drawn therefrom. Halloran v. Chicago & N. W. Ry. Co., 327 Ill. App. 217 (abst.); O’Neal v. Caffarello, 303 Ill. App. 574. In Blair v. Baltimore & Ohio R. Co., 323 U. S. 600, the Federal Supreme Court said that to deprive railroad workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them, citing Bailey v. Central Vermont Ry. Co., 319 U. S. 350, 354. In Lavender v. Kurn, 327 U. S. 645, the court said (653): “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” In Ellis v. Union Pacific R. Co., 329 U. S. 649, the court said (653):

“The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be fin whole or in part’ the cause of the injury. . . . Whether those standards are satisfied is a federal question, the rights created being federal rights. . . . The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from un-controverted as well as controverted facts, are questions for the jury.”

The question at issue in this case was recently decided by the Second Circuit of the United States Court of Appeals in Young v. Pennsylvania R. Co., 197 F.2d 727. There, an action by a dining-car waiter to recover damages for a contact dermatitis on his hands and arms alleged to have been caused by the use of three well-known products supplied by his employer for cleaning and sterilizing the dining-car equipment, resulted in a verdict in plaintiff’s favor for $3,500. Under Rule 50 (b) of the Federal Rules of Civil Procedure the verdict was set aside and judgment entered in favor of the defendant. Plaintiff’s medical evidence showed that these three products were irritants, and if used for a prolonged period would produce dermatitis. The Court of Appeals, in reversing the judgment and reinstating the verdict, said (727):

“From the evidence the jury could find that the plaintiff was exposed to the harmful effects of the above named irritants for long periods of time and that such exposure caused his injury. On the subject of negligence the jury was instructed that for the plaintiff to recover they must find that the use of the three cleansing agents created a risk of injury to the plaintiff which a reasonable person would have guarded against, and that the defendant did not take such measures to guard against that risk as would have been taken by a reasonably prudent man. Although there was no evidence that any other employee of the defendant had ever been similarly affected and representatives of the manufacturers of the cleaning products testified that they were widely used for the same purposes for which the defendant used them and no such injury had ever occurred so far as they knew, we think a jury question was presented. The plaintiff testified that he visited the defendant’s medical department at various times when the rash showed on his hands and the defendant’s response to interrogatories acknowledged that the medical examiner of the railroad knew that the plaintiff claimed to be suffering from a dermatitis of undetermined cause. Although the proof was far from strong, we think it was error to set aside the verdict.”

Defendant calls our attention to the fact that this was a per curiam opinion, one judge dissenting, and argues that the opinion is neither controlling nor persuasive. Defendant also calls attention to the rule that only decisions of the Federal Supreme Court are controlling under the federal statutes, citing Lewis v. Braun, 356 Ill. 467; Kenna v. Calumet, Hammond & Southeastern R. Co., 206 Ill. App. 17, 26. Defendant exhibits as an appendix to its reply brief the briefs of both parties in the Toung case and states that from the briefs it is apparent that the presentation was most inadequate. We observe that it was maintained that it “cannot be held that the furnishing of these products to the plaintiff for use by him in his work constituted negligence on the defendant’s part unless the Railroad can be charged with notice that one or more of these products was likely to cause injury to the plaintiff or to someone doing the same or similar work,” and that “there is no evidence on which to predicate such notice.” In that brief counsel for the railroad, calling attention to the rule that liability arises from negligence and not from injury, said that the record of the case “is completely void of any evidence that any other dining car employee of the defendant, or for that matter, anyone else ever incurred contact dermatitis” through the use of the polish or other solutions used by the plaintiff.

In our opinion the briefs in the Young case adequately-presented the question before us.

In Baumgartner v. Pennsylvania R. Co., 292 Pa. 106, 140 Atl. 622, a Federal Employers’ Liability Act case, the court sustained a verdict for the plaintiff. In that case it was alleged that the decedent met his death by being fatally poisoned by monoxide gas arising from hot ashes in a pit from which the decedent was required to shovel the ashes. The court said (110): “. . . 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.”

In Harvey v. Welch, 86 N. H. 72, 163 Atl. 417, an action to recover damages for injuries sustained by plaintiff in using an oxalic-acid solution in cleaning automobile radiators, the court said (73):

“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.’ ”

In the instant case the jury was instructed that the burden was upon each of the plaintiffs to prove by a preponderance of the evidence that prior to the time he contracted his dermatitis the defendant had actual knowledge of or, in the exercise of reasonable care, would have known that the plaintiff or any other employee similarly employed, was reasonably likely to contract a dermatitis from such contact that he might reasonably be expected to have with the oils used on or about the diesel locomotives. In our opinion, whether the defendant could or might have known of the dangers to the plaintiffs from the exposure to the diesel oils and chromates, was a question of fact for the jury. We have come to this determination after a careful reading of the transcript of the evidence, the briefs and the cases dealing with the proposition. It is significant that when Dr. Meadows first saw Crowley on December 22, 1947, he diagnosed his condition as contact dermatitis from diesel oils. He made a similar diagnosis as to Kern and Criche. There is evidence that defendant could or might have known that repeated or continual contact with diesel fuel and lubricating oils and with chromate solutions would cause dermatitis. There is evidence that notwithstanding this knowledge the defendant took no preventive measures until after plaintiffs had contracted dermatitis. We are of the opinion that the court was right in overruling defendant’s motions for judgment notwithstanding the verdict.

Defendant argues that the court erred in admitting the medical reports made out by Dr. Meadows and transmitted to Dr. Bennett because they are hearsay and therefore incompetent and inadmissible. The reports were offered to prove that the defendant knew, through its own doctors, that diesel fuel oil caused the dermatitis with which plaintiffs were afflicted. These reports were properly received in evidence as admissions against interest. Defendant asserts that the court erred in permitting questions concerning medical publications on dermatitis. Plaintiffs’ counsel questioned the medical witnesses as to whether they were familiar with certain medical publications. There was no attempt made to show that any of the publications mentioned were in general circulation and usage. In Ullrich v. Chicago City Ry. Co., 265 Ill. 338, the court said (341):

“The law is well settled in this State that scientific books may not be admitted in evidence before a jury, and that such books cannot be read from to contradict an expert witness except where such expert assumes to base his opinion upon the work of a particular author, in which case that work may be read in evidence to contradict him.”

We are of the opinion that the court erred in permitting questions concerning medical publications on dermatitis. Inasmuch as there is strong support in the record for the verdicts on the question of liability, we do not believe that the judgments should be reversed and the cause remanded for the error. Under all the circumstances we do not think that defendant was harmed by the admission of the evidence.

Finally, defendant urges that the verdicts are so excessive as to require a new trial in the interest of justice. We agree that the verdicts are excessive. Crowley lost only 46 days from work before he insisted upon returning to work in the roundhouse against the advice of all the doctors he had seen up to that time. His wage loss to that date was $575. He was warned that if he insisted upon his right to return to work in the roundhouse he did so not at the direction or insistence of defendant, but of his own accord. On February 19, 1948, he returned to the job in the roundhouse, which he knew was the cause of his condition and persisted in working there despite the fact that there have been vacancies in the back shop upon which he could have bid successfully by virtue of his seniority. The folly of his course of conduct is made clear by contrasting his case with those of Kern and Criche. They transferred to jobs in the back shop. Kern, after transferring, lost only 13 days from work on account of his dermatitis in 2% years. At the time of the trial Kern’s and Criche’s dermatitis was mild and in the opinion of Dr. Eobin was not permanent and was curable. As the result of continuing to work in the roundhouse and failing to follow the preventive measures directed by the defendant, Crowley lost an additional 250 days or more from work on account of his dermatitis and in the opinion of Dr. Eobin, because of the length of time and the frequency of exposure, his condition is now permanent. Crowley’s wage loss was somewhere between $4,000 and $5,000. His only out-of-pocket expense was about $200. Section 53, 45, USCA, provides that the fact that an employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. We are satisfied that when Crowley knowingly remained in contact with the source of his occupational disease and failed to use the means provided for protection against the hazards, he was guilty of contributory negligence as a matter of law. The record does not support a verdict for $42,800. Therefore, the judgment of the superior court of Cook county is affirmed as to John Crowley on the filing of a remit-titur by him in the sum of $22,800 in the office of the clerk of this court within 10 days; otherwise, the judgment as to that plaintiff is reversed and the cause remanded to the superior court for further proceedings consonant with this opinion.

Following the initial outbreak of his dermatitis, Kern lost 90 days from work. Later he lost 13 more days. His total wage loss on account of his dermatitis is approximately $1,500. Criche lost 83 days from work following the initial outbreak of his dermatitis. His subsequent wage loss, including the time lost on account of an accidental injury to his right hand, was about 50 days. His entire wage loss is approximately $2,000. Dr. Robin, testifying for plaintiffs, had no opinion whether Kern’s condition which was “fairly mild at the time of trial,” or Criche’s condition which was “approaching normality,” was permanent or not. He thought that if they would each avoid further contact with the irritating substances, their condition might be entirely cured. Under the testimony there can be no award of damages for either of these men on the theory of permanency of their injuries. There was no evidence of any monetary loss to either Kern or Criche other than their wage loss. We think that the verdicts of $28,900 and $19,500 in favor of these two plaintiffs are excessive. The verdicts in favor of Crowley and Criche were more than ten times their monetary damage and Kern’s was more than twenty times his loss. The judgment of the superior court of Cook county is affirmed as to Charles Kern on the filing of a remittitur by him in the sum of $18,900 in the office of the clerk of this court within 10 days; otherwise, the judgment as to him is reversed and the cause remanded with directions to proceed in a manner consonant with the views expressed. The judgment of the superior court of Cook county is affirmed as to Richard T. Criche on the filing of a remittitur in the sum of $9,500 in the office of the clerk of this court within 10 days; otherwise, the judgment is reversed and the cause remanded with directions to proceed in a manner consonant with the views expressed in this opinion.

Judgments affirmed with remittiturs: otherwise, judgments reversed and causes remanded with directions.

Niemeyer, P. J. and Friend, J., concur.


text:
    Joan Semeniuk, by Joseph Semeniuk, her Father and Next Friend, Appellant, v. Viriginia Chentis, Anthony Chentis, Sherman T. Swanson, Trading as For Men, Schuham Hardware Company et al., Appellees.
    Gen. No. 46,148.

      Opinion filed March 8, 1954.
    Released for publication March 24, 1954.
    Tom L. Yates, and Louis A. Smith, both of Chicago, for appellant.
    Marion J. Hannigan, George F. Callaghan, and Edward Wolee, all of Chicago, for certain appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Joan Semeniuk, a minor, by Joseph Semeniuk, her father and next friend, filed an amended complaint in the superior court of Cook county alleging that on June 22, 195Q, on a public street in a populous area in the City of Chicago, she was shot in the eye and blinded by a BB pellet discharged from an air rifle by Leonard Chentis, a minor of less than 7 years of age. She names as defendants Leonard Chentis, the minor who discharged the missile from the air rifle, Virginia Chentis and Anthony Chentis, his parents, Sherman T. Swanson, the merchant from whom the air rifle and certain BB pellets were purchased, Schuham Hardware Company, a corporation, from whom the ammunition used in the mishap was purchased, and John McElheny, who handed the ammunition to Leonard Chentis and assisted him in loading the rifle, and asks damages of $190,000. A motion to dismiss the amended complaint on the ground that it does not state a cause of action, filed by Swanson, was sustained. The plaintiff elected to stand on her amended complaint and judgment was entered in favor of Swanson, to reverse which this appeal is prosecuted.

The amended complaint avers that prior to June 22, 1950, the parents of Leonard purchased the air rifle and ammunition to be used therewith from Swanson, a merchant doing business in Chicago, and delivered the rifle into the possession of their son, Leonard; that at the time of the purchase Swanson knew that the rifle was being purchased for the use of and was to be put in the possession of Leonard, that the defendant knew or ought to have known that Leonard was unacquainted with and inexperienced in the use of air rifles, and knew or ought to have known that if the air rifle was placed in the possession of or used by Leonard and the ammunition therefor made available, he would load and discharge the rifle in Chicago, Illinois, and that if he did load and discharge the rifle in Chicago, it would be probable that a member of the public would come to some harm from the use of the rifle, Leonard being known to the defendant to be a child of less than 7 years of age, lacking in judgment and discretion and lacking in knowledge of the dangerous consequences of the use and discharge of an air rifle.

At the time the rifle was purchased the parents also purchased ammunition for the rifle. The pellet which struck plaintiff causing her injury was not part of the ammunition purchased from Swanson. Leonard Chen-tis and John McElheny, minors, purchased the additional ammunition for the air rifle from the Schuham Hardware Company. John gave the ammunition to Leonard and assisted him in loading the rifle. The carelessness and negligence of Leonard caused the rifle to be discharged, injuring the plaintiff. The pellet which struck plaintiff in the eye was part of the ammunition purchased from the Schuham Hardware Company. Leonard had no experience with air rifles or any other firearms and was lacking in judgment and discretion and in the knowledge of the dangerous consequences of the use and discharge of an air rifle. Swanson knew at the time of the sale that the air rifle was being purchased for the use of and was to be in the possession of Leonard, and then knew or ought to have known that Leonard was unacquainted and inexperienced in the use of air rifles, and knew that if the air rifle was placed in the possession of or used by Leonard, he would load and discharge the rifle in Chicago. Swanson also knew that Leonard was a child of less than 7 years of age, lacking in judgment, discretion and knowledge of the dangerous consequences of the use and discharge of air rifles.

Plaintiff states that she has a good cause of action against Swanson. This defendant maintains that the sale of the air rifle by him to “Virginia Chentis and Anthony Chentis” was not the proximate cause of the subsequent injury sustained by- the plaintiff. Both parties cite Hartnett v. The Boston Store of Chicago, 265 Ill. 331, in support of their position. In that case it was alleged that the defendant violated the provisions of an ordinance of Chicago which prohibited the sale of firearms to minors. The defendant sold to Oscar Soderquist, a boy 15 years of age, a 22-caliber rifle and two boxes of cartridges therefor. He took the gun and ammunition to his home, where he hid it for a few days. Subsequently, while using the rifle in target practice he hit the plaintiff who was walking along the public alley. The court allowed defendant’s motion for a directed verdict and entered judgment accordingly. The Appellate (185 Ill. App. 332), and the Supreme Courts affirmed the judgment. The Supreme Court said that an unloaded gun is not inherently dangerous and that the plaintiff was bound to allege and prove that her injury might reasonably have been anticipated as a consequence of the sale of the gun to the boy, but it was not alleged that there was anything in the character or disposition of the boy or such want of skill and experience as rendered it dangerous for him to have a gun. The court concluded that the evidence did no more than show that the defendant created a condition by which the injury to plaintiff was made possible through the carelessness of the boy.

In section 308 in Restatement of the Law under the title Torts, the authors state (835):

“It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.”

Under Comment b. pertaining to this quotation, the authors state:

“The rule stated in this Section has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children or feeble-minded adults.”

In the same volume, section 447, the authors say:

“Negligence of Intervening Act. The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, . . . .”

In the case of Wintersteen v. The National Cooperage & Woodenware Co., 361 Ill. 95, our Supreme Court discusses the doctrine of proximate cause. The plaintiff recovered a judgment for personal injuries sustained by him in Pennsylvania when he was unloading barrels from a railway boxcar shipped by the defendant from Peoria, Illinois. There was evidence of violation on an interstate commerce rule and of negligence in the loading of the boxcar at Peoria, and that because of the manner in which it was loaded, the plaintiff was injured. The court said (104):

“It is difficult to write a general rule by reason of the complex and diversified circumstances arising daily in the modern industrial and business world defining a situation in which the causal connection is broken so as to release the party guilty of negligence in the first instance from liability for the injury suffered by another. It may be stated as a general rule that in order to render the party liable for his negligent act such act must be so related to the injury as to be the proximate cause thereof. The intervention of independent, concurrent or intervening forces will not break the causal connection if the intervention of such independent force was itself probable and foreseeable. (Sullivan v. Ohlhaver Co., 291 Ill. 359; Miller v. Kelly Coal Co., 239 id. 626.) Tested by this rule, the facts fail here to show, as a matter of law, the interruption of the causal connection, or that the dunnaging of the car with defective ' materials or in an improper manner was not the proximate cause of the plaintiff’s injuries. Such issue was a question for the jury.”

In the Hartnett case the declaration failed to make any allegation that the minor was inexperienced in the use of firearms or unfit in anywise to handle or use them,

and “therefore omitted an element essential to constitute a legal cause of action.” The amended complaint in the instant case supplies the element that was absent in the Hartnett case. We find that the amended complaint states a cause of action at common law. We do not think that the allegations as to the violation of the city ordinances by Swanson state a cause of action. The judgment of the superior court of Cook county is reversed and the cause is remanded with directions to proceed in a manner consistent with the views expressed.

Judgment reversed and cause remanded with directions.

Niemeyer, P. J. and Friend, J., concur.


text:
    Roland B. Hughes et al., Appellants, v. Encyclopaedia Britannica, Inc., Appellee.
    Gen. No. 46,173.

      Opinion filed March 8, 1954.
    Rehearing denied March 24, 1954.
    Released for publication March 24, 1954.
    Bubenstein & Becker, of Chicago, for appellants; Harry Becker, and Bernard S. Booth, both of Chicago, of counsel.
    Lederer, Livingston, Kahn & Adsit, of Chicago, for appellee; Leo H. Arnstein, and Herbert E. Buben, both of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Plaintiffs filed a complaint as a class action for specific performance by defendant of its plan to purchase annuities for its employees. Plaintiffs appeal from the decree dismissing the complaint, as amended, for want of equity. The complaint alleges that on February 1, 1944, defendant put into effect a retirement income plan for its employees by which it agreed to purchase retirement insurance for the employees on February 1st of each year; that pursuant to the plan defendant entered into a group annuity contract with the Equitable Life Assurance Society, hereinafter for convenience called the Society; and that it failed to make two of such payments. A second count alleges that on June 28, 1948, and January 28, 1949, it sent notices to its employees, implicit in each of which was a promise to make the premium deposits; that the statements and promises were such that the defendant should reasonably expect to induce the plaintiffs and all employees to continue in the employ of the defendant in order to obtain the benefits of the plan; and that such employees were therefore entitled, as a matter of right and justice, to have purchased for them the retirement annuities as set forth in the plan. Attached to the complaint is the plan and the group annuity contract. Plaintiffs’ theory is that they state a good cause of action in that the plan constitutes a valid contract between defendant and its employees, and that the notices, standing alone, render the defendant hable under the doctrine of promissory estoppel. Defendant’s theory is that the plan, the only document to which plaintiffs may look to determine their rights, did not and could not give rise to an enforceable, unilateral contract; that no cause of action lies under the alternative theory of promissory estoppel; and that the suit cannot be brought as a class action.

In our view the contract which the defendant entered into with the Society for the implementation of the pension plan is not relevant to any issue in the case. Plaintiffs in asserting any alleged rights against defendant can look only to the plan promulgated to them by the defendant. In a proper case plaintiffs as third-party donee beneficiaries could enforce the contract against the Society in the event that it refused to pay annuities which had been purchased for the employees by the defendant.

We agree with defendant that its noncontributory pension plan did not give rise to an enforceable unilateral contract, and that by its terms the plan precludes a construction by which a contractual obligation can arise in favor of plaintiffs. Section 12 provides that the Society will issue for delivery to each participant under the plan a certificate of his inclusion under the group annuity contract issued to it by the Society; that benefits under the plan will be governed in every respect by the group annuity contract; that the only rights or benefits that any participant may have under the plan shall consist only of such rights and benefits purchased for him under the group annuity contract; and that no participant shall have rights or benefits under the plan against the defendant. Under section 13 a participant has no right to assign, transfer or anticipate his interest in any payments under the plan. Section 14 states that defendant expects to continue the plan indefinitely “but necessarily reserves the right to change, amend or discontinue the Plan should future conditions in the judgment of the Company warrant such action.” This section also states that no change or discontinuance for any reason whatsoever can affect the retirement annuities purchased for employees prior to the date of the change or discontinuance, and that if the plan is discontinued, the participant, whether or not he remains in the employ of the defendant, will receive at his retirement date the retirement income that has been purchased for him prior to the date of its discontinuance. Section 15 states that all of the funds paid by the defendant to the Society will be used solely to purchase annuities for participants under the plan and that any sums refundable by the Society under the contract because of the termination of participants’ services without vested retirement income will be applied within the year so refundable, or within the next succeeding year, toward the purchase of annuities as therein provided for participants remaining under the plan. This section further provides that “the adoption of this Plan is entirely voluntary on the part of the Company and it shall not be construed as creating a contractual relationship between the Company and an eligible employee, nor shall it be construed as a term of any employment contract, or be interpreted to give the right to any employee to be retained in the service of the Company.”

These provisions say that the defendant is paying the entire cost of the plan; that the payments are voluntary; that no contractual relationship is intended or created between the defendant and its employees; that employee rights under the plan arise only after annuities are purchased from the Society and that such rights arise only against the Society and with respect to the purchased annuities; and that the defendant reserves the right to amend, change or discontinue the plan if, in its exclusive judgment, future conditions warrant such action. We are satisfied that under the law of this State the pension plan promulgated by the defendant does not give rise to a contractual relationship with the defendant. See Umshler v. Umshler, 332 Ill. App. 494. The weight of authority in cases outside of Illinois also support that view. See Menke v. Thompson, 140 F.2d 786; Fickling v. Pollard, 51 Ga. App. 54, 179 S. E. 582; Shear Co. v. Harrington (Tex. Civ. App.), 266 S. W. 554; McNevin v. Solvay Process Co., 32 N. Y. App. Div. 610, 53 N. Y. S. 98; Webster v. Southwestern Bell Telephone Co. (Tex. Civ. App.), 153 S.W.2d 498.

Defendant concedes that an employer receives a benefit from instituting a pension plan by way of increased stability of employment and in the greater security and contentment of its employees and that it is largely for this reason it instituted and presently maintains such a program. It does not follow, however, that where a pension plan is placed into effect the employee thereby acquires a vested right to have the plan kept in effect. Plaintiffs rely on Psutka v. Michigan Alkali Co., 274 Mich. 318, 264 N. W. 385, and Tilbert v. Eagle Lock Co., 116 Conn. 357, 165 Atl. 205. In these cases employers’ death-benefit programs which were unenforceable as contracts by their express terms were treated as contracts in order to avoid the otherwise harsh result of depriving an employee’s beneficiary of accrued death benefits. We do not believe that the reasoning of these cases can be applied to the factual situation at bar. Here there is an attempt to require the defendant to purchase annuities under a noncontrih-utory pension plan which will only at a later and contingent date give rise to pension payments to the employees. In the instant case the defendant has exercised its right to discontinue purchasing more annuities. Plaintiffs’ action must fail whether on the theory that the plan constitutes an unenforceable gratuity, or on the theory that if contractual, it is unenforceable by its express terms. A pension, like any other form of employee benefit, can be bargained for, made the subject of an enforceable contract, given in the form of a gift, or set up in a plan containing provisions which vest the employer with complete discretion to terminate or continue the plan or to grant or withhold accrued pension benefits. The plan in the instant case may not be enforced by the plaintiffs against the defendant so as to require it to continue purchasing annuities thereunder. Plaintiffs suggest that when defendant sought and secured qualification of the plan under the Internal Revenue Code, it is doubtful that it labeled the plan “an unenforceable gratuity.” We understand that section 165 of the Code relates to the fixed and irrevocable obligation created after contributions have been made under the plan and not to any obligation to place a plan in effect or to continue it in effect. Defendant’s plan qualified under this provision as once payments were made to the Society, none of such payments could be used or diverted to purposes other than the exclusive benefit of its employees or their beneficiaries.

The second count is based on the theory that the defendant is liable under the doctrine of promissory estoppel discussed in Restatement of the Law, Contracts, section 90, that “a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Plaintiffs state that a reading of the plan makes it obvious that the employer should have reasonably expected that it would induce continued service on the part of the employees, which it did, and that if the promise is not enforced, then obviously an injustice has been done to the employees. They state that on February 21, 1948, defendant failed to make the payment then due and that on June 28,1948, it wrote its employees that under its contract with the Society “the premium payment may be made either at the beginning or end of the policy year,” and that on January 28,1949, the defendant advised the employees it was making the payment referred to before January 31, 1949, and “again exercising the option of not paying the 1949 premium deposit on the first day of February, 1949.” Plaintiffs argue that the promise of eventual payment, implicit in the notices, the reasonable expectation that the promise would induce continual service and the obvious injustice done to the employees when the promise was not kept, constitute ample grounds for invoking the doctrine of promissory estoppel. In support of its position plaintiffs also cite Williston on Contracts, Vol. 1, section 140 (1936); Estate of Beatty v. Western College of Toledo, 177 Ill. 280, 292; Estate of Switzer v. Gertenbach, 122 Ill. App. 26, 29; Richelieu Hotel Co. v. International Military Encampment Co., 140 Ill. 248, 264; West v. Hunt Foods, Inc., 101 Cal.App.2d 597, 225 P.2d 978. This theory seeks to extend the area of enforceable promises beyond the unilateral contract cases and covers situations where the promise of a gift is followed by a detrimental change of position by the prospective donee. In the case at bar plaintiffs have failed to plead a good cause of action under a promissory estoppel theory because there is no fraud, no intent to deceive and no detrimental change of position.

The chancellor was right in entering a decree dismissing the complaint, as amended, for want of equity. Therefore, the decree of the superior court of Cook county is affirmed.

Decree affirmed.

Niemeyer, P. J. and Friend, J., concur.


text:
    James Schwartz, Appellee, v. Civil Service Commission of City of Chicago et al., Appellants.
    Gen. No. 46,187.

      Opinion filed March 8, 1954.
    Released for publication March 24, 1954.
    John J. Mortimer, Corporation Counsel for City of Chicago, for appellants; L. Louis Kartoh, Head of Appeals and Review Division, and Harry H. Pollack, Assistant Corporation Counsel, both of Chicago, of counsel.
    Michael F. Ryah, of Chicago, for appellee; Richard F. McPartlih, Jr., of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

James Schwartz served as a patrolman in the classified service of the Police Department of the City of Chicago for more than 16 years. He was suspended on July 21, 1952. Charges filed by the Commissioner of Police with the Civil Service Commission on August 5, 1952, allege that on July 20,1952, Schwartz was guilty of conduct unbecoming a member of the police department and that on July 21, 1952, he was under the influence of intoxicating liquors. At the hearing there was no proper evidence of the charges of conduct unbecoming a police officer because the women who had complained failed to appear. The Commission made a finding and decision that on July 20, 1952, the respondent, while in the uniform of a patrolman and on a regular tour of duty, was intoxicated and under the influence of intoxicating liquors and ordered that he be discharged from his position as a patrolman and member of the police department. He filed a complaint to review the decision of the Commission and asked that the record be quashed. As a part of their answer the commissioners filed a record, including a transcript of the proceedings at the hearing. The court found that the decision of the Commission “is not supported by any evidence in the record and is against the manifest weight of the evidence,” and ordered that the record be quashed and that the decision be reversed. Defendants appeal.

Dr. Patrick S. Vitullo, Chief Physician and Surgeon of the Chicago Police Department, testified that on July 21,1952, pursuant to a call, he arrived at the 40th District Police Station at about 7:30 p. m., where he .examined plaintiff for sobriety; that plaintiff had a staggering gait and was under the influence of intoxicating liquor; that his co-ordination was bad; that he did not know the day of the week or the people around him; and that the plaintiff admitted to him that he had two drinks of Seagrams Seven. Edwin J. Daly, Police Inspector, testified that about 6.T5 p. m. on July 21, 1952, he arrived at that police station, having been called by Dr. Vitullo; that plaintiff was there and that Dr. Vitullo told witness that the plaintiff said that it was Tuesday and when asked again he said it was Wednesday; that witness asked the plaintiff what day it was and he said it was Thursday; and that in fact it was Monday. The evidence shows that plaintiff had reported in uniform for his tour of duty at 3:45 p. m. that day but was excused and told to remain for a show-up at 6:30 p. m. Plaintiff’s tour of duty was from 3:30 p. m. to 11:30 p. m. The actions with which plaintiff was charged occurred during his tour of duty.

Plaintiff testified that for eight days prior to July 20,1952, he had been on the medical roll and that July 20, 1952, was his first day back at work; that he had a cold and was running a temperature; that he had dysentery; and that he eventually went to see Dr. Reynolds of the police department on July 16,1952, who told him to go back to work if he felt better by the end of the week. He testified as to his actions on the evening of July 20, 1952, in connection with transporting two women from the Edgewater Hospital to the County Hospital and denied all charges of wrongdoing. He testified that he finished his assignment at about 1 o’clock on the morning of July 21, although he was supposed to be off duty at 11:30 p. m. on July 20; that he left the station and went home to bed; that after his wife left for work he went to his mother’s house to sleep because there was less noise there; that about 2:00 p. m. he went home and found a note saying that Captain Welling, his superior, wanted to see him immediately; that he put on his uniform and went to the station; that he was weak and dizzy and the cold was coming on; that he had dysentery all day; that on the way to the station he stopped at a tavern and had one drink of Seagrams bourbon; that he told the bartender he had dysentery and that the bartender suggested he take blackberry brandy; that he consumed two one-ounce drinks of blackberry brandy; that he had no breakfast or lunch on that day; and that he “had been unable to eat anything for about a week.” He stated that after he left the tavern he went to the station and saw Captain Welling, who said “I will see you at 6 o’clock” and then left in an automobile; that he attended the roll call and was told by the sergeant he was excused from duty but to stay in the station, since there was trouble about two girls and there would be a show-up about 6 o’clock; that he stayed in the station until around 6 o’clock; and that he was examined by Dr. Vitullo, who asked him to walk a straight line, to pick up a quarter from the floor and to write his name and address. Plaintiff denied that he was intoxicated at that time and said he was “awfully sick.” He testified that he was going to request that his day be switched on July 21, but that when he saw Captain Welling and was told to stay in the station and heard what was going on, he did not bother.

George Krull testified that he had known plaintiff for 27 years; that during the week of July 13 he heard that plaintiff was ill, went to his home and found him in bed ; that although it was a very hot night, plaintiff had a woolen blanket on him and had a chill; that on a second visit to plaintiff the same condition prevailed; and that witness was advised that plaintiff had dysentery. He said that plaintiff’s reputation for truth and veracity was excellent and that his reputation for sobriety was very good. John J. Soragarue testified that he had known plaintiff for 25 years; that his reputation for truth and veracity was very good; and that he had always been a sober man. Officer Bloomstrand, who was plaintiff’s partner on the night of July 20, 1952, denied any misconduct with the two women. He stated that he was not sick on that night; and that plaintiff was sick. He testified that he asked plaintiff how he was feeling and that plaintiff said he thought he could get through the evening.

July 20, 1952 was a Sunday. Plaintiff was charged with being intoxicated on July 21, 1952. The evidence establishes that he was guilty of that charge. The finding and decision of the Commission was that he was intoxicated on July 20, 1952. This was clearly a typographical error. It does not appear that the error in the day materially affected the rights of the plaintiff. He knew that he was being charged with being intoxicated on July 21, 1952. The testimony was that he was intoxicated on that day and his testimony related to that day. Section 12 (2) (par. 275, ch. 110, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 104.094(12), subd. (2)]) of the Administrative Review Act provides that technical errors in the proceedings before the administrative agency or its failure to observe the technical rules of evidence shall not constitute grounds for the reversal of the administrative decision unless it appears to the trial court that such error or failure materially affected the rights of any party and resulted in substantial injustice to him. The typographical error in finding that he was intoxicated on July 20,1952, when the evidence shows that he was intoxicated on July 21, 1952, did not and does not affect the rights of plaintiff and did not and does not result in substantial injustice to him.

Plaintiff maintains that the Commission erred in improperly admitting hearsay prejudicial testimony against him. This evidence related to the charge that plaintiff was guilty of conduct unbecoming a policeman. Inspector Daly testified as to the statements of the two women who charged the plaintiff with improper conduct. We do not believe the admission of that testimony prejudiced plaintiff. He was not found guilty of that charge.

For the reasons stated the judgment of the superior court of Cook county is reversed and the cause remanded with directions to enter judgment against plaintiff.

Judgment reversed and cause remanded with directions.

Niemeyer, P. J. and Friewd, J., concur.