text:
    In the Matter of Estate of William C. Fischer, Appellant, v. Anna S. Fischer, Appellee.
    Gen. No. 46,246.

      Opinion filed March 8, 1954.
    Released for publication March 24, 1954.
    George Yellen, and George E. Sankstone, both of Chicago, for appellant.
    Clarence E. Mercer, of Chicago, for appellee; T. J. McCormick, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On March 2, 1946, William Carl Fischer of Chicago made and published his last will in which he directed that his just debts and funeral expenses be paid by his executrix; that he be buried in a certain lot in Graceland Cemetery, Chicago; and that she have sole charge of the interment. The will bequeathed all the rest, residue and remainder of his estate to his wife, Anna S. Fischer, and his sister, Sophie L. Fischer. He nominated and appointed his sister as executrix of the will. He died on December 9,1946 at the age of 67 years. On December 12, 1946, the widow, Anna, caused the body to be interred in Bosehill Cemetery, Chicago. On December 16,1946, the will was filed in the probate court of Cook county. The will was proved and letters testamentary issued to Sophie, as executrix, on January 22, 1948. On May 8,1951, the executrix petitioned the court to allow the removal of the body from Bosehill Cemetery for burial in Graceland Cemetery. The widow in an answer opposed the petition. Neither cemetery was made a party. Following a hearing the probate court denied the petition. - On a trial de novo the circuit court ordered that the cause be dismissed. The executrix, appealing, prays that the order of the circuit court be reversed and that an order be entered that the body be interred in Graceland Cemetery.

The executrix maintains that her brother had the right to direct the place of his interment and that it was and is her duty to enforce that provision of the will. The widow says that she performed her duty in giving the body of her husband a decent burial and that the court was right in denying her sister-in-law the right to remove the body from the grave where it is resting. Mr. Fischer was a clerk. He and Anna were married 43 years. He retired in 1943. During his last illness of 4 years the widow cared for him. During his lifetime he caused to be erected a headstone with his name thereon in Rosehill Cemetery. The executrix did not file an inventory. Apparently, she did not discover any property of the deceased. The widow knew that her husband made a will. It is doubtful that she knew the contents of the will. The sister-in-law accompanied her brother from his home to a lawyer’s office where the will was drafted and she knew the contents thereof.

In People v. Harvey, 286 Ill. 593, the Supreme Court said (601):

“Right of possession of a dead body in the absence of any testamentary disposition belongs usually to the husband or wife or next of Mn.”

In Palenzke v. Bruning, 98 Ill. App. 644, the court said (650):

“While it may be true there is no right of property in a dead body, in the ordinary sense, it is also true that the nearest relatives of the deceased are and have been in all ages, so far as known, except under ecclesiastical law, recognized as legally entitled to its custody, to lay it away in burial. It is the duty no less than the right of such relatives to protect it from unnecessary violation, and any infringement upon that right, except where made necessary for the discovery and punishment of crime, violates the tenderest sentiments of humanity.”

In that case we quoted from Foley v. Phelps, 1 N. Y. Appellate Division 551, 553, as follows:

“It has been stated in general terms in several cases that in the absence of testamentary direction on the part of the deceased the exclusive, right of burial, and of designating the place in which human remains shall be interred, is with the next of kin.”

In Mensinger v. O’Hara, 189 Ill. App. 48, the court said (53):

“The decided weight of authority in this country supports the proposition that while a dead body is not considered as property, in the ordinary, technical sense in which that word is usually employed, yet the law does recognize a right, somewhat akin, perhaps, to a property right, arising out of the duty of the nearest relatives of the deceased to bury their dead, which authorizes and requires them to take possession and control of the dead body for the purpose of giving it a decent burial. This right is an exclusive right to the custody and possession of the remains, and in the absence of any testamentary disposition, belongs to the surviving husband or wife, if any, or if there be none, then to the next of kin.”

The right of burial ordinarily includes the right to determine the time, manner and place of burial. It is the policy of the law, except in cases of necessity or for laudable purposes, that the sanctity of the grave should be maintained, and that a body once suitably buried should remain undisturbed, and a court will not ordinarily order or permit a body to be disinterred unless there is a strong showing that it is necessary and that the interests of justice require. A burial by the consent of those having the paramount right is regarded in law as a final sepulchre which cannot be disturbed against the will of those who have the right to object, generally the next of kin, on account of change in feeling or circumstances, except upon strong and convincing evidence of new and unforeseen events occurring since the burial showing that it would be unreasonable to refuse the removal. See 25 C. J. S. Dead Bodies.

When William Fischer died his widow made arrangements for the funeral and paid the funeral expenses. At the time of the wake and burial in Rosehill Cemetery the sister knew of the direction in her brother’s will that he be buried in G-raceland Cemetery. A few days after the burial she filed the will in the probate court. She did not take steps to have letters testamentary issued for more than a year thereafter. The petition to remove the body was not filed until more than four years after the interment. The sister also knew that her brother had erected a headstone with his name thereon at the lot in Rosehill Cemetery, where he was subsequently buried. It is generally conceded that on the death of a husband or wife the primary and paramount right to the possession of the body and to the control of the burial or other legal disposition thereof is in the surviving spouse and not in the next of kin, in the absence of a different provision by the deceased. At the time of his death the widow was not aware of the direction in the will that he be buried in Graceland Cemetery. The sister, with knowledge of that direction in the will, permitted her brother’s body to be interred in Rosehill Cemetery and took no steps to carry out his request for more than four years. The sister did not attempt to carry out the direction of the will as to the interment. There is no direction in the will as to moving the body after interment. The executrix was given sole charge of the interment. When application is made to a court for permission to remove a body, it has the right to require a showing of reasonable cause for the removal and reinterment. Each case must be considered in equity on its own merits, having due regard to the interests of the public, the wishes of the decedent, the rights and feelings of those entitled to be heard by reason of relationship or association, the rights and principles of the religious body or other institution which granted the right to inter the body at the first place of burial and determining whether consent was given to the burial in the first place of interment. In the instant case the sister did not make any showing of reasonable cause for the removal and reinterment of her brother’s body. Under the circumstances, any right the sister as executrix might have had to inter the body of her brother in Graceland Cemetery was lost by her failure to assert that right before the body was interred in Rosehill Cemetery.

The parties do not raise any question as to the jurisdiction of the probate court to try and decide an issue as to the possession and interment of a dead body. Controversies relative to the interment or disinterment of dead bodies are within the jurisdiction of courts of equity. 25 C. J. S. page 1031. Section 20 of Art. VI of the Constitution states that probate courts when established “shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons . . . and in cases of sales of real estate of deceased persons for the payment of debts.” Section 7 of the Probate Act (par. 157, ch. 3, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 110.253]) states that probate courts have the same powers to enforce observance of all orders, decisions, judgments and decrees made by them in the discharge of their duties under the Act, to issue attachments for contempt and to fine and imprison offenders as circuit courts have in similar cases. In Howard v. Swift, 356 Ill. 80, the court said that the probate court is not a court of general jurisdiction, that any acts which attempt to extend such jurisdiction beyond that conferred by the constitution are void and that the court can only exercise equitable power within the zone conferred by the constitution. The court held that the probate court does not have jurisdiction of claims ex delicto. In Roffmann v. Roffmann, 384 Ill. 315, the court said that an administrator stands in the place of the deceased, that he is required to inventory the estate of which the deceased was seized at the time of death, to administer the property as it was at that time, and to settle the estate accordingly.

Section 79 of the Probate Court Act (par. 231, ch. 3, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 110.328]) states that before issuance of letters to an executor his power extends to the burial of the decedent, the payment of necessary funeral charges and the preservation of the estate. Section 80 [Ill. Rev. Stats. 1953, ch. 3, § 232; Jones Ill. Stats. Ann. 110.329] of that Act provides that the executor shall administer all the testate and intestate estate of the decedent. Section 79 does not affect the right of interment of the body as hereinbefore discussed. That section protects the executor in the payment of funeral and burial charges. In the instant case no estate has been inventoried and there is no property to administer. Certainly the dead body of the deceased forms no part of the estate. The probate court has no general equitable jurisdiction of controversies relative to the interment and disinterment of human bodies. While the circuit court, to which the case was appealed, has original equitable jurisdiction to entertain and decide such, a case, yet on the appeal from the probate court the general jurisdictional power of the circuit court on the appeal is limited and circumscribed to the same jurisdictional subjects as the probate court. Howard v. Swift, 356 Ill. 80. In our opinion neither the probate court nor the circuit court had jurisdiction to determine the issue presented.

For the reasons stated the order of dismissal of the circuit court of Cook county is affirmed.

Order affirmed.

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


source: Caselaw Access Project

author: Mb. Justice Burke

license: Public Domain

text:
    Ruth McKinney and Harry McKinney, Appellants and Cross-Appellee, v. Edna B. Nathan, Administra-trix of Estate of Joseph E. Nathan, Deceased, Appellee and Cross-Appellant.
    Gen. No. 46,255.

      Opinion filed March 8, 1954.
    Released for publication March 24, 1954.

      Louis G-. Davidson, of Chicago, for appellants.
    Eckebt, Peterson & Lowry, of Chicago, for appellee; A. B. Peterson, Harold W. Huff, and Egbert Gr. Schloerb, all of Chicago, of counsel.
   Mb. Justice Burke

delivered the opinion of the court.

Buth McKinney and Harry McKinney filed a complaint against Edna B. Nathan, administratrix of the estate of Joseph E. Nathan, deceased, for damages occasioned by the alleged negligent operation of his automobile by the decedent which resulted in a collision of that vehicle with the plaintiffs’ automobile. There was a verdict for the defendant as to plaintiffs’ claims upon which the court entered the judgment from which this appeal is taken. A verdict for $4,000 on her counterclaim against Harry McKinney was set aside and judgment for the latter entered, from which a cross-appeal is prosecuted. Plaintiffs’ theory is that defendant’s intestate negligently failed to yield the right of way to plaintiffs’ automobile which was on Harlem Avenue, a preferential highway, that he ran through a plainly visible stop sign and crossed Harlem Avenue at considerable speed, crashing violently into plaintiffs’ vehicle. Defendant’s theory is that if the evidence was sufficient to permit the drawing of inferences, it was the function of the jury to draw those inferences and their conclusion that the administratrix was entitled to recover upon the counterclaim is supported by the law and the evidence, and that the trial was free from substantial error other than the action of the trial court in setting aside the verdict on the counterclaim.

About 9:30 on the morning of Tuesday, July 5,1949, a clear day and the pavements dry, plaintiffs’ 1942 Chevrolet sedan and decedent’s 1948 Studebaker sedan collided violently at the intersection of Harlem Avenue and 127th Street in a sparsely settled district southwest of Chicago. There were no eyewitnesses. Harlem Avenue runs north and south and 127th Street runs east and west. Both are four-lane highways at the intersection and for some 350 feet approaching it. As 127th Street approaches the intersection from the west it descends slightly, about three feet in 100. Harlem Avenue is a through or preferential highway and stop signs at the southwest and northeast corners require traffic on 127th Street to stop at Harlem Avenue. About 300 feet west of Harlem Avenue at the south side of 127th Street is a sign warning eastbound drivers of the stop sign ahead. There were no speed limit signs on Harlem Avenue south of the intersection and there was no evidence of any west of the intersection on 127th Street. A photograph introduced by plaintiffs taken immediately following the occurrence shows a sign bearing the legend “Speed Zone Ahead” immediately adjacent to the east edge of the Harlem Avenue pavement and south of 127th Street. A small real estate office building was situated at the southwest corner of the intersection about 50 feet south and west of the pavement. North and east of it were several trees. At 9:35 a. m. state highway police officers Raymond H. Stuart and James W. Lindsay received a call to go to the scene of the crash and arrived there at about 9:42 a. m., approaching the intersection from the north. Officer Lindsay said that this was a blind corner so that a northbound driver would not be able to see to the west until he reached the intersection. There was no direct evidence as to the direction in which the vehicles were traveling prior to the occurrence. From the debris the officer stated that the impact took place at the intersection of the inner lanes of the two highways. Officer Lindsay was permitted to state an opinion that the Chevrolet had been northbound on Harlem Avenue and the Studebaker eastbound on 127th Street. On cross-examination he stated that the evidence upon which the opinion was based would support an equally valid and contrary inference. There is no direct evidence as to where the cars were before the collision.

The vehicles came to rest at the northeast corner, the front of the Chevrolet against a tavern building and part of it across gasoline pumps which were south and west of the building and knocking down the most southerly of the three pumps. The Studebaker stopped facing southeast off the pavement about 40 feet east and over 100 feet north, and the Chevrolet stopped about 75 feet east and 75 feet north of the point of impact. Both vehicles traveled more than 100 feet from the point of impact, which was indicated by the presence of dirt and pieces of headlight glass in the intersection, and were about 30 feet apart when they stopped. There were no skid marks leading to the point of collision. The left-front corner and left side of the Chevrolet and the right-front corner and the right side of the Studebaker came into violent collision. Officer Lindsay admitted that it was possible that the same parts of the vehicles would come together and that they would have ended up where he found them if the Studebaker had been going south on Harlem Avenue and turning left into 127th Street, and the Chevrolet had been going east on 127th Street. The Chevrolet was driven by Harry McKinney, a 24-year-old mechanic employed and living in San Jose, California. Riding with him was his wife Ruth McKinney, a 26-year-old registered nurse. The Studebaker was driven by Joseph E. Nathan, age 63, an employee of the Sanitary District, whose work consisted largely of maintaining and operating recording instruments used for the elevation of water pressure at various pumping stations, treatment plants and along rivers and canals owned and operated by that District, and who used his car in this work. After the collision the police officers found Mr. McKinney unconscious behind the wheel of his car. His wife was on the ground semiconscious. Mr. Nathan had been thrown out of his car. Both plaintiffs were unconscious or semiconscious for long periods of time, had sustained severe cerebral concussions and were unable to recall the events preceding the occurrence. Mr. Nathan sustained injuries which caused his death about noon on the day of the occurrence.

There was evidence that both McKinney and Nathan were careful drivers. Nathan lived at 5344 Harper Avenue on the south side of Chicago. His wife last saw him sometime before 5:00 a. m. on the day of his death at G-alesburg, Illinois, which is about 182 miles southwest of Chicago, at which time he left there to go to work. His wife said that most of his work was at the pumping station in the vicinity of 125th Street and Michigan Avenue in Chicago. His working hours were from 8 in the morning to 4:30 in the afternoon. A fellow employee testified that one of the treatment plants where decedent called to repair instruments was located where the Calumet Sag channel crosses Harlem Avenue about at 123rd Street. The Calumet Sag channel also crosses 127th Street about two miles east of Harlem Avenue. This employee stated that decedent’s headquarters were at the Calumet sewage treatment works at 123rd and South Park Avenue. Don Brown, decedent’s supervisor, testified that decedent would have been there on the day of the occurrence.

Plaintiffs maintain that the verdict as to their claims is against the manifest weight of the evidence, that it was decedent’s duty to stop and ascertain definitely whether he could safely proceed into the protected thoroughfare, that the physical facts demonstrate that he did neither, that where the physical facts point unerringly to defendant’s liability a judgment in his favor will be reversed, that they had a right to assume that defendant would yield the right of way, were not required to anticipate that he would run through a stop sign directly into their path, that defendant’s counterclaim admitted plaintiffs’ allegations of the directions in which the vehicles were traveling, that evidence to the contrary could not properly be considered, that the evidence, apart from the pleadings, shows conclusively that plaintiffs were northbound and decedent eastbound, and that it was within the trial court’s discretion to permit the police officer to give his opinion as an expert that plaintiffs were northbound and decedent eastbound at the time of the collision. Defendant answers that the verdict is supported by the evidence, that the physical facts point to the liability of plaintiffs, that plaintiffs failed to prove that the decedent ran through a stop sign, that the pleadings do not make the admission claimed, that no questions were raised concerning the form of the pleadings, and that the evidence does not support the contention of plaintiffs concerning the operation of the vehicles prior to the impact.

Plaintiffs allege in Paragraph 3 of the complaint that they were northbound on Harlem Avenue and in Paragraph 4 that decedent was eastbound on 127th Street. Paragraph 3 of the answer filed by the administratrix states that she has no knowledge as to the allegations of Paragraph 3 and “therefore denies the same and demands strict proof thereof.” Paragraph 4 of the answer says that she “believes the allegations of Paragraph 4 to be true and correct.” Paragraph 2 of her counterclaim states that on the day of the occurrence her husband was the owner of an automobile which he was driving along and upon 127th Street “at and near the intersection in question.” Paragraph 4 of the counterclaim states that at the time and place “aforesaid” Harry McKinney was operating a certain automobile along and upon Harlem Avenue at and near the intersection “in question.” The answer and counterclaim were filed two months after the filing of the complaint. Defendant did not attempt to withdraw or amend them. Plaintiffs argue that since the statement of want of knowledge in Paragraph 3 of the answer was unaccompanied by the affidavit required by par. 2 of sec. 40 of the Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 164, subd. (2); Jones Ill. Stats. Ann. 104.040, subd. (2)], the allegations of the complaint must be deemed to be admitted, and that the statement in Paragraph 4 of the answer, not being an explicit denial of the allegations of Paragraph 4 of the complaint, must also be deemed to be admitted. They also call attention to the allegations of Paragraphs 2 and 4 of the counterclaim, say that these admissions are conclusive and that evidence disputing them cannot be considered.

The parties may, by the introduction of evidence or their conduct in the trial, waive formal pleadings or form their own issues on the evidence introduced, and they may voluntarily present under the evidence issues not presented by the pleadings. An objection that a certain matter is not an issue under the pleadings or that it is not denied or properly denied may be waived by a party where he introduces or brings out evidence bearing on the subject, or tries the case as if the matter were not in issue. Section 42 (3) of the Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 166, subd. (3); Jones Ill. Stats. Ann. 104.042, subd. (3)] provides that all defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived. Defendant’s counsel, in his opening statement to the jury, was silent about directions. Counsel for plaintiffs, in his opening statement, told the jury that his clients were traveling northbound on Harlem Avenue. He did not say anything to the jury about the direction of travel of the Studebaker car driven by Nathan. In his final argument to the jury he treated the direction of travel as an issue in the case. He said to the jury, “In addition to the testimony of the officers, what other evidence is there as to the directions as to which these cars were traveling?” and argued the point at length. Further in his argument to the jury plaintiff’s attorney said that in 1949 when defendant filed her answer and counterclaim she “admitted that they were on 127th Street.” On objection of defendant and a colloquy between counsel as to the claimed admission in the pleadings, the attorney for plaintiffs said, “All right, they didn’t admit them. They said they believed they were true. That’s what they said back in 1949. Now, that is something you can take into account in this case — what they said back in 1949.” Continuing his argument to the jury he said that “if you believe that Mr. Nathan was operating his automobile on 127th Street, you will know that Harlem Avenue was a through street and that he was under a duty to stop at that intersection before he entered into Harlem Avenue. If he had stopped at 127th would that automobile look like this ? Is it conceivable in your minds that this accident would have occurred if the car on 127th Street would have stopped before it entered Harlem Avenue?”

Continuing his argument to the jury, the attorney for plaintiffs said: “Now, I don’t know other than that Mr. Huff [attorney for defendant] made a comment to the police about his man going in a southerly direction — I don’t know what his contention is now as to how this accident happened, but he is going to tell you that and I will have an opportunity to answer.” The attorney for defendant in his final argument to the jury also argued to the jury the effect of the pleadings. He argued that if inferences were to be drawn there could be a reasonable inference from the evidence that Nathan who had visited a station of the Sanitary District on the canal on Harlem Avenue about a mile north of 127th Street, was driving south on Harlem Avenue and made a left turn east at 127th Street. He also disputed the contention of plaintiffs’ attorney that his clients were going north on Harlem Avenue and argued that the force of the impact was delivered by the Chevrolet automobile. In his rebuttal argument the attorney for plaintiffs, referring to the argument of his opponent, said: “He has got the man going east, and he has got him going south. Back in 1949 he knew what road he was on. . . . Now, if the man was going south and he turned left in front of our car and we crashed into him, and we were going at that enormous rate of speed, how does he explain that picture? . . . He says something about the canals. This man was around canals, probably going south. Why didn’t they bring in from the Sanitary District the man who this man worked for? . . . If that is the case, where is all this business about going south on Harlem Avenue ?” The purpose of pleadings is to present, define and narrow the issues and to limit the proof to be-submitted on the trial. If there was no issue of fact as to the direction in which the cars were traveling, the jury should be so advised by the court or by the attorneys under the direction of the court. The purpose of submitting a case to the jury is to have them pass on issues of fact. The instant case was tried on the theory that there was an issue as to the directions and movements of the cars and the respective attorneys tried and argued the case with such an issue in view. Having done so, the plaintiffs cannot now argue that there was no issue for the jury to determine as to the directions and movements of the cars.

Plaintiffs say that a fair analysis of the evidence will demonstrate that they were northbound on Harlem Avenue and the decedent eastbound on 127th Street, that he failed to stop for the stop sign at Harlem Avenue and drove into the intersection at considerable speed when the northbound vehicle was too close to permit plaintiffs to slow down or alter their course before the collision, and that the verdict can be accounted for only on the ground of sympathy for the defendant, a widow past middle age who was entirely dependent on her husband for support, intensified by inflammatory remarks by defendant’s counsel during his argument to the jury. The photographs show a terrific impact at the left-front corner of plaintiffs’ Chevrolet and the right-front corner of decedent’s Studebaker, and severe and extensive damage to the left side of the Chevrolet and the right side of the Studebaker. In addition, the steering wheel of the Chevrolet is badly bent and the windshield and window glass broken, the luggage compartment cover of the Studebaker is sprung, its steering wheel bent down and toward the right, the front seat broken and moved forward against the floor boards. After the collision the vehicles traveled northeasterly for more than 100 feet, the plaintiffs’ car stopping upright about 75 feet east and 75 feet north of the point of impact, and the decedent’s car coming to rest facing southeast about 40 feet east and 100 feet north of the point of impact. The absence of skid marks, the violence of the collision and the direction of the force tend to show that neither driver applied his brakes or altered his course appreciably before the collision and that the vehicles came together at approximately a right angle. Both vehicles must have been moving at a considerable speed at the moment of impact.

Any reconstruction of the accident must begin with the positions of the vehicles after the collision and proceed by hypothesis to the point of collision as indicated by the presence of the debris on the highway. Officer Lindsay was permitted to testify hypothetically concerning the direction of travel of the cars prior to the collision. Under cross-examination he admitted that the facts which led him to one conclusion would support another conclusion if one were to start with a different assumption. There is no evidence to support the allegation that the decedent failed to stop for the stop sign. Notwithstanding the tremendous force of the collision the Chevrolet veered but slightly from the direction of travel ascribed to it. In the trial court plaintiff endeavored to convince the jury that decedent was speeding across 127th Street in a hurry to get to his work, failed to stop at Harlem Avenue and that this caused the collision. Mr. Nathan was a man of careful and conservative habits. There was evidence that decedent used his car in visiting the gauges in the course of his work. The canal close to the scene of the collision was about one mile north thereof. It was entirely possible that he had visited the canal north of the scene of the accident and was coming from that point. The contentions of both parties are based largely on conjecture. We conclude that the verdict for the defendant as to plaintiffs’ claims is not against the manifest weight of the evidence. We find that the evidence does not support a verdict for the defendant on the counterclaim and that the court was right in entering judgment for Harry McKinney on the counterclaim.

Plaintiffs urge that defendant’s counsel during the arguments to the jury made inflammatory and prejudicial remarks. Plaintiffs’ attorney did not consider the argument to be inflammatory as he voiced no objection. We cannot say that the argument was inflammatory or prejudicial. Finally, plaintiffs assert that the court erred in giving five instructions. We have read all of the instructions and are convinced that the jury was fairly instructed. While criticisms may be leveled at the five instructions mentioned by plaintiffs, we do not believe that the giving of these instructions constitutes reversible error.

For the reasons stated the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

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


author: Mr. Justice Friend

text:
    Richard Lucado, Appellant, v. Virginia Lucado, Appellee.
    Gen. No. 46,087.
    Opinion filed March 8, 1954.
    Rehearing denied March 24, 1954.
    Released for publication March 24, 1954.
    Joseph E. Fitzgerald, of Chicago, for appellant; Frederick J. Bertram, of Chicago, of counsel.

      McCarthy, Witry, Lyon & McCarthy, of Chicago, for appellee; George R. Lyon, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Richard and Virginia Lucado were married August 25, 1940, and on April 25, 1943 their only child, Barbara, was born. On December 6, 1946 a decree of divorce was entered in favor of the plaintiff husband on the ground of desertion, and by stipulation he was given the care, custody and control of Barbara. The divorce was uncontested. On September 18, 1952 defendant filed a petition praying for the entry of an order granting her the care and custody of the minor child; plaintiff answered the petition. Subsequently, by agreement of the parties, the court ordered an investigation by the Cook County Department of Welfare, which submitted its report to the court. The chancellor also heard evidence and interrogated Barbara before entering his decree allowing the petition and awarding custody of the child to the mother, the defendant, from which action plaintiff appeals.

No stenographic report of the trial proceedings was made, but the parties agreed that the following evidence should be considered by the chancellor in reaching his conclusion. Defendant is remarried, resides with her husband in a home at Orland, Illinois, is employed as a secretary by United Air Lines in Chicago, and no child or children have been born to her as the result of her second marriage. Plaintiff also remarried, is the father of two children by his second marriage, is separated from his second wife, and now lives alone in a small apartment in Chicago. Barbara resides with plaintiff’s father and stepmother in the State of Michigan in a town approximately eighty-five miles from Chicago. Defendant has financial means to maintain the minor child as well as adequate accommodations in her home, and stated to the court that if her petition were allowed she would discontinue her employment at the United Air Lines office; she also stated that she would not ask for any allowance for maintenance and support of the child, but would defray the child’s expenses out of her own funds and on her own responsibility.

During her interrogation by the chancellor, Barbara indicated that she would follow and be guided by the court’s discretion as to her custody. In entering the decree the chancellor stated that, having heard the evidence and read the report of the Department of Welfare, as well as having questioned Barbara and observed the attitude and demeanor of all the parties concerned, he believed that it would serve the best interests of the minor child for her to be given to her mother; he pointed out too, that there was nothing in the record which showed that at any time defendant was an unfit person, and that no evidence was introduced indicating that she was in any way disqualified from assuming her duty as a parent.

The parties agree upon the fundamental rule that where the custody of a child is concerned, the question of primary importance is the preservation of the best interests of the minor, and the court evidently followed this rule in making the award. Plaintiff states that he was entitled to be heard as to the merits of the questions raised by the petition and the answers thereto, and argues that he was not afforded proper opportunity to offer evidence in his behalf. The record shows that he was represented at the hearing by an attorney, who was succeeded after the decision of the trial court by his present counsel, and there is nothing to indicate that he was denied the opportunity to offer any evidence he cared to present. Nothing to the contrary appearing in the record, we must assume that the hearing was fairly conducted.

As further ground for reversal it is urged that the chancellor erred in basing the custodial order upon the report of an investigator appointed by him and upon his private conversation with the minor child. The decision of the chancellor was not a hurried one. After the petition was filed plaintiff filed his answer; the matter was then set for hearing, continued for an investigation by agreement of the parties, and after numerous continuances was fully heard on December 15,1952, some three months after the petition was filed. The interrogation of the minor child was only one of the circumstances which induced the chancellor to award her custody to her mother. His decision is amply sustained by the evidence, aside from the interrogation and the report of the Department of Welfare. Plaintiff has no adequate accommodations for Barbara; in fact she lives with his father and stepmother in Michigan, and he goes there to see her week ends. On the other hand, defendant, who is the mother of the minor, lives with her second husband, has satisfactory accommodations for the minor, and is willing to relinquish her position in order to care for the child. The choice, actually, is between the minor’s mother, and her paternal grandfather and his wife. Since the mother is a fit person, there can be no question but that the child’s interests will be better served if she is cared for by her mother rather than by an older and less closely related couple.

We find no convincing reason for reversing the decree of the court awarding the custody of Barbara to her mother, and it is therefore affirmed.

Decree affirmed.

Ntemeyer, P. J. and Burke, J., concur.


text:
    James P. Hall, Appellee, v. Chicago and North Western Railway Company, Appellant.
    Gen. Nos. 46,184, 46,201.

      Opinion filed March 8, 1954.
    Released for publication March 24, 1954.
    Lowell Hastings, Drennan J. Slater, and Edward Warden, all of CMcago, for appellant; Gerald M. Chapman, of Chicago, of counsel.
    James A. Dooley, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

The plaintiff, James P. Hall, brought suit under the Federal Employers’ Liability Act (45 HSCA 51-60) to recover damages for personal injuries sustained while he was employed as a brakeman by the defendant, Chicago and North Western Railway Company, a common carrier engaged in interstate commerce. Following a jury verdict returned March 7, 1952 finding defendant guilty and assessing plaintiff’s damages at $50,000, plaintiff moved for a new trial, which was allowed by the court. Defendant appealed from that order under section 77 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 201; Jones Ill. Stats. Ann. 104.077], and on review we remanded the case with directions to reinstate or restore the judgment (Hall v. Chicago & N. W. Ry. Co., 349 Ill. App. 175). The principal question involved on the first appeal was whether it was prejudicial error for defendant’s counsel to advise the jury that any amount that might be awarded plaintiff by its verdict would not be subject to federal income tax. We held that it was not because the federal statute specifically so provides. On February 26, 1953, plaintiff filed a petition for leave to appeal to the Supreme Court of Illinois and pending the disposition thereof we stayed the mandate. Defendant filed a motion to dismiss that petition on the ground that the order granting a new trial was not a final and appealable order permitting an adjudication of defendant’s motion for a judgment notwithstanding the verdict, and on May 14, 1953 plaintiff’s petition for leave to appeal was dismissed. Subsequently, on May 29, 1953, the mandate issued by this court was filed in the superior court, the case was redocketed, and on June 4, 1953 a judgment was entered in favor of plaintiff pursuant to the mandate. Defendant then filed a notice of appeal from that judgment, but on June 9, 1953, on plaintiff’s motion, the trial court vacated the judgment entered on June 4 and entered a new judgment. On June 9, 1953 the defendant filed notice of appeal from the new judgment entered on that day. Plaintiff then filed a second notice of appeal which also appealed from the judgment entered on June 9,1953. On June 12 plaintiff filed a notice of cross-appeal from the judgment entered June 4, 1953, and on June 18 he filed a second notice of cross-appeal from the judgment entered on June 9, 1953.

On this appeal the principal question presented is whether the evidence in the record, most favorable to plaintiff, together with any reasonable inferences therefrom, establishes a breach of duty owed plaintiff by defendant. Defendant insists that it does not, and that the trial court therefore erred in refusing to enter judgment in its favor, pursuant to the motion for judgment notwithstanding the verdict.

The injury for which recovery is sought was sustained on August 11, 1947 at the Nachman Company premises in Chicago, Illinois. Evidence adduced upon trial showed that defendant was a railroad carrier and as such delivered and picked up freight cars from Nachman Company on a track that leads into the latter’s premises from the main-line tracks of the defendant. These premises are enclosed by an iron fence, and freight cars and locomotives enter through a gate. The track leading into the premises, running in a northerly and southerly direction, is curved as it enters, and by reason thereof the gatepost on the east side of the track is farther north than the gatepost on the west side. On the east side of the track and immediately to the south of the gate, Nachman maintains a freight platform approximately the height of the floor of a freight car, for the purpose of loading and unloading merchandise. This platform, which has been in existence for some thirty-five years, abuts the building. There is uncontroverted evidence that if part of it were cut off it would not be usable for loading and unloading purposes. It is undisputed that there was no room for a man to stand between this platform and a freight car forty to fifty feet long; also, that on the north end of the platform, as one enters the gate, there was a large, legible sign, in all caps, bearing the legend “WARHIHG-HO CLEARANCE FOR MAH OH SIDE OF CAR.”

From plaintiff’s own testimony it appears that on the day of the accident the switch crew, of which he was a member, had two loaded freight cars for delivery to Nachman. Four empty boxcars which were on the track within the premises had first to be taken out. The two loaded cars were uncoupled and left standing outside the gate on the main track immediately adjacent to and west of the Nachman track. After he had uncoupled these two cars, plaintiff, together with the conductor, walked south through the gate and into Nach-man’s premises. Plaintiff testified that as he walked through the gate, he observed the freight platform and saw that the track was curved. The angle position of the gate was obvious, and the warning sign on the freight platform was clearly displayed; plaintiff stated, however, that he did “not believe [he] looked for a sign,” although his duty as a switchman required him to familiarize himself with local conditions.

After entering the Nachman premises through the open gate, plaintiff continued, for a distance of several hundred feet, to the four cars that were standing on the Nachman track. The engine and caboose then came in and coupled onto these four cars. The engine was facing north and pulled ahead, with the tender, caboose and four cars following in that order. Plaintiff had taken a position on the bottom step on the east side and south end of the caboose. He testified that it was his intention to ride beyond the freight platform and gate, to get off the caboose outside the gate, and to go to the two cars that had been left standing there. Instead of looldng at the freight platform or at the gatepost on the east side of the track, he was looking across the platform of the caboose, and when he saw the gatepost on the west side of the track and the two cars, he got off, with his back to the loading platform, and was pressed between it and the car following the caboose. The train was moving about four miles an hour and stopped as soon as plaintiff fell. It was a clear day, but during the entire time plaintiff rode on the caboose he never looked north toward the freight platform, although if he had looked he could have seen it. It is undisputed that while he was riding on the step of the caboose he was in the clear of the platform and in a safe place. There is nothing in the evidence to indicate that plaintiff’s work required him to get off opposite the platform or that anyone told him to get off there. The place opposite the platform was not a place to stand during switching movements or a place from which to give signals. As a matter of fact, plaintiff testified — and his testimony is uncontroverted — that he did not alight from the caboose for the purpose of giving signals but because he mistakenly believed that he was getting off outside the gate to go to the two loaded cars in anticipation of the next switching operation.

Plaintiff was an experienced switchman and was cognizant of the rule which required him to familiarize himself with close clearances. While riding the caboose, he told Thompson, another member of the switching crew but new on the job, to “ride high” on the cars because the platform would not clear. The foregoing facts were undisputed.

Under the Federal Employers’ Liability Act it is incumbent upon plaintiff to prove that defendant was negligent, and that such negligence in whole or in part was the proximate cause of the injuries. Contributory negligence and the assumption of risk are no longer defenses under the federal statute, except that contributory negligence may be taken into account by the jury in mitigation of damages. The complaint makes six charges of negligence. The first three, stated in different form, allege in substance that defendant failed to exercise care to provide plaintiff with a reasonably safe place within which to work. The fourth is that defendant carelessly and negligently allowed switching operations on and along the track adjacent to the loading platform, although it knew or in the exercise of ordinary care should have known that such operations were hazardous to its employees. In the fifth charge it is set out that defendant carelessly and negligently operated, maintained and moved over the switch track two fifty-foot cars which were wider than the standard railroad car and thus approached more closely the platform in question; and the last charge asserts that defendant carelessly and negligently operated, maintained and controlled the cut of cars on which plaintiff was riding so that as a direct and proximate result thereof plaintiff was crushed between the platform and said cars.

The principal evidence relied upon to support the charge that defendant failed to provide a reasonably safe place within which to work is the admitted fact that there was insufficient clearance to accommodate a person standing on the ground between the freight-loading platform and a freight car on the adjacent curved track. There was no evidence whatever that the platform was defective in any way, that the business of defendant could be performed with the platform in any different location or at any greater distance from the track, that a loading platform of practical use could be placed or located any differently from the one in question, or that the platform and its proximity to a curving track was not standard, customary and in general use. Other evidence relied upon by plaintiff is that the platform had been there for thirty-five years; that thirty-five years ago railroad cars were about eight foot eight in width and thirty-six to forty-two foot in length, whereas today the average freight car measures ten foot six by forty to fifty; and it is argued that with a car some eight feet wide there would be two feet more clearance than with a ten-foot car. However, the proximate cause of the accident was neither the width nor the length of any of these cars; it was attributable to the fact that plaintiff stepped down from the caboose in a place where there was insufficient clearance. Judson H. Starr, called as a witness on behalf of plaintiff, testified that he had been a conductor for the defendant railroad for ten years and was then employed in the freight service; “I have ridden on the stirrup with a forty-foot car, I have ridden in there with a fifty-foot car too; the body of the car is dangerous against that platform, not the stirrup, not either end of the car, but the body swinging out.” There is no countervailing proof; indeed, it is admitted that if plaintiff had stayed on the step of the caboose instead of alighting in the only place where there was insufficient clearance between the platform and cars on the adjacent track, he would not have been injured. As still other evidence to support the charge of negligence in failing to provide a safe place in which to work, plaintiff argues that the gate into the premises was on an angle, thus making it possible for one to he outside the gate at one post and within the premises at the other. This switching operation took place in clear daylight. Plaintiff testified that he walked through the open gate with the conductor; he did not say that he failed to notice the angle; and from photographs admitted in evidence it is inconceivable that he could have failed to observe it. Moreover, he had been engaged in switching operations in that area for about ten days, had passed the Nachman premises frequently, and the railroad rules required him to familiarize himself with conditions on the premises. Standing on the step of the caboose, plaintiff, looking straight across the caboose platform, saw the north gatepost and got off, believing he was outside the premises. This unfortunate misjudgment by plaintiff certainly cannot be characterized as negligence on the part of defendant.

Under the provisions of the Federal Employers’ Liability Act negligence is the gist of the employee’s right of action against the employer. The Act does not make a railroad company an absolute insurer of the safety of the employee. Wilkerson v. McCarthy, 336 U. S. 53. Upon the uncontroverted facts heretofore recited, plaintiff bases his principal contention of negligence upon the proximity of the loading platform to the switch track. The gravamen of his argument is that defendant was negligent in failing to provide working space between the track and the freight platform. Federal and state cases uniformly hold otherwise. The facts in Pankey v. Atchison, T. & S. F. Ry. Co., 180 Mo. App. 185, 168 S. W. 274, bear a strong analogy to the case before us and emphasize principles which are controlling. A judgment was there entered in the trial court for the administratrix of a brakeman who was crushed between a car and a freight platform. The reviewing court reversed the judgment. In that case both ends of the platform were sloped to form a ramp, but otherwise it was substantially the same as the platform in the case at bar. Pankey in his capacity as head brakeman was directing the engineer during the process of picking up ears from a side track. After walking down the track ahead of the backing train, he attempted to climb the side of the platform and was crushed by the boxcar at the head of the train. There, as here, negligence was charged because of failure to provide a safe place to work. In discussing this question the court observed that the platform was in good condition and of standard construction, being the same height and distance from the track as all platforms on defendant’s road. The court then pointed out that it was not safe for employees to go between the platforms and moving cars, and the evidence showed that they were not required to do so. This fact, in the opinion of the court, distinguished the Pankey case from decisions permitting recovery in cases of close-clearance situations in which the essential element was that the injured employee was where he could reasonably and rightfully be expected to be in the performance of his duties.

In Sprankle v. Thompson (Mo.), 243 S.W.2d 510, plaintiff, a switchman, being unable to release a hand brake by operating the brake wheel in the usual manner, climbed to the top of the car, got on his hands and knees and, while making an effort to release the brake, came into contact with a canopy extending over the switch track and was thrown to the ground. As one of the assignments of error, he contended that defendant was guilty of negligence in failing to provide him with a safe place in which to work. He had testified that it was common practice to take the position that he had assumed on the top of the car when the brake could not be released from the platform. In considering whether a submissible case had been made by plaintiff, the court observed that there was no evidence that the canopy was not reasonably necessary for the protection of perishable products during loading and unloading operations, or that the canopy could have been placed higher above the tracks without minimizing its protective value, or that its elevation above the tracks was less than that of canopies used for similar purposes, or that it was constructed or maintained in any manner contrary to approved engineering and railroading practices. Plaintiff there argued that negligence could be inferred alone from the proximity of the canopy to the top of boxcars passing under it. However, the court, quoting with approval from Ford v. Dickinson, 280 Mo. 206, 217 S. W. 294, held that “ fit is only when such structures are unnecessarily main-

tained in dangerous proximity to the track that such maintenance constitutes negligence,’ ” citing several supporting cases, and then proceeded to distinguish the facts in the case from situations where the hazard was not readily apparent or where the failure to give actual warning would justify an inference of negligence, or where an offending obstacle placed in close proximity to the track could have been moved to afford greater and safer clearance without impairing or interfering with operative railroad practices, and concluded by holding “that plaintiff did not make a submissible case on the sole basis of the insufficient clearance between the top of the boxcar and the canopy.” In reaching this conclusion the court, again adopting the language of the Ford case, said that “ ‘in the practical operation of railroads there are, no doubt, many platforms and other structures, especially those used in connection with industrial plants, that are necessarily so close to the tracks that a brakeman or switchman cannot pass them in safety on the side of a moving car. That such situations are inherently dangerous is beyond controversy, but such dangers are incident to the operation of railroads, and do not arise from negligence.’ ” The court continued with the further pertinent observation that “it would seem unwise indeed to permit a lay jury to determine by pure conjecture and in total absence of evidence that the engineering and operative practices found in the instant case constituted negligence on the part of the railroad.”

To sustain plaintiff’s contention in the case at bar one would have to infer from no evidence at all that permitting the platform to remain in close proximity to the switch track was contrary to good railroading practice. The only evidence of record is directly contrary. Plaintiff produced no evidence whatever that the situation here presented was uncommon. Obviously a platform for the purpose of loading and unloading freight in and out of cars is far more efficient if it is located so as to have as small a space as possible between it and the cars on the track. Of course the close clearance created by such proximity gives rise to some danger, but not such as to be characterized as abnormal or extraordinary. The mere proof of a close clearance is not sufficient to warrant a finding of negligence. Atlantic Coast Line R. Co. v. Powe, 283 U. S. 401; Davis v. Hand, 290 Fed. 73, certiorari denied 263 U. S. 705; Toledo, St. L. and W. R. Co. v. Allen, 276 U. S. 165; and Killian v. Pennsylvania R. Co., 336 Ill. App. 152 (Abst.), certiorari denied 338 U. S. 819. See also Delaware, L. & W. R. Co. v. Koske, 279 U. S. 7, where plaintiff sued under the Federal Employers’ Liability Act for injuries sustained when he alighted from an engine and fell into a shallow drainage ditch between the tracks. In that case the court said that “the measure of duty owed by defendant to plaintiff was reasonable or ordinary care having regard to the circumstances. . . . There is no evidence that the open drain was not suitable or appropriate for the purpose for which it was maintained or that there was in use by defendant or other carriers any means for the drainage of railroad yards which involve less of danger to switchmen and others employed therein. Defendant was not bound to maintain its yard in the best or safest condition; it had much freedom in the selection of methods to drain its yard and in the choice of facilities and places for the use of its employees. Courts will not prescribe standards in respect of such matters or leave engineering questions such as are involved in the construction and maintenance of railroad yards and the drainage systems therein to the uncertain and varying judgment of juries. . . . The evidence is not sufficient to warrant a finding that defendant was guilty of any breach of duty owed to plaintiff in respect of the method employed or the condition of the drain at the time and place in question.”

The Supreme and Appellate Courts of Illinois follow the rules enunciated in the federal decisions. In Williams v. New York Cent. R. Co., 402 Ill. 494, the court expressly held that “in actions under the Federal Employers’ Liability Act the rule for measuring the sufficiency and amount of evidence necessary to justify the submission of the case to the jury is that established by the Supreme Court of the United States . . .” In the.early case of Mobile & O. R. Co. v. Vallowe, 214 Ill. 124, plaintiff, a brakeman employed by the railroad company, was injured by contact with a post which was one of a series located about one foot from the side of coal cars along the track. It was conceded that the posts were so near to the passing cars that a brakeman could not safely climb upon the side of a car while passing the posts, and that he would either have to get on the car at some other time or climb upon the end of the car. The only evidence of defendant’s witnesses on this phase of the case was that the coal chute and the posts supporting them were properly constructed and were as far from the track as it was possible to locate them consistent with the efficient operation of the coal chute. Plaintiff brought suit against the railroad and a coal-mining company, but the latter was dismissed, and the cause proceeded against the railroad alone. In discussing the question of negligence Mb. Justice Cartwright said that “the defendant was bound to exercise ordinary care to provide a reasonably safe place for plaintiff to do his work, but if reasonable care was exercised and there was no fault or negligence on the part of defendant in having the posts near the track it would not be liable merely because there was danger. If the defendant furnished as good and safe a place to work as reasonably could be furnished it would not be guilty of negligence. The operation of trains is attended with danger, and liability in such a case does not depend upon the presence of danger, but upon the existence of negligence on the part of the employer. (3 Elliott on Railroads, secs. 1268, 1308.) It was not sufficient to show danger on account of the location of the posts, but it was also necessary to show that danger arose from some fault or negligence of the defendant. The cases where railroad companies have been held liable for injuries resulting from posts or structures near the track have been where negligence was imputed to them. In Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 Ill. 272, the ground of liability was that the mail-catcher was negligently placed so near the track as to be a source of danger when it might have been more distant. In Chicago and Iowa Railroad Co. v. Russell, 91 Ill. 298, the telegraph pole was permitted, by the negligence of the railroad company, to be in dangerous proximity to the track. So, also, in Chicago and Alton Railroad Co. v. Howell, 208 Ill. 155, the liability depended upon the negligence of the defendant both in respect to the proximity and kind of switch stand. There was no evidence tending to show that the defendant was guilty of negligence in having the posts where they were, but the only evidence was that it was not guilty of any negligence in that respect.” The same reasoning and conclusion is justified upon the record in the case at bar. In the Vallowe case the court proceeded to state that defendant might be guilty of negligence in failing to warn plaintiff of the danger, as alleged in the declaration, but held that “if the plaintiff had, or by the exercise of reasonable care on his part would have had, knowledge of the situation of the posts and the danger, the defendant would not be liable to warn and instruct him against such danger, (Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329,) but if the danger which was known to the defendant was unknown to the plaintiff and would not be ascertained by him in the exercise of ordinary care and prudence, it became the duty of the defendant to give warning, and for a failure to do so it would be liable. (Chicago and Alton Railroad Co. v. Kerr, 148 Ill. 605.) If the danger was unknown to the plaintiff and was not obvious to one exercising ordinary care there might be a liability. On these questions the evidence was contradictory.”

In the instant proceeding there is no allegation whatever of lack of notice on the part of the railroad company to plaintiff. Moreover, it was plaintiff’s duty to familiarize himself with the premises. A special rule of the company, with which plaintiff admitted being cognizant, provided that “on the road, at stations, in yards, and on industrial tracks there are buildings, structures, station platforms, canopies, mail cranes . . . and other obstructions which owing to local conditions or requirements do not give clearance to men on top or side of ears or engines. Employees must familiarize themselves with these conditions in the district in which they are employed and where they exist must not extend any part of their bodies out from engines or cars or attempt to alight therefrom.” That plaintiff was familiar with the rule, and that xhe was aware of the close proximity of the platform to the switch track is indicated by the undisputed evidence of Thompson, a member of the switching crew, that plaintiff had told him to “ride high” on the cars because the platform would not clear. Upon this state of the record a failure to warn plaintiff was not an issue under the pleading; and the evidence definitely refutes it. Likewise, in Chicago Term. T. R. Co. v. Schiavone, 216 Ill. 275, a railroad was held not negligent when a section hand, sitting on a flat car with his feet hanging-over the edge, was brushed off when one of his feet came in contact with a cattle-guard fence. The fence was properly constructed, and the court held that it was necessary that it be constructed as it was in order to be effective. Some recent decisions by the Appellate Courts of this State, in which these rules have been considered and followed, are Geiken v. Chicago Great Western R. Co., 289 Ill. App. 45; Killian v. Pennsylvania R. Co., 336 Ill. App. 152 (Abst.); Kloetzer v. Louisville & N. R. Co., 341 Ill. App. 478 (Abst.); Payne v. Baltimore & Ohio R. Co., 351 Ill. App. 186, and Pitrowski v. New York, C. & St. L. R. Co., 1 Ill.App.2d 63. In the Payne case it was charged that defendant did not provide a safe place to work. After reviewing various Federal decisions, the court observed that “the cited cases . . . are conclusive that, in the absence of violation of a statute, negligence of defendant is essential to justify a plaintiff’s verdict in F. E. L. A. cases,” and held that it is" for the court to decide whether there is such evidence.

Plaintiff takes no exception to defendant’s statement of facts; rather, there is agreement as to what the facts surrounding plaintiff’s injuries were, and therefore nothing is left to inference or conjecture. The only question presented is if reasonable minds could differ as to whether these facts failed to show negligence on the part of defendant. In order to recover, a plaintiff charging negligence must adduce evidence in support of his charge and, as was said in Eckenrode v. Pennsylvania R. Co., 164 F.2d 996 (aff’d 335 U. S. 329): “Any Federal Judge who sees these railroad accident cases come in and go out of the courts must be troubled by the unsatisfactory social results obtained. Some claimants go out with very large verdicts. Others go out with nothing. Yet in each case the injury has come as part of the business of train movement and the disastrous consequences upon the victim or his family are equally heavy. But so long as the law is that the defendant must be negligent for the plaintiff to recover for his injuries it is our responsibility to apply the negligence test honestly and not to pretend that there is negligence when it does not exist.” The responsibility of the court in applying the negligence test honestly is aptly stated in Brady v. Southern Ry. Co., 320 U. S. 476, as follows: “Only by a uniform federal rule as to the necessary amount of evidence may litigants under the federal act receive similar treatment in all states. [Citing Supreme Court decisions.] . . . The weight of the evidence under the Employers’ Liability Act must be more than a scintilla before the case may be properly left to the discretion of the trier of fact — in this case, the jury. [Citing Supreme Court decisions.] When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict. By such direction of the trial the result is saved from the mischance of speculation over legally unfounded claims. [Citing Supreme Court decisions and other authority.]” This rule was likewise followed in Moore v. Chesapeake & O. R. Co., 340 U. S. 573, and Reynolds v. Atlantic Coast Line, 336 U. S. 207, in the first of which the direction of a verdict for failure to prove negligence was affirmed, and in the other a demurrer was sustained for failure of the complaint to state a cause of action as to negligence. In the Moore case the court said that “to sustain petitioner, one would have to infer from no evidence at all that the train stopped where and when it did for no purpose at all, contrary to all good railroading practice, prior to the time decedent fell, and then infer that decedent fell because the train stopped. This would be speculation run riot. Speculation cannot supply the place of proof.” The application of this rule by federal courts of review is illustrated in Kaminski v. Chicago River & Indiana R. Co., 200 F.2d 1, and Wetherbee v. Elgin, J. & E. Ry. Co., 204 F.2d 755, where the evidence of negligence was held insufficient for submission.

Plaintiff cites some forty Federal and Illinois cases purporting to hold that the issue of defendant’s negligence is pre-eminently one of fact. It is sound law that when there is any evidence of negligence, taken in its aspect most favorable to plaintiff, together with any reasonable inferences therefrom, the case should be submitted to the jury. But plaintiff in effect argues what Mr. Justice Major, in Griswold v. Gardner, 155 F.2d 333, so reluctantly concluded — that “any detailed review of the evidence in a case of this character for the purpose of determining the propriety of the trial court’s refusal to direct a verdict would be an idle and useless ceremony in the light of the recent decisions of the Supreme Court. This is so regardless of what we might think of the sufficiency of the evidence in this respect. The fact is, so we think, that the Supreme Court has in effect converted this negligence statute into a compensation law thereby making, for all practical purposes, a railroad an insurer of its employees.” But some three years later, the Supreme Court, in Wilkerson v. McCarthy, 336 U. S. 53, took occasion to specifically refer to Judge Major’s reading of its decisions and to repudiate such an interpretation. We have carefully studied plaintiff’s authorities; in substantially all of them there was submissible evidence of negligence. The discussion by plaintiff’s counsel presents a partial summary of the facts in a given case, followed by abstract propositions of law — all indisputable but here inapplicable. Some detailed consideration of plaintiff’s authorities will illustrate their divergence from the case at bar. In Kanawha Railway v. Kerse, 239 U. S. 576, the quotation which appears in plaintiff’s brief indicates that there was unquestioned negligence — not a determination that negligence was a question for the jury. In Choctaw, Oklahoma & C. R. Co. v. McDade, 191 U. S. 64, plaintiff’s intestate was struck and killed by the overhanging spout of a water tank adjacent to the track. After pointing out that the evidence showed that the spout hung at an angle from the side of the tank, the court observed that “a proper construction of the tank and appliances required the spout to hang vertically when not in use,” and the opinion specifically noted that the testimony was clear that if the tank had been properly constructed there would have been no necessity to bring the spout near enough to the cars to endanger brakemen stationed on them. Ellis v. Union Pacific R. Co., 329 U. S. 649, is cited for the proposition that a case for the jury exists even if the facts are without dispute; but an examination of the opinion discloses that there was a sharp conflict as to all the material facts, the court expressly stating that it was a case involving controverted facts. In Texas & P. R. Co. v. Swearingen, 196 U. S. 51, the court held that a railway company cannot be said, as a matter of law, to have performed its duty to use due care to provide a reasonably safe place for the use of switchmen in its employ when it has located scales where the tracks were only the standard distance apart, leaving a space of under two feet for the movements of a switchman — encumbered with a signal lantern— between the side of a freight car and the scale box, especially if the necessity of the situation did not require the scales to be constructed in that way. Under such facts the case was clearly one for the jury. In Stanczak v. Pennsylvania R. Co., 174 F.2d 43, the evidence disclosed that in addition to close clearance, the loading platform involved was old, had become worn, and had ragged and uneven edges, while the caboose in question had a worn and decayed platform. Aside from the question of clearance between the loading platform and the tracks, the court pointed out the additional relevant evidence of defects in the loading platform and the caboose platform, which made the question of negligence properly submissible to the jury. Furthermore, there was an issue of fact as to whether the accident was caused by plaintiff’s leaning out toward the platform or by some other cause — it was a death case with no eyewitnesses, and evidence as to' the exact cause was not available. In New York, C. & St. L. R. Co. v. Boulden, 63 F.2d 917, plaintiff was awarded damages for personal injuries sustained when he stepped from a boxcar to a station platform, his foot striking a projecting post at the edge of a cinder platform. He charged negligence, and the court held that whether under all the circumstances the projecting post constituted a risk normally incident to plaintiff’s employment was a question concerning which intelligent men might disagree, and the case was therefore properly submitted to the jury. Werner v. Illinois Cent. R. Co., 309 Ill. App. 292, was an action for injuries sustained by a brakeman whose leg collided with a dwarf signal located near the track, while he was riding the stirrup of a freight car. The court held that where there was no practical necessity for the maintenance of the signal at that point and where the evidence was undisputed that it could have been moved or lowered, the negligence of the defendant railroad in maintaining such a signal with only a ten-inch clearance was a question for the jury. A railroad owes a continuous duty to its employees to provide them with a reasonably safe place to work, but, in the language of the Werner opinion, “in fixing the scope of such duty, courts have kept in mind that the work of a railroad is attended with danger and can only be carried on by means that are hazardous and dangerous to employees who engage in such employment.” The court went on to point up the specific obligations of a railroad by saying: “It is well settled that this duty is violated by the company where structures, obstructions or appliances are permitted to exist or are maintained at or near the railroad tracks so as to endanger employees passing on cars in the course of their duties where no practical necessity exists for permitting such dangerous conditions to remain and where it only requires the exercise of due care to make such dangerous conditions safe.” (Emphasis supplied.) In discussing the authorities cited by defendant in that case, the court’s basis for distinction is noted in the opinion as follows: “These cases, for example, Chesapeake & O. Ry. Co. v. Leitch, 276 U. S. 429, are based on the ground that where railroads are compelled to adopt and maintain appliances and structures at or near their tracks because of practical necessity, it is unreasonable to throw the risk and danger incident to the use of such appliances and structures on the railroad.” Obviously the case at bar falls within the exception noted by the court in the Werner case, since the record here is devoid of any showing how the Nachman premises could be maintained in any other way; actually it would have been impractical to do anything else in view of the limitations of space involved.

Proof of negligence is sometimes clear and convincing; in instances where it is doubtful, it is clearly a question for the jury; but under the authorities, including the most recent pronouncements of the federal and state courts, negligence remains the test of liability. As demonstrated, there is no proof of negligence in the ease at bar. The only evidence adduced upon the trial refutes the argument that the loading platform on the Nachman premises could, in keeping with sound railroad practice, have been constructed in any other way or farther from the switch track; and in the absence of evidence the jury should not be permitted to speculate upon problems of railroad engineering practice. Inasmuch as plaintiff failed to introduce evidence of negligence under any of the charges contained in the complaint, the court should have entered judgment notwithstanding the verdict; accordingly, the judgment of the superior court is reversed and the cause remanded with directions to enter judgment in favor of defendant. Plaintiff’s cross-appeal is dismissed.

Judgment reversed and cause remanded with directions. Gross-appeal dismissed.

Niemeyer, P. J. and Burke, J., concur.


author: Mr. Presiding Justice Reynolds

text:
    Edward J. Benscoter et al., and Springfield Township, Plaintiffs-Appellees, v. City of Springfield, Illinois, Defendant-Appellant.
    Gen. No. 9,907.

      Opinion filed March 9, 1954.
    Rehearing denied April 5, 1954.
    Released for publication April 5, 1954.

      I. J. Feuer, City Attorney, and Hugh J. Graham, Jr., Special Assistant City Attorney, both of Springfield, for appellant.
    • Roscoe Bonjean, and Paul F. Wanless, both of Springfield, for appellees.
   Mr. Presiding Justice Reynolds

delivered the opinion of the court.

This is a suit in equity brought by a number of individual property-owner plaintiffs and by Springfield Township, a municipal corporation, against the City of Springfield, Illinois, a municipal corporation, for injunction against an alleged nuisance. The original complaint was against the defendant City of Springfield and the Springfield Sanitary District, a municipal corporation, which includes the territory of the City of Springfield. The nuisance complained of was that there were offensive odors and dangers to health, as to the individual plaintiffs and damages to the roads and bridges of the Springfield Township, caused by the overflow of the contents of the East Cook Street outlet sewer into a ditch near the homes of the individual plaintiffs.

The Springfield Sanitary District, defendant in the original complaint, filed its motion to dismiss on the ground that it had no jurisdiction over the said sewer and no lawful right to control the discharge of storm waters therefrom. This motion was allowed and thereafter, the plaintiffs voluntarily dismissed their suit against the Springfield Sanitary District, leaving only the City of Springfield as defendant. Thereafter, plaintiffs filed an amended complaint against the defendant City of Springfield.

The defendant City of Springfield filed an answer to the amended complaint, in which it set up that the Springfield Sanitary District is charged with the duty of providing sanitary treatment of the sewage discharged from the East Cook Street outlet. The answer denied any excessive volume of water. At the same time a motion to dismiss was filed by the defendant City of Springfield and a counterclaim was filed by the city against the Springfield Sanitary District, alleging that if there was a health nuisance, it was the duty of the Sanitary District to abate the same. The trial court denied a motion to dismiss the counterclaim but ordered that the trial of the issues raised by the counterclaim stand, pending determination of the issues between the original plaintiffs and the defendant City of Springfield. The matter was referred to a master in chancery for proofs and findings and the hearing was held before the master with the City of Springfield as the sole defendant. The master made his report and the trial court approving the report of the master, entered a decree overruling the exceptions to the master’s report, overruling the motions of the defendant City of Springfield as to the necessity of having the Sanitary District as a party defendant and enjoined the defendant city and its agents from0 continuing .the discharge of sewage from the outlet of the East Cook Street sewer into an open ditch near the homes of the individual plaintiffs and further provided that the order should take effect one year from the date of entry and that the defendant City of Springfield should take steps forthwith to -abate the nuisance. From that decree the defendant City of Springfield has appealed to this court.

The issues presented on this appeal are as follows: (a) That it is the sole duty of the Springfield Sanitary District to treat the sewage delivered to the point of interceptor as to render it harmless so far as health is concerned: (b) That upon failure to so do, the Springfield Sanitary District should be prosecuted under the law: (c) That the Springfield Sanitary District is an indispensable party in this suit: (d) That there is no evidence of overflow damage and that the health matter is the responsibility of the Sanitary District and not the City of Springfield.

There are some maps in the record but they do not aid this court except to fix the location. However, the evidence seems to bear out these facts: The main sewer of East Cook Street seems to be a combination storm water and sewage outlet, five feet in diameter. Originally the City of Springfield constructed a brick sewer six feet in diameter and this main sewer for East Cook Street extended to the east city limits. This six-foot sewer was constructed in 1886. In 1915 the City of Springfield constructed a brick sewer extension five feet in diameter, from the east city limits to a point 1,000 feet due east of the city limits. Both these main East Cook Street sewers, the one constructed in 1886 and the one in 1915 were combination storm and sewage outlets, that is, the sewer carried sewage in normal dry weather, and both sewage and rain water in rainy weather. This extension sewer outlet, five feet in diameter, had as its outlet °an open ditch, running in a generally southeasterly direction, through the center of the area in which most of the individual plaintiffs now reside. That with the growth of the area, in 1946, three additional sewers were constructed by the City of Springfield, all connected with the big or main outlet sewer of East Cook Street. This open ditch at the terminus of the East Cook Street sewer runs in a southeasterly direction about 1,500 feet to a pumping station of the Springfield Sanitary District. In 1925 and 1926, the Springfield Sanitary District constructed an intercepting two-foot sewer, connecting with the terminus of the East Cook Street five-foot sewer. At the terminus of the East Cook Street five-foot sewer, there is an iron weir, which in normal weather and under normal flow conditions, diverts the water flowing from the five-foot sewer into the two-foot sanitary sewer of the Springfield Sanitary District. Said weir or diverter normally takes care of the entire flow from the five-foot sewer but in time of rain, the discharge of the five-foot sewer is such that it rises over the weir and flows into the open ditch and thus causes the unhealthy condition and offensive odors.

The appeal does not raise any question as to the existence of a public nuisance. The appeal thus admits that an unwholesome, unsanitary and offensive condition exists and only raises the question as to whose duty and responsibility it is, to abate the nuisance. Thus, the question before this court on appeal may be narrowed to this point: Is it the duty and responsibility of the defendant City of Springfield to abate this nuisance ?

To arrive at the answer, we must first ascertain the jurisdiction and authorities of the two corporations. We must ascertain where the duty and responsibility for disposal of sewage ends for the City of Springfield and where the duty and responsibility of the Springfield Sanitary District begins.

To begin with, no municipal corporation can dump its sewage into a convenient place and put onto the recipient area the duty to dispose of or handle it. If the position of the City of Springfield is correctly understood, its duty ends at the terminus of the five-foot sewer and it then becomes the duty of the Springfield Sanitary District to take over from there. To support that contention, the defendant city cites paragraph 306 of chapter 42, Illinois Revised Statutes (1951) [Jones Ill. Stats. Ann. 122.008], That section reads: “The board of trustees of any sanitary district organized under this act shall have power to provide for the disposal of the sewage thereof including the sewage and drainage of any incorporated city, town or village within the boundaries of such district and to save and preserve the water supplied to the inhábitants of such district from contamination and for that purpose may construct and maintain an enclosed conduit or conduits, main pipe or pipes, wholly or partially submerged, buried or otherwise, and by means of pumps or otherwise cause such sewage to flow or to be forced through such conduit or conduits, pipe or pipes to and into any ditch or canal constructed and operated by any other sanitary district, after having first acquired the right so to do, or such board may provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more channels, drains, ditches and outlets, for carrying off and disposing of the drainage (including the sewage) of such district together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed, in a satisfactory manner, including pumps and pumping stations and the operation of the same. Such board may also treat and purify such sewage so that when the same shall flow into any lake or other watercourse, it will not injuriously contaminate the waters thereof, and may adopt any other feasible method to accomplish the object for which such sanitary district may be created ....

“Every such sanitary district shall proceed as rapidly as is reasonably possible to provide sewers and a plant or plants for the treatment and purification of its sewage, which plant or plants shall be of suitable kind and sufficient capacity to properly treat and purify such sewage so as to conduce to the preservation of the public health, comfort and convenience and to render said sewage harmless, insofar as is reasonably possible to animal, fish and plant life. . . .”

It will he noted by the reading of the above quoted section, that the Sanitary District is authorized to provide for the drainage of the district, “by laying out, establishing, constructing and maintaining one or more channels, drains, ditches and outlets, for carrying off and disposing of the drainage (including the sewage) of such district together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed, in a satisfactory manner

The defendant City of Springfield also cites paragraph 317a of chapter 42, Illinois Revised Statutes (1951) [Jones Ill. Stats. Ann. 122.022], which only deals with the methods or authority granted to finance such sanitary districts and sheds no light on the question before the court.

While the two paragraphs cited, namely paragraphs 306 and 317a of chapter 42, Illinois Revised Statutes (1951) [Ill. Rev. Stats. 1951, ch. 42, §§ 306, 317a; Jones Ill. Stats. Ann. 122.008,122.022], are in the main permissive, yet they do set forth the powers of the sanitary district to do certain things, namely the carrying off and disposing of the drainage (including the sewage) and the means of financing such work. The statute provides the machinery for the establishment of sanitary districts, and their financing, and we must of necessity look to the decisions of the courts to ascertain the duties imposed upon such districts to arrive at a decision in this case.

In the case of Bunge v. Downers Grove Sanitary District, 356 Ill. 531, cited by defendant City of Springfield, the court there said:- “The sanitary district was bound to provide adequate facilities for the proper treatment and purification of the sewage in accordance with the law. The infiltration of storm water and the inefficiency of the old disposal plant prevented the system from functioning properly. The proceedings for a new disposal plant of sufficient capacity and for storm-water drains to dispose of the infiltration were designed to correct the evils.

“The statute in express terms makes it the duty of the district to provide an adequate disposal plant. It is an adjunct to the sewers and drains, the same as the pumps and pumping stations mentioned in the act. They are all designed to accomplish the purpose for which the law was enacted, i. e., the protection of the public health and the prevention of the pollution of streams and waters. It can not be seriously contended that sewers constructed merely to carry off storm water from streets or private property, without regard to their effect upon a sanitary sewer system, are an adjunct to the sewer system, but when it appears that the infiltration of storm water prevents the functioning of a sanitary sewer system, it is the duty of the district, under the statute, to remedy the difficulty.”

A later case, People v. Downers Grove Sanitary District, 359 Ill. 601, presents a different question. There it was sought to order the sanitary district to put in repair, take charge of and maintain certain storm-water sewers and drains lying within and constructed by the Village of Downers Grove. The court in that case, distinguishing that case from the case of Bunge v. Downers Grove Sanitary District, 356 Ill. 531, said that the storm-water drains are no part of the sanitary-district system, and the maintenance of such storm-water drains is not within the powers conferred by the statute on the district.

Applying these two cases to the facts in this case, it would seem that the case of People v. Downers Grove Sanitary District, 359 Ill. 601, is not applicable, but that the case of Bunge v. Downers Grove Sanitary District, 356 Ill. 531 is the law governing this case. In this case, the terminus of the Bast Cook Street sewer was at a point about 1,000 feet east of the city limits. This sewer was a combination storm and sewage outlet. In dry weather, this sewer carries sewage only. In wet weather it carried both sewage and rain water. The sanitary district, in 1925, and 1926, apparently recognizing its duty to dispose of this sewage, diverted the flow from this sewer, from an open ditch into a two-foot sanitary district sewer, which connects with its disposal plant. This two-foot sewer is ample in dry weather, but totally inadequate in wet weather with the result that the excess water, mixed with sewage, overflows into the old ditch and causes the offensive odors and dangers to health complained of. It is true that the sanitary district has no control over the East Cook Street sewer, and no control over the discharge of the storm waters therefrom. But it would appear that its duty begins at the point where the City of Springfield discharges this sewage and storm water from the terminus of its East Cook Street sewer, and that from that point, it is the duty of the sanitary district to convey by means of ditches, drains, sewers or otherwise, this water mixed with sewage, to its disposal plant. While the discharge of the sewer is in time of wet weather, largely storm water, yet it also contains sewage, and thus mixed, is a health hazard and must be disposed of, so as to protect the health of the community. If the sewer that intercepts this discharge flow was large enough, no problem would exist. But the flow from a five-foot sewer cannot be accommodated through a two-foot sewer, and under the language of the Bunge case, it is the duty of the sanitary district to take steps to remedy the difficulty. The sewer carrying the sewage from the end of the East Cook Street sewer to the sanitary district disposal plant, is an adjunct to the system of the sanitary district. As it was said in the case of Judge v. Bergman, 258 Ill. 246: “It would not be possible to lay down, in advance, a hard and fast rule by which to determine what is and what is not an ‘adjunct’ or ‘addition,’ within the meaning of Section 7 of the Sanitary District Act.” Each case must be decided upon its own peculiar facts.

In the case of Bunge v. Downers Grove Sanitary District, 356 Ill. 531, which was a suit for attorney fees claimed to have been earned in special assessment proceedings, certain of which were for the construction of storm-water drainage sewers, the record showed that an infiltration of storm water into the sanitary sewers existed to such an extent as to affect the efficiency of the sewage-disposal plant, and the storm-water drains proposed to be constructed under the special assessment proceeding were for the purpose of preventing such infiltration. It was in that case also observed that: “It cannot be seriously contended that sewers constructed merely to carry off storm water from streets or private property, without regard to their effect upon a sanitary sewer system, are an adjunct to the sewer system, but when it. appears that the infiltration of storm water prevents the functioning of a sanitary sewer system, it is the duty of the district, under the statute, to remedy the difficulty.”

In considering the above cited eases and the statutes applicable, we must come to the conclusion that the duties and powers of a sanitary district are to receive, dispose and treat sewage, so that said sewage is rendered harmless. In doing so, the district must construct drains, disposal plants and such other facilities to receive, dispose and treat this sewage. It has the power and the duty to lay out, establish and maintain one or more channels, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed, in a satisfactory manner. In doing so, the sanitary district may even build additions or alterations to the storm-water drains of a city, village or town within its limits, provided such work is necessary to carry out the primary purpose of the district, namely, disposal of and rendering sewage harmless, insofar as is possible, to animal, fish and plant life.

In this case, in the light of the case of People v. Downers Grove Sanitary District, 359 Ill. 601, the sanitary district would be under no duty to repair, operate or maintain the sewers of the City of Springfield. That duty remains with the City of Springfield. But when the City of Springfield, as in this case, brings sewage or storm waters mixed with sewage, to the point where the sanitary district takes over, then it would seem to be the duty of the sanitary district to provide adequate facilities to take care of this sewage and storm waters, to the end that the health of the community be preserved. Thus the drain or sewer from the end of the East Cook Street sewer, to the disposal plant of the sanitary district would seem to be an adjunct of the sanitary district, and not of the City of Springfield and any duty of abating the nuisance must fall upon the sanitary district and not upon the city.

The Springfield Sanitary District is an indispensable party to this suit and the trial court was in error in entering its order that the trial of the counterclaim by the City of Springfield stand, pending determination between the original plaintiffs and the City of Springfield. The sanitary district should be brought in as a party and all action against the city should be stayed and if plaintiff does not see fit to follow this course within sixty days, the trial court is directed to dismiss the complaint for want of equity.

Reversed and remanded with directions.

Mr. Justice Hires took no part in the consideration or decision of this case.