author: Mb. Justice Dove

text:
    Fred Roth, Plaintiff-Appellee, v. Lake County Ready-Mix Company, Inc., Defendant-Appellant.
    Gen. No. 10,710.

      Opinion filed February 10, 1954.
    Beleased for publication March 1, 1954.
    Frank M. Daly, of Waukegan, for appellant; J. E. Baibstow, of Waukegan, of counsel.
    McCloby & Baibstow, of Waukegan, for appellee; Robert McCloby, and Richard R. Baibstow, both of Waukegan, of counsel.
   Mb. Justice Dove

delivered the opinion of the court.

Fred Roth brought this action to recover overtime compensation, an equal amount as liquidated damages, and attorney fees under the Fair Labor Standards Act as amended (29 U. S. C. A., par. 207). The issues made by the pleadings were submitted to the trial court for determination resulting in a judgment in favor of the plaintiff and against the defendant for $990.56 and costs. To reverse that judgment, defendant appeals.

The record discloses that appellant is engaged in the ready-mixed-concrete business having two plants, one on Skokie Highway in Lake county and another at Crystal Lake. At these plants the concrete is mixed, poured into trucks, and delivered to various jobs to be used in the construction of buildings, roads, and other purposes. At the peak of the season appellant employs between thirty and thirty-five persons as drivers of trucks and laborers in unloading sand and stone from cars and in operating conveyors which convey material to the mixing tower. On April 8, 1951, appellee entered the employment of appellant and continued to work for it until November 10, 1951. For the first eight weeks of his employment he received $1.85 per hour and the balance of the time appellant paid him $2.00 per hour. During this period of time appellant supplied its product of ready-mixed concrete to the E. A. Meyer Construction Company, which was engaged at that time in widening Skokie Highway near Waukegan and in erecting a concrete overpass over Route 176 on H. S. Route No. 12. The concrete for these purposes was delivered from both of appellant’s plants, and appellee worked at both of these places. The overpass was a part of U. S. Route No. 12, which is an interstate highway. During the period of his employment appellee worked more than 400 hours overtime and received therefor his regular pay of either $1.85 per hour or $2.00 per hour.

The complaint alleged the employment of the plaintiff and averred that during the entire period of employment the defendant was subject to the terms and provisions of the Fair Labor Standards Act, being Sec. 207 of Chapter 8 of Title 29 H. S. C. A., which provides, in part, that the plaintiff shall be entitled to receive compensation for his employment in excess of forty hours per week at the rate of not less than one and one-half the regular rate at which he was employed. The complaint then charged that the defendant failed and refused to comply with the provisions of the Federal Act and, in so doing, became liable to pay overtime compensation at the rate of one and one-half times the regular rate and, in addition, an equal amount as liquidated damages, as provided by said Act. The complaint then alleged that notwithstanding the violation of the Federal Act by the defendant and numerous demands by the plaintiff to the defendant to compensate the plaintiff as provided in the Act, the defendant failed or refused to pay the same or any part thereof to the damage of the plaintiff in the sum of $1,000.

By its answer, the defendant admitted the employment of the plaintiff as alleged but denied that it was subject to the terms of the Fair Labor Standards Act and alleged that the plaintiff agreed to accept straight time for all hours worked by him for the defendant and averred that it did not become liable to pay overtime compensation or liquidated damages and denied that it was guilty of any violation of any Federal Act. A reply to the defendant’s answer was filed by the plaintiff in which he averred that he did not enter into any contract or agreement with the defendant to waive the provisions of the statute and alleged that he did not agree to accept straight time for, all hours worked in the employ of the defendant.

The issues made by the pleadings were submitted to the court for determination and at the conclusion of the hearing the court found that the plaintiff was employed by the defendant and engaged in performing a part of the process of the production of ready-mixed concrete which was used in the construction of a bridge on U. S. Highway No. 12 and in widening Skokie Highway; that U. S. Highway No. 12 is an interstate highway carrying interstate traffic between Illinois and Wisconsin, and Skokie Highway is also an interstate highway running between the northern part of Illinois and Wisconsin carrying traffic between these two states; that the plaintiff, an employee of the defendant, was engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act and is entitled to receive one and one-half times his regular pay for each hour worked in excess of forty hours per week amounting to $395.28 and under the law, plaintiff was also entitled to recover, an additional amount of $395.28 as liquidated damages, together with attorney fees of $200, making a total of $990.56.

Appellant insists that the evidence in this case dis-. closes only two isolated sales of concrete, one from its Crystal Lake plant to the Meyer Construction Company for the bridge on U. S. Boute No. 12 and the other for widening Skokie Highway. Counsel argue that appellant’s business is not the production of goods for commerce within the meaning of the Federal Act but that it is engaged in the production of a concrete mix, which by its very nature, hardens within a short period of time and that its business is therefore essentially local and limited to a given area.

Alstate Construction Co. v. Durkin, 345 U. S. 13, 97 L. Ed. 745, 73 S. Ct. 565, was an action by the Wage and Hour Administrator to enjoin Alstate Construction Company from violating the record-keeping provisions and overtime pay required by the Fair Labor Standards Act. It appeared that the Construction Company was a Pennsylvania road contractor that reconstructs and repairs roads, railroads, parkways and like facilities, in the State of Pennsylvania. It also manufactures a bituminous concrete road-surfacing mixture called amesite made from materials either bought or quarried in Pennsylvania and applied largely to Pennsylvania roads either by the Construction Company’s employees or by its customers. The District Court granted the injunction and the Court of Appeals for the Third Circuit affirmed that decree and held that all of the Construction Company’s employees were covered by the Act. In affirming that judgment the Supreme Court of the Hnited States cited and commented upon Overstreet v. North Shore Corp., 318 U. S. 125, 87 L. Ed. 656, 63 S. Ct. 494 and Pedersen v. Fitzgerald Construction Co., 318 U. S. 740, 87 L. Ed. 1119, 63 S. Ct. 558, and, in the course of its opinion, said: “In the Overstreet and Pedersen cases, supra, we had to decide whether employees engaged in repairing interstate roads and railroads were ‘in commerce.’ In Overstreet we pointed out that interstate roads and railroads are indispensable ‘instrumentalities’ in the carriage of persons and goods that move in interstate commerce. We then held that because roads and railroads are in law and in fact integrated and indispensable parts of our system of commerce among the states, employees repairing them are ‘in commerce.’ Consequently he who serves interstate highways and railroads serves commerce. By the same token he who produces goods for indispensable and inseparable parts of commerce produces goods for commerce. We therefore conclude that Alstate’s off-the road employees were covered by the act because engaged in ‘production of goods for commerce.’ ”

In Thomas v. Hempt Bros., 345 U. S. 19, 97 L. Ed. 751, 73 S. Ct. 568 the plaintiff sued his employer in a Common Pleas Court in Pennsylvania to recover overtime wages, liquidated damages and counsel fees under the provisions of the Fair Labor Standards Act. The complaint alleged that the defendant operated a stone quarry in Pennsylvania and uses the stone in manufacturing cement mixtures and then hauls the mixtures to its customers, the Pennsylvania Turnpike, the Pennsylvania Railroad Company, an airport, an army depot and a navy depot all located in Pennsylvania ; that the concrete was processed for use by these customers for Pennsylvania projects; that the railroads used its concrete for the repair and maintenance of its roadbeds over which it operated interstate passenger and freight trains; that the Turnpike used its concrete for laying and building a highway over which flows commerce between the States; that the airport used concrete to build and erect landing fields to ac-

commodate the flow of airplanes in interstate commerce and that other purchasers used their concrete on projects which aided the flow of commerce. The trial court held that the complaint did not state a cause of action and rendered judgment for the defendant which judgment the Supreme Court of Pennsylvania affirmed. The Supreme Court of the United States reaffirmed its holding in Alstate Construction Co. v. Durkin, supra, reversed the judgment of the Supreme Court of Pennsylvania and held that the plaintiff was engaged in the .production of goods for commerce and covered by the Federal Act.,We are unable to distinguish the facts in the instant case from the facts in these Federal Cases and must conclude that the provisions of the Fair Labor Standards Act are applicable.

It is also insisted by appellant that the complaint will not support the judgment in this case. Counsel state that an employee, seeking to recover overtime wages under this Federal Act is required to allege (1) that he was engaged in the production of goods for interstate commerce or that his labor was concerned with some process or occupation necessary to the production thereof and (2) that he worked more than forty hours per week. Counsel state that in the instant case the complaint alleges no facts about any connection of the plaintiff or the defendant with interstate commerce nor is it averred that the plaintiff worked in excess of forty hours in any one week. Counsel cite and rely upon Schneider & Son v. Justice, 293 Ky. 126, 168 S.W.2d 591. That case was decided by the Court of Appeals of Kentucky on February 5, 1943, ten years before the Supreme Court of the United States decided the Alstate or Thomas cases hereinbefore referred to. In the Kentucky case the complaint did not aver that the business conducted by defendant was interstate business or that the production of any such enterprise was to be used in interstate commerce, nor did it aver that the particular kind or nature of employment that plaintiff performed was essential to or a part of any such interstate commerce. In the instant case the complaint alleged, among other things, the employment of the plaintiff by the defendant and averred that during the period of his employment defendant was subject to the provisions of the Fair Labor Standards Act, and his complaint recited the applicable provisions of that Act. It then charged that the defendant refused to comply with the provisions of the Act and thereby became liable to pay overtime compensation and liquidated damages as provided in the Act. Appellant never challenged the sufficiency of the allegations of the complaint by any motion or raised this question in the trial court but filed an answer denying the application of the provisions of the Federal Act and alleging that if its provisions were applicable, the parties had agreed to waive them. To this answer the plaintiff replied denying any agreement to waive the provisions of the Act.

Even before the adoption of the present Practice Act it was said in Lincoln Parh Coal Co. v. Wabash Ry. Co., 338 Ill. 82, at page 87: . . at the present time in this state many of the niceties and technicalities of ancient pleading have been abandoned and all that is now necessary in the statement of a plaintiff’s claim in a declaration is a clear and concise statement, couched in simple language, of sufficient ultimate facts to show a liability on the part of the defendant to the plaintiff.”

Section 33 of the present Civil Practice Act provides that all pleadings shall contain a plain and concise statement of the pleader’s cause of action, and Section 42 of the same Act states:

“No pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet.

“(3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.” (Ill. Rev. Stat. 1951, chap. 110, par. 157, sec. 33, par. 166, sec. 42 [Jones Ill. Stats. Ann. 104.033, 104.042].) The allegations of the instant complaint informed appellant of the nature of appellee’s claim and appellant treated it as sufficient and he cannot now be permitted to contend otherwise.

The judgment of the trial court is sustained by the evidence and the applicable law and that judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Justice Culbertson.

license: Public Domain

text:
    Alma Davis and Charles Davis, Plaintiffs-Appellees, v. Thomas Moore and Claire Moore, Defendants-Appellants.
    Term No. 53-O-7. (Abstract of Decision.)
    Thomas P. O’Donnell, for appellants;
    Weihl & Weihl, for appellees.
    Opinion filed October 31, 1953;
    rehearing denied February 23, 1954;
    released for publication February 26, 1954.
   Opinion by Not to be published in full.

Justice Culbertson.


author: Presiding Justice Feinberg.

text:
    ABC Loan Company of Illinois, Inc., Appellant, v. Thomas W. Campbell, Iona Campbell, and Mallie Loftin, Defendants. Mallie Loftin, Appellee.
    Gen. No. 46,114. (Abstract of Decision.)
    Gale L. Marcus, for appellant;
    Gale L. Marcus, and Guy E. Rodriek, of counsel;
    no appearance for appellee.
    Opinion filed January 20, 1954;
    released for publication February 25, 1954.
   Opinion by Not to be published in full.

Presiding Justice Feinberg.


author: Justice Kilby.

text:
    George T. Jurus and Rose Jurus, Appellants, v. Chicago Housing Authority, Appellee.
    Gen. No. 46,107. (Abstract of Decision.)
    Heber T. Dotson, for appellants;
    Robert A. Snow, and Irving Goodman, for appellee.
    Opinion filed January 20, 1954;
    rehearing denied February 25, 1954;
    released for publication February 25, 1954.
   Opinion by Not to be published in fuU.

Justice Kilby.


author: Justice Lewe.

text:
    The H. Piper Company, Appellee, v. Summit Fast Freight, Inc., Appellant.
    Gen. No. 46,196. (Abstract of Decision.)
    Halfpenny & Hahn, for appellant;
    James F. Flanagan, and Richard F. Hahn, of counsel;
    no appearance for appellee.
    Opinion filed January 20, 1954;
    released for publication February 25, 1954.
   Opinion by Not to be published in full.

Justice Lewe.


author: Justice Bardens.

text:
    Charles W. Loomis, Administrator of Estate of Penny Joe Loomis, Deceased, Plaintiff-Appellee, v. George Tadlock, Defendant-Appellant.
    Term No. 53-O-13. (Abstract of Decision.)

      Wham & Wham, for appellant;
    Crain & Hall, for appellee.
    Opinion filed January 26, 1954;
    rehearing denied February 23, 1954;
    released for publication February 26, 1954.
   Opinion by Not to be published in full.

Justice Bardens.


author: Justice Wheat.

text:
    Wareham’s Dairy, Inc., Plaintiff-Appellee, v. Wabash Railroad Company, Defendant-Appellant.
    Gen. No. 9,912. (Abstract of Decision.)
    John W. Coale, for appellant;
    Hershey & Bliss, for appellee.
    Opinion filed January 28, 1954;
    rehearing denied February 26, 1954;
    released for publication February 26, 1954.
   Opinion by Not to be published, in full.

Justice Wheat.


author: Mr. Justice Burke

text:
    Janet C. Kettlewell, Plaintiff-Appellee, v. The Prudential Insurance Company of America, Defendant-Appellant.
    Gen. No 46,034.
    Opinion filed November 30, 1953.
    Rehearing denied January 11, 1954.
    Released for publication March 5, 1954.
    Eckert, Peterson & Deeming, of Chicago, for appellant ; Owen Ball, William A. Cannon, and Bobert G. Schloerb, all of Chicago, of counsel.
    Finn, Hayes & Shehee, for appellee; Baymond F. Hayes, J. Glenn Shehee, and John M. Berent, all of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Janet C. Kettlewell sued the Prudential Insurance Company of America on a policy of insurance on the life of her husband, Norman L. Kettlewell, Jr. She averred the issuance of the policy on May 5, 1948, and the insured’s death on November 5, 1948. Defendant, answering, set out a provision of the policy that if the insured, whether sane or insane, shall within two years from the policy date die by suicide, defendant shall be liable only for the return of the amount of premiums actually paid, and alleged that insured’s death resulted from suicide within two years from the issuance of the policy and that the premiums received had been tendered to plaintiff and refused. Plaintiff’s reply denied that insured’s death was the result of suicide. The jury returned a verdict for the plaintiff for $8,118.75. Defendant’s motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial were overruled and judgment was entered on the verdict. This appeal followed.

Dr. Norman L. Kettlewell, a 29-year-old practicing dentist in Wilmette, Illinois, was killed on November 5, 1948, at about 8:30 a. m., when he was hit by a northbound Chicago & Northwestern Bailroad train at the Oakwood Avenue crossing in that village. He left plaintiff, his widow, and three children aged four, two and one. A fourth child was born dead about a month before insured’s death. He was actively engaged in the practice of his profession during the year preceding his death. During that year he conducted himself well about the house and treated his wife well. They had been married seven and one-half years and their married life was happy. On the morning of the occurrence he was happy, but tired. He and plaintiff had been up most of the night with the children because they all had colds. He and plaintiff got up about 7:15 a. m. She took care of the children. He made his breakfast and asked her if she would be ready to go out to a party that night. She said, “Yes,” and in answer to his inquiry stated that she had arranged for a sitter. He asked her whether she wanted cough syrup or cough drops, because the children were sick, and she replied “Cough syrup.” He then left the house and that was the last time she saw him alive. He had a 9 o’clock appointment that morning at his office, which was in a separate building on the same lot as their house. He did not have any unusual indebtedness and was able to provide for his family.

Oakwood Avenue runs east and west. Linden Avenue also runs east and west and is about 720 feet north of Oakwood Avenue. The right of way of the Milwaukee Division of the Northwestern Railroad, with one track for northbound traffic and one for southbound traffic, runs through Wilmette in a northerly and southerly direction. Oreen Bay Road is a four-lane north and south highway, running along the west side of the railroad tracks. Trains going north travel on the west track and trains going south travel on the east track. There is a tower where a towerman works, 360 feet north of the Oakwood Avenue crossing and about 12 to 14 feet west of the west rail. The tower is about the same distance south of the Linden Avenue crossing. There is an upstairs room in the tower with windows to the south, north and east, and as the towerman stands in the room he can see in these directions. The trains that pass the tower are either northbound or southbound.

The defendant offered the testimony of the only two eyewitnesses to the occurrence, William Heegeman, the gateman for the railroad, and Andrew Schaft, a truck driver. Heegeman, 68 years of age, had been working at the crossing since 1933. He puts the gates up and down when trains go through. At the point where Oak-wood Avenue crosses the railroad right of way, there is room for automobiles to pass. He said: “It is a narrow street but it is a two way drive.” There are gates at the crossings on each side of the tracks. One arm of the gate extends over the center of Oakwood Avenue west of the northbound track, and over the walk where pedestrians travel. This walk is immediately to the north of and adjoins the driveway across the tracks. On the morning of the occurrence train 364, southbound, approached the crossing, at which time the gates were down and the electric bell was ringing. Following train 364 and on the same track was a southbound troop train which stopped about 60 feet north of the Oakwood Avenue crossing, awaiting a signal to proceed south. The gates were still down and the electric bell was still ringing. After the troop train got the signal to go and cleared the crossing, Heegeman raised the gates to allow one eastbound and one westbound automobile to pass the Oakwood Avenue crossing. After these automobiles had cleared, he lowered the gates again and put on the electric bell. The reason for lowering the gates after the automobiles had cleared was because he got a signal from the annunciator in his tower room indicating that a northbound train was coming along. This signal comes from some place on the tracks about one and a half miles south of the Oak-wood Avenue crossing. The signal starts the annun-ciator bell ringing as soon as a train passes that point.

Heegeman stated that when he lowered the gates at this time he did not observe anyone at or near the Oak-wood Avenue gates. He then directed his attention to the gates at Linden Avenue, 360 feet north of the tower. He put these gates down and looked back to the Oak-wood Avenue gates, where he saw a man, the insured, standing on the dirt crosswalk just outside the gates immediately west of the gate and at the side toward Green Bay Road. He looked back toward the Linden Avenue crossing and then again to the Oakwood Avenue crossing and then saw this man standing just inside of the gate at the Oakwood Avenue crosswalk. The electric bell was on. When he saw this man standing inside of the gate he rang his tower bell, which is operated by hand and is about a foot in diameter, so that at this time both the electric bell and the tower bell were ringing. Dr. Kettlewell was standing looking to the south and there was nothing along the crossing or the railroad right of way to obscure a person’s vision. The witness said he could see the tracks up to Evanston, the municipality to the south. The west rail of the northbound track was approximately 8 or 9 feet from the arm of the gate that extended over the crosswalk, and it was between this arm and the west rail the man was standing and looking towards the south. The witness stated that when the northbound train was 60 or 70 feet south of the Oakwood Avenue crossing the man took three steps, turned his back to the northbound train, stood between the two rails and pulled his coat up over the back of his head, standing motionless on the track. The train was 10 or 15 feet away from Dr. Kettlewell when he turned and put his back toward it. He pulled his coat up toward the back of his head after he turned his back to the train. The train struck him and hurled him 50 or 60 feet to the west side of the track. The injuries incurred caused his death. Heegeman said that the train was “coming at probably 30, 35 miles an hour. That’s about the speed of that train. It doesn’t go much faster. It can’t.” To the question, “Are you positive it couldn’t have been going faster?” he answered, “No, sir.” The witness stated that it takes about a half a minute to raise the gates at the Oakwood and Linden Avenue crossings and another half a minute to lower both gates. He said, however, that these estimates “were just a guess.”

Andrew Schaft, the only other eyewitness, testified that at the time of the occurrence he was driving his truck south on Green Bay Road near the Oakwood Avenue crossing and happened at the time to look toward the northbound track and saw a man standing between the rails of the northbound track opposite Green Bay Road. The man was standing still between the rails with his back toward the south. The witness stated he saw the man standing there between the rails a few seconds or so prior to the impact. He saw the train hit the man, carry him 50 or 60 feet, when he rolled off to the side and onto the ground. He noticed that the gates were down; that the visibility was good at the time; that it was not raining; and that the streets were dry. Joseph Radke testified that at the time of the occurrence he was working at the gas station at the northwest corner of Oakwood Avenue and Green Bay Road. His attention was attracted to the intense loud ringing of the tower bell by the gateman, as well as by the ringing of the electric bell. He looked up to see why the gateman was ringing the tower bell as much as he was and at that time saw a body roll over to the west of the northbound track. He did not see the train that struck Dr. Kettlewell prior to the impact.

Frank Vantill, called by plaintiff, testified that he was the engineer on the northbound train which struck Dr. Kettlewell. He looked at his speed recorder when he passed the Wilmette tower and he was going between 50 and 55 miles an hour at or near the Oakwood Avenue crossing. When he was south of that intersection he had occasion to look to the north over the tracks and did not see anybody. That morning he sat on the right hand side of the engine in the engineer’s seat. He could see straight ahead and to the right. He did not know the train hit a man until he arrived at Kenosha, Wisconsin. He indicated on photographs of the engine by an “x” where he found the rim of glasses and by “xx” where he found a cluster of hair. He said it was dry that morning and that visibility was good. No whistle was sounded from his engine because that was a restricted area. The engine bell was ringing. Kenneth McLean, called by plaintiff, testified that he was the fireman on the train. He was looking ahead when the train was possibly a city block or a block and a half south of the Oakwood Avenue crossing and saw no one. His best judgment was that the train was going about 50 miles an hour. He was working on the left side of the engine cab. When the train was a block or a block and a half south of the Oakwood Avenue crossing his attention was diverted to check the water. He first knew that the train had struck a man when it reached Kenosha. Dr. Thomas A. Carter, called by plaintiff, was the Coroner’s physician who examined Dr. Kettlewell’s body. He testified to the injuries causing the death and further stated in answer to a hypothetical question that the injuries were received by decedent while he was standing on his feet.

Defendant maintains that the unimpeached testimony of the eyewitnesses required the court to direct a verdict for it. In support of the judgment plaintiff points out that a witness may be contradicted or impeached by what he states as well as by adverse testimony. Kennedy v. Modern Woodmen of America, 243 Ill. 560, 569. She points out what she terms contradictions and impeachments of Heegeman’s testimony. She also discusses the testimony of Schaft, the other eyewitness. Defendant’s motion for a directed verdict presented a question of law as to whether, when all the evidence was considered, together with all reasonable inferences from it in its most favorable aspect to the plaintiff, there was a failure to sustain plaintiff’s cause of action. Neither the trial court nor this court is permitted to weigh the evidence to determine where the preponderance lies. From the undisputed evidence adduced by the eyewitnesses we are satisfied that the only reasonable conclusion is that Dr. Kettlewell’s death was suicidal and not accidental. None of the testimony offered on behalf of the plaintiff throws any light upon the factual situation. The eyewitnesses were disinterested; never knew the insured; fully observed the occurrence; and their testimony stands unimpeached. The absence of proof of motive does not preclude a finding of suicide. It cannot be denied that successful men commit suicide, however unlikely it may appear to their most intimate friends that any such act was contemplated. One person may leave a note indicating such intent; another may not do so. We may never know the reason why the person committed suicide, nevertheless, we are bound to accept that such was the fact where his conduct and actions immediately preceding the tragedy, indicating suicide, have been observed.

Heegeman was in an advantageous position to see and observe Dr. Kettlewell’s movements preceding his death. It does not appear that the insured became confused or that he was attempting to get across the track ahead of the approaching train. He saw the insured standing just outside the west gate on the north side of Oakwood Avenue. At that time the gate was down over the north crosswalk and also over the roadway. The electric bell on the south side of Oakwood Avenue was ringing at the time Heegeman first observed the insured and prior thereto and after the insured was seen inside the gate. After seeing Dr. Kettlewell inside the gate Heegeman started operating a hand bell about a foot in diameter. After the insured was standing inside the gate Heegeman observed him looking to the south, from which direction the northbound train was approaching. There was nothing to obscure insured’s vision. Heegeman said the property was clear and that he could see the tracks up to Evanston. He then saw Dr. Kettlewell take three steps, which put him in the center between the two rails of the northbound track, after which he turned his back to the oncoming train, pulled his coat up over the back of his head and stood motionless. There is no testimony that insured’s vision might have been defective or obscured, that he made any effort to cross the northbound track, or that he stumbled. Assured was familiar with the location as he lived in the vicinity.

Heegeman’s testimony as to insured standing motionless with his back to the oncoming train is corroborated by Schaft. From the seat of his truck he saw the man standing in the center of the tracks a few seconds prior to the impact, with his back to the south. The insured was not moving, hut was standing still at the time. This witness also testified that the visibility was good and that from his position on the seat of his truck, which was higher than a passenger car, he was able to see the occurrence. Radke who was working at the gas station on the northwest corner of Oakwood Avenue and Green Bay Bead, did not witness the impact, but his attention was attracted by the loud ringing of the bell by the gateman. He testified that the tower bell and the electric bells were ringing and that when he looked up he saw a body roll over to the west of the northbound track. We do not find any contradictions or impeachments in the testimony of Heegeman or Schaft. Love of life raises a presumption in the absence of evidence to the contrary that one does not intentionally take his own life, but this presumption is rebuttable and must yield to physical facts clearly inconsistent with it. A verdict cannot rest on mere conjecture or speculation. Everything that Dr. Kettlewell did prior to the impact indicated that he saw the oncoming train. Upon the uncontroverted testimony and circumstances appearing in evidence, the only reasonable conclusion is that Dr. Kettlewell deliberately stood in the track with knowledge of the oncoming train with the intention of suicide. Therefore, the judgment of the superior court of Cook county is reversed and the cause is remanded with directions to enter judgment notwithstanding the verdict in favor of defendant and against plaintiff.

Judgment reversed and cause remanded with directions.

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


text:
    In the Matter of Estate of Joseph F. Richmond, Deceased, Thomas D. Nash, Administrator of Estate of Isaak Roichman, Deceased, Appellee, v. Mercantile National Bank of Chicago, Executor of Estate of Joseph F. Richmond, Deceased, Appellant.
    Gen. No. 46,080.

      Opinion filed November 30, 1953.
    Released for publication March 5, 1954.
    Wallace I. Kargman, for appellant; Norman H. Arons, of Chicago, of counsel.
    Clark & Fisher, and Black & Beermann, all of Chicago, for appellee; Benjamin H. Black, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On May 29, 1934, Joseph F. Richmond of Chicago executed his last will and testament. He died on February 24,1950. On April 12,1950, the will was proven and letters testamentary issued to the Mercantile National Bank of Chicago, as executor. On January 18, 1951, a complaint in chancery was filed in the circuit court of Cook county for the purpose of construing the will, and on May 18, 1951, a decree was entered construing the will. On September 19, 1951, the executor filed its second and final report and account in the probate court. Objections to the final report and account were filed by Hanna S. Roichman by her purported attorney in fact, and by Thomas D. Nash, as administrator of the Estate of Isaak Roichman, deceased. The objections were overruled. The administrator of the Estate of Isaak Roichman, deceased, appealed to the circuit court. That court found that upon the death of the testator, the beneficial interest of Isaak Roichman vested in him, Roichman; that he, Roichman, died on June 7, 1950, subsequent to the death of the testator and before the distribution of the testator’s estate, and ordered that the executor pay the distributive share of Isaak Roichman to Nash, as administrator of his estate, instead of to the trustees under the will. The executor appealed from that order.

The first paragraph of the will provides for the payment of all debts and funeral expenses. The second paragraph provides that after payment of all debts and taxes the estate be divided into 12 equal shares. Sub-paragraphs 1 to 3, inclusive, and 5 to 7, inclusive, of the second paragraph bequeathed a M.2th share of all property, including any lapsed legacy, to each of the following:

Eleanor Richmond, sister-in-law
Helen Richmond, niece
Ruth Richmond, niece
Sholom Mintz, nephew
Mrs. Sholom Sarah Mintz, niece
Abe Shoichit, cousin

For convenience, these 6 persons are sometimes called “resident legatees.”

The Third paragraph of the will reads:

“It being my desire to apportion the remaining six-twelfths (%2ths) of my estate among certain of my relations making their place of abode in Russia or foreign countries and considering the economic conditions now appearing to exist in said foreign countries and considering the uncertainty of the conveyance of moneys and securities to persons located and situated in such foreign countries, I give, devise and bequeath unto my beloved niece, Mrs. Sholom Sarah Mintz, of 1161 Shakespeare Avenue, The Bronx, New York, and Mrs. Eleanor Richmond, of 168 Lexington Avenue, Port Richmond, Staten Island, New York, as Trustees and to their successor in trust, the remaining six-twelfths (%2ths) of my property and estate upon and subject to the following uses, purposes and trusts, that is to say:

“1. If my sister, Chana Backman of Krasiloff, Russia, is living at the time of my death, it is my wish that she be provided with two-twelfths (%2ths) of all my property, real, personal or mixed of whatsoever character or wheresoever situate of which I may die seized or possessed or which I may own or have any interest in at the time of my death, including any lapsed legacy or legacies as devised hereunder and it is my desire that the aforesaid Trustees, Mrs. Sholom Sarah Mintz and Mrs. Eleanor Richmond, shall make distribution of the aforesaid two-twelfths (%2ths) of my estate as herein set forth, to my beloved sister, Chana Backman, if and when they, the said Trustees, see fit to do; that the said Trustees shall have full discretionary power in and about the distribution of these shares, Provided, However, that in the event my beloved sister Chana Backman shall come to the United States of America, then in that event distribution shall be made to her immediately upon her request. It is my further desire that in the event that my beloved sister, Chana Backman, shall not survive me, then, one-half (Yz) of her share of two-twelfths (%2ths) in my estate, shall be divided equally among Mrs. Eleanor Richmond, Ruth Richmond, Helen Richmond, Mr. Sholom Mintz and Mrs. Sholom Sarah Mintz, being the same persons hereinabove set forth.”

Subparagraphs 2 and 3 of the third paragraph of the will are word for word the same as subparagraph 1 thereof, except that the sister of the testator, Malka Lachman of Proskuroff, Russia, and his brother, Isaak Roichman of Odessa, Russia, are each named beneficiaries of a %2ths interest respectively under the trust in like manner as Ghana Backman. Subparagraph 7 of the third paragraph reads:

“In making distribution of the principal or corpus of the trust estate or any part thereof, the Trustees may, in their uncontrolled discretion, make distribution to all or any of the beneficiaries hereunder in money or property of the trust estate or both, and the power of the Trustees as to what shall constitute a proper division among them and every selection and valuation shall be binding and conclusive upon all beneficiaries hereunder, Subject However, to the provisions set forth herein as to the coming to the United States of America of the beneficiaries under this trust.”

The pleadings in the equity case in the circuit court do not appear in the record. The decree shows that the complaint was filed by Olga Spektor, a niece of Joseph F. Richmond, deceased, by “her duly substituted attorney in fact,” against the trustees, the executor, Malka Lachman, Isaak Roichman, Ruth Richmond, Helen Richmond Gescheidt, Abe Shoichit and Sholom Mintz. The decree recites that the plaintiff appeared by her attorneys and the defendants by their attorney; that the cause came on to be heard upon the complaint and the answers of the defendants and upon the briefs submitted by the parties, “it having been agreed that no argument or evidence shall be taken or heard by the court, and the court having considered the said briefs and being fully advised in the premises” finds that the court has jurisdiction of all the parties and of the subject matter; that all the necessary and proper parties to the cause have been made parties, either as plaintiffs or defendants; finds the facts about the making of the will, the death of Joseph F. Richmond, the proving of the will and the appointment of the executor; finds that upon the death of the decedent he left him surviving as his only heirs at law and next of kin the four nieces, including Olga Spektor, Abe Shoichit, a cousin, Malka Lachman, a sister, and Isaak Roichman, his brother. The decree recites that plaintiff claims that it is evident from the language used in the will that the devise to the trustees to distribute is indefinite and without limitation as to the time and that the trusts created by the will are also indefinite as to the time of duration and termination; that therefore the devise to the trustees is void; and that plaintiff further claims that upon the death of the testator his gifts did not immediately vest in the beneficiaries with the right only of enjoyment postponed, but the gifts were contingent upon a condition precedent recited in the will which may never occur, rendering the gifts void.

The decree further recites that on behalf of the defendants it is claimed that the equitable interests created under the will vested immediately in the legatees and only the enjoyment thereof is postponed; that therefore the gifts created under the will are valid; that reasonable doubt exists as to the meaning of the will of Joseph F. Richmond, deceased, and as to the effect thereof with respect to the meaning of Paragraph Third, subparagraphs 1, 2 and 3; that it is therefore necessary that the court construe the will and determine its effect; that the court finds that the “true intent and purpose of the testator, Joseph F. Richmond, deceased, in and by his last will and testament, was and the proper construction of said will is as follows: (a) That the devise in said Paragraph Third, subpara-graphs 1, 2 and 3 to the trustees to distribute is not indefinite and is not without limitation as to time and that said trusts are not without limitation as to the time of duration and termination; that therefore the gifts created in said Paragraph Third, subparagraphs 1, 2 and 3 do not violate any rules of law under the statutes of the State of Illinois in such case made and provided and are therefore valid, (b) That upon the death of the said decedent, Joseph F. Richmond, his gifts under said will vested Immediately in the legatees named in said will with only the right of enjoyment postponed; that said gifts were not contingent upon a condition precedent recited in the will.” The court retained jurisdiction for the purpose of determining attorneys’ fees. On September 19, 1951, subsequent to the entry of the decree in the circuit court, the executor filed its second and final report and account in the probate court. To each of the resident legatees there was distributed %2th of the residuary estate and a share of the lapsed legacy, and to the trustees there was distributed %2ths of the residuary estate and pursuant to subparagraph 1 of Paragraph Third of the will, the lapsed legacy of Chana Backman, consisting of %2ths of the residuary estate left in trust, was divided in half, with one-half being distributed equally between the resident legatees, excluding Abe Shoichit, and the remaining half being distributed to the trustees. Objections to the final report and account were filed by Hanna S. Roichman by her purported attorney in fact, alleging that Isaak Roichman died subsequent to the testator leaving him surviving Hanna S. Roichman, his widow, as his only heir and next of kin, and that since the gift of Isaak Roichman was vested upon the death of the testator pursuant to said decree, she was entitled to %2ths of the estate, together with the distributive share of the lapsed legacy. Objections were subsequently filed by Thomas D. Nash alleging that he was the duly appointed administrator of the estate of Isaak Roichman, deceased, who died on June 7, 1950, subsequent to the death of the testator; and on the basis of the decree prayed for an order declaring the trust created for Isaak Roichman terminated upon his death subsequent to that of the testator. The administrator prayed that the corpus of the trust be paid to him by the executor. The probate court approved the final report and account and overruled the objections of all parties. The administrator appealed to the circuit court. There the administrator introduced certified copies of the will of Joseph F. Richmond, deceased, the decree in the circuit court and the letters of administration. The letters recite that Isaak Roichman died on June 7, 1950.

The decree construing the will was entered on May 18,1951, more than a year after the issuance of letters testamentary. The Probate Act provides that the executor shall pay from the estate inventoried within nine months after the issuance of letters all claims entitled to be paid therefrom, and may enforce the settlement of estates by ordering the executor to distribute the estate to the persons entitled thereto. At the time the decree was entered, more than nine months had elapsed since the issuance of the letters. There was more than sufficient to pay the debts, costs and fees, and it was the duty of the executor to distribute the estate. It appears that a doubt arose as to whether the trust provisions of the will violated the rule against perpetuities or the provisions of any statute. As a consequence a complaint in chancery was filed. All necessary parties were joined. The decree recites that the cause came on to be heard upon the complaint and the answers thereto of the defendants. Isaak Roichman was a defendant and presumably an answer was filed for him. There is a presumption that an attorney at law as an officer of the court, has authority to act for a client whom he professes to represent. 7 C. J. S. Attorney and Client, Sec. 73, page 875. Death of the client terminates the relation of attorney and client and the attorney’s authority to act by virtue thereof, unless the power of the attorney is coupled with an interest or the employment by its terms is to extend beyond the happening of such event. 7 C. J. S. Sec. 113, page 945. The third paragraph of the decree found that the decedent left him surviving the persons listed as his only heirs at law and next of kin. Among these appears Isaak Roichman. The name of Chana Backman is not listed as among the heirs. There is no statement in the decree that she died. We assume from the briefs that this was the fact. The decree recites the contentions of the plaintiff and defendants as to the construction to be placed on the trust provisions of the will. The decree recognized the distinction between beneficiaries and legatees and after declaring that the trusts do not violate any rules of law or any statute of the State, found that upon the death of Joseph F. Richmond “his gifts under said will vested immediately in the legatees named in said will with only the right of enjoyment postponed; that said gifts were not contingent upon a condition precedent recited in said will.” The decree was introduced by the administrator. On its face it shows that the court had jurisdiction of the subject matter and of the parties. The decree could not be binding upon Isaak Roichman or any persons claiming by, through or under him unless he were living at the time of its entry. The administrator, having introduced the decree, is not in a position to impeach it or any of its findings. Isaak Roichman was a necessary party in the case to construe the will. If there was a mistake of fact in the chancery case, that should be corrected in an appropriate proceeding. There was no appeal from the decree and we feel bound to recognize it as valid and binding upon the parties and their privies. Neither the parties nor the decree contemplated that Isaak Boichman died subsequent to the death of the testator. The decree declared the validity of the trust provisions of the will. If the chancellor were informed prior to the entry of the decree that Isaak Boichman died subsequent to the death of the testator, there can be little doubt that, aided by the attorneys and appropriate pleadings, he would have construed the will in the light of the changed situation. The decree did not envision a situation that might arise on the death of Isaak Boichman or his surviving sister, Malka Lachman. There was no contention before the chancellor that the bequest should not go to the trustees. In our opinion the order of the probate court overruling the administrator’s objections was right. On the instant appeal we are not called upon and do not decide what disposition the trustees shall make of the bequest to them for the benefit of Isaak Boichman, should it be established that he died. That question can be determined in an appropriate proceeding.

For the reasons stated the order of the circuit court of Cook county entered on November 18, 1952, is reversed and the cause remanded to that court with directions to overrule the objections to the final report and account.

Order reversed and cause remanded with directions.

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


author: Mr. Justice Friend

text:
    Marvin Ricklefs, a Minor, by Edna Ricklefs, his Mother and Next Friend, Appellee, v. Chicago, Milwaukee, St. Paul and Pacific Railway Company et al., Defendants. Commonwealth Edison Company, and City of Chicago, Appellants.
    Gen. No. 45,932.

      Opinion filed November 30, 1953.
    Released for publication March 5, 1954.
    Isham, Lincoln & Beale, and Griffen, Stout & Baird, all of Chicago, for certain appellant; James P. Dillie, Glenn E. Baird, and Arthur C. Gehr, all of Chicago, of counsel.
    John J. Mortimer, Corporation Counsel for City of Chicago, for certain other appellant; L. Louis Karton, Head of Appeals and Review Division, and Harry H. Pollack, Assistant Corporation Counsel, both of Chicago, of counsel.
    Joseph Barbera, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Marvin Ricklefs, a minor, by Ms mother and next friend, brought suit to recover damages from Chicago, Milwaukee, St. Paul and Pacific Railway Company, City of Chicago, Commonwealth Edison Company, William Marten and Florence Klipfel for personal injuries sustained by plaintiff as the result of the alleged negligence of defendants. At the close of plaintiff’s case the court directed a verdict of not guilty for the railroad company and entered judgment on the verdict. At the conclusion of the trial there was a verdict finding the individual defendants William Marten and Florence Klipfel not guilty, the corporate defendants City of Chicago and Commonwealth Edison Company guilty, and assessing plaintiff’s damages in the amount of $70,000 and costs, upon which the judgment was entered from which this appeal was taken.

The accident occurred on the afternoon of Sunday, September 26, 1948. Plaintiff and two companions, Jerome Reinke and Lawrence Pritchett, left their homes on bicycles in Norwood Park and rode down Austin avenue some 44 blocks to the railroad viaduct at Austin avenue and Cortland street. Upon arriving at the north end of the viaduct they rode along the west sidewalk the entire length of the underpass beneath the viaduct to the south end, then turned around and started back, heading north on the west sidewalk. Upon reaching the middle of the underpass they saw a stairway on the east side thereof and decided to cross the street to investigate it, parking their bicycles on the west sidewalk. They then crossed the street in the middle of the underpass and went up the stairway, remaining at the top of the stairway for a few minutes, and then returned down the stairs. When they reached the east sidewalk, Jerome ran across the street in the middle of the underpass to the parked bicycles. Before he stepped off the curb on the east side, he looked both ways and saw two cars approaching from opposite directions, approximately half a block away from either entrance.

As plaintiff started to cross, he saw three cars, one of which was about one-fourth of a block from the south entrance and was heading north; behind this car was another automobile traveling in the same direction; the third car was about a quarter of a block north of the underpass, heading south. After seeing these cars, and when Jerome was ten to twelve feet in front of him in the middle of the street, plaintiff started to cross at a slow trot. When he reached the middle of the street he stopped and stood perfectly still between the north and southbound lanes; he made no attempt to return to the east curb. While he stood in the center of the street waiting for an opportunity to cross, he was struck by the first car heading north which he had seen while on the sidewalk. After leaving the east sidewalk, he did not look at or see that car again. There were no noises or other distractions to prevent his observing the car that struck him.

Lawrence stepped to the east curb from the east sidewalk when plaintiff started to cross the street. He looked and saw two cars approaching from the south, the first of the two cars being at about the south entrance of the underpass, and a third car approaching from the north at about the same distance. He was watching plaintiff all the time and saw him struck by the front bumper of the first car approaching from the south and thrown about 20 feet north, landing on his back one or two feet from the east curb, with his head toward the north. After hitting plaintiff the driver of the car applied his brakes and stopped about 20 feet beyond the point of impact; he got out of his car, picked plaintiff up, put him in the car and drove him to the hospital. Upon arriving there he noticed that the right front grille of the car was damaged, but the left side of the car was not damaged in any way.

William Marten was driving the car that struck plaintiff; it was owned by Florence Klipfel, who was sitting in the front seat. When they entered the underpass the car was in the inner northbound lane traveling at a speed of 20 to 25 miles per hour. Just before Marten entered the underpass he was more or less blinded by the sun, and he testified that he immediately turned on his city driving lights. The testimony of the boys conflicts with that of the individual defendants in this respect, the boys stating that they did not remember seeing any cars with headlights on. Neither of the individual defendants saw plaintiff until after the collision, and after they had stopped and left the car to investigate the cause of the impact which they had felt. They testified that they could see very little in the underpass ; with city driving lights on, Marten stated that he could see about 50 feet ahead of the car, but very little to either side of the path in which the car was traveling. Both individual defendants testified that the car was at all times traveling in a straight direction in the inner northbound lane and that it did not swerve after the collision or as it came to a stop.

With respect to the construction and lighting of the viaduct, it appears that in July 1938 the city and the railroad company entered into a contract for building the viaduct and underpass at the intersection of the railroad’s right-of-way and Austin avenue. By the terms of the agreement the railroad granted the city an easement across its right-of-way and divided the cost of construction and responsibility for the project. Among other things, the city agreed to furnish at its own cost the labor and materials required for installation of the street lighting in the viaduct and underpass and upon completion of the viaduct to maintain and operate at its own cost the street and viaduct lighting system in the underpass. The underpass is 658 feet long, the street 44 feet wide from curb to curb, and the rows of concrete columns supporting the overhead structure are set back one foot from the curbs on each side of the street. Bach column is four feet wide and two feet thick. There is a sidewalk eight feet wide on each side of the street which is separated from the roadway by a row of columns. Both sidewalks run the entire length of the underpass. There is a light vent approximately in the middle of the underpass that is ten feet wide and crosses the entire width of the overhead structure; this vent is protected by a metal grille so that persons working on the railroad right-of-way will not fall through the opening. There is a stairway approximately in the middle of the underpass located east of the east sidewalk and leading to the railroad right-of-way.

The street and sidewalk lighting system consists of 68 lighting fixtures embedded into the concrete structure about nine feet above the sidewalks, so that almost all the light is reflected onto the surface of the sidewalks. The sidewalk lights are spaced about 19% feet apart, and each fixture provides the lighting of a sidewalk area of approximately 155 square feet. There are 104 lighting fixtures recessed into the concrete structure between the columns on both sides of the street about eleven feet from the surface. These fixtures are embedded so that the face of the fixture is almost flush with the side of the concrete wall, and little, if any, of the light from these fixtures is directed down to the surface of the roadway. The roadway fixtures are spaced about thirteen feet apart so that each one covers an area of the roadway of approximately 291 square feet, or almost twice the area covered by each sidewalk lighting fixture. Two time switches are installed at the south end of the viaduct at the east and west sides of the street. The time switch on the west side controlled every other light fixture over the west sidewalk and on the west side of the roadway; similarly, the time switch on the east side controlled every other fight fixture over the east sidewalk and on the east side of the roadway.

In 1927 the city and Commonwealth Edison Company entered into a basic contract providing for the fighting of the city’s streets and subways, including viaducts or underpasses, which was in effect on the day of the accident but was subsequently canceled in 1950; the duties of patrolling and inspecting the fights was taken over by the city when the basic contract was canceled. The pertinent portion of this contract provides that the company is to furnish the city electric service for city uses as specified and at rates set out in the agreement. The basic contract was supplemented by a letter from the city to Edison dated October 18, 1938, requesting the company to furnish fighting service for the underpass in question and authorizing the charge at the regular subway rates. This letter also provides that sixty-watt lamps should be used in all the fighting fixtures and that eighty-six, or one-half, of the lamps should be operated on a dusk-to-daylight schedule, and the other half on a twenty-four hour schedule. The company commenced the service on January 4, 1940. Further supplementing the basic contract, the city prepared and sent to the company a schedule for control of the time switches so that every other fight over the sidewalks, and on both sides of the roadway would be turned on shortly after sunset and turned off shortly before sunrise each day of the year.

Plaintiff takes the position that both the city and the Edison Company owed a duty to all persons rightfully using the highway to exercise reasonable care in keeping and maintaining it in a safe condition for use as a public street. It is urged that since the city constructed the underpass, thereby, as plaintiff puts it, creating “the hazard of darkness in the street which had not theretofore existed,” and undertook to light it, it thereby assumed the duty to adequately light the underpass for all persons rightfully using the street and “for all purposes,” regardless of whether they were crossing or traveling thereon; and that since the Commonwealth Edison Company assumed the city’s legal obligation in this respect, it likewise owed a duty to all persons using the street within the underpass to carry out this duty with reasonable care and diligence.

Several witnesses, some employed by the Edison Company and others by the City of Chicago, explained the procedure adopted by these two corporations during the period of operation of the contract. The lighting contract did not specify the frequency of the patrols that Edison was required to make under the agreement, but the company scheduled itself to patrol each viaduct and underpass every night of the year. Daily inspection included reporting burned-out lights and immediate replacement of light bulbs in the center post lamps where there was a column in the center of the street; time switches were set every two weeks in accordance with the dusk-to-daylight schedule furnished by the city. The patrolmen noted all outages in their route books which, upon completion of their assignments, were left with the work dispatcher in the central office of the company; individual outage reports and follow-up renewals were written up for each underpass by the dispatcher and forwarded to the lighting-maintenance supervisor, who reviewed and routed the work assignments on a district basis; and on completion of the renewals the servicemen returned the outage reports to the central office for checking and filing.

Arnold Johnson, an experienced Edison patrolman assigned to inspect the route including the underpass in question, testified as to his method of inspection and stated that there were no entries in his route book between September 21, 1948 and September 29, 1948, which meant that there were no outages during that period. James McCauley, an Edison renewal serviceman, testified that he replaced burned-out light bulbs in the Austin avenue underpass on September twenty-third, and stated that at that time, as well as for two or three years prior thereto, he had always used sixty-watt bulbs, in accordance with the contract between the company and the city.

Testimony as to the lighting of the underpass is conflicting. Witnesses testifying on behalf of plaintiff stated that some of the underpass lights were off, whereas, as indicated above, Edison witnesses testified that the underpass was fully illuminated at the time of the accident. Various witnesses estimated that unlighted areas extended from as little as 20 feet to as much as 150 feet. All the witnesses agreed that it was necessary for drivers to utilize their city-driving lights. Pedestrian witnesses testified that they could see from 60 to 80 feet beyond them, and plaintiff himself stated that he saw cars approaching the viaduct at a distance of about a quarter of a block from either entrance and could determine in which lane the cars were traveling; that when he was in the center of the street he was able to determine that the car approaching from the north was 75 to 80 feet from him; that the lighting was sufficient to permit him to see that the street was a tan color and he was also able to observe a black line in the center of the street; that he saw Reinke walking to his bicycle on the west sidewalk when he (plaintiff) was in the middle of the street; and that the distance he could see depended on the way he was looking.

Thus premising his case on the primary liability of the city and the secondary liability of Edison, plaintiff’s counsel argues that the evidence clearly establishes negligence on the part of both the city and the Commonwealth Edison Company in failing to provide adequate lighting. Accordingly the issue presented is whether or not the city, having elected in the exercise of its legislative discretion to install a lighting system in the underpass for a limited purpose, as it and the Edison Company contend, thereby assumed the obligation to illuminate the underpass for all purposes which the public might consider convenient. We are therefore called upon to decide to what extent a municipality is free to determine for itself the uses for which and the degree to which it will light its streets and underpasses. So far as we have been able to determine, the cases go no further than to require the city to light or warn against known dangers or obstructions; the courts in this State have refused to go beyond this, recognizing that the determination of the quality and the amount of light to be given is a legislative function rather than a judicial one. Although counsel for the respective parties cite many cases bearing upon this question, we think the obligations of the city and the Edison Company to plaintiff rest upon legal principles set out and discussed in three early Illinois decisions: City of Chicago v. Powers, Admx., 42 Ill. 169; City of Freeport v. Isbell, 83 Ill. 440; and City of Chicago v. Apel, 50 Ill. App. 132; and the reasoning adopted in those decisions has been followed in Johnston v. City of East Moline, 405 Ill. 460. In the Powers case plaintiff’s intestate was killed when she walked past an insufficiently lighted barricade to the approach of an open bridge and fell into the river. Without discussing the general obligation to light the street, the court held that because the city had undertaken to light the street approach to the bridge and the barricade, it was liable for its negligence in not lighting it properly. Later, in the Isbell case, the court expanded on this doctrine, saying: “It might be a matter of great convenience to have all our cities or incorporated towns well lighted, in the night-time, with gas, and it might add to the security of pedestrians whose business or tastes might require them to travel at late hours of the night; but to hold that a city or incorporated town was under a legal obligation to thus provide the streets with light, might well be regarded as an act of usurpation, on the part of the courts, of the legislative power, which has been exclusively delegated to the legislative department of the municipality”; and it distinguished the Powers case by underscoring that there “the city had lighted a certain bridge where the accident occurred, as well as the street; but the injury arose from the fact that the light furnished by the city was insufficient to afford proper protection.” The opinion in the Apel case was based on the theory that a municipal corporation, although it has the power to light and pave streets, is not bound to do so; and further that when, either from its having undertaken to do so, or from any other cause it becomes the duty of such corporation to light an approach or a street, it is sufficient if it do so in such a manner that it is in a reasonably safe condition for travel in the ordinary modes. The East Moline case arose out of an accident caused by a traffic control system that was defective in that it was only partially operative, and, in the light of the Powers and Isbell decisions, the court synopsized the applicable rule to be that “a municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner,” and added that each case must be decided as it arises.

Evidence adduced by the corporate defendants here upon this phase of the case shows that of the 172 lighting fixtures installed in the underpass, 68 were for sidewalk lighting and 104 for roadside lighting. The sidewalk fixtures were approximately nine feet above the surface of the sidewalk and were recessed into the ceiling directly over the sidewalk so that almost all the light from the fixtures was focused onto the surface of the sidewalk; they were spaced along the center line of the ceiling so that each lighting fixture illuminated an area of about 150 square feet.

In contrast to the sidewalk lighting system, the roadside lighting fixtures were about eleven feet from the surface of the road and were embedded into the concrete walls between the columns so that their illumination was not directed down to the surface of the road but was projected, for the most part, to a line parallel thereto. Furthermore, in contrast to the sidewalk lighting system, the roadside lighting fixtures were so spaced that each fixture, if it had been designed to illuminate the surface of the road, would have to light an area of about 290 square feet. In other words, the intensity of the illumination of the road is approximately one-half that of the sidewalk, assuming the same size light bulbs were used in both places, as in fact they were. There is no dispute as to this evidence, and the obvious conclusion to be taken therefrom is that the roadside lighting fixtures were not intended to illuminate the road or objects on the road, and that if the engineering plans had been designed to light the surface of the road, the lights would have been installed in the ceiling over the road in the same manner as the sidewalk lights so that all the lighting would have been focused on the road itself; the plans, in addition, would have provided for a greater number of lighting fixtures to accommodate high-speed traffic. A photograph of the viaduct and underpass indicates that the roadside lights act as a guide to motorists as to the physical layout of the street. This latter consideration is particularly important at night when entrances to the viaduct are not illuminated by daylight; the fact that the daylight in the entrance acts as a guide for the motorist probably explains why it was not considered necessary to light more than one-half of the lights during the daylight hours.

With these considerations in mind it appears to us that the lighting system in the underpass is not intended to and could not illuminate the roadway, and therefore light-bulb failures could not have been the proximate cause of the accident. The physical fact is that if every light in every pillar fixture had been turned on there could not have been an illuminated roadway at the time of the accident; there could have been no light cast on plaintiff and no protection given him against the car which actually struck him. Plaintiff’s witness, Police Officer James Battle, assigned to accident-investigation work, testified that “none of the lights that were on threw any light on the roadway itself,” and of course they could not because they were eleven feet above the street level, were recessed six inches into the pillars, and each fixture was covered with a frosted glass.

In advancing the contention that the city created a darkness hazard when it constructed the underpass, plaintiff places his own construction upon the use of the underpass by the public and the purpose of the lighting system therein, disregarding entirely the legitimate function of the underpass, which provided separate facilities for pedestrians and motorists. Plaintiff cites no authorities to support the contention that in constructing the underpass the city was obligated to provide lighting adequate under all circumstances or that it was required to so light the underpass that motorists would see pedestrians crossing from one side to the other; the underpass was not laid out to include a crosswalk, and it follows that the lighting plans would not be designed to accommodate pedestrian traffic across the underpass proper.

Additional grounds urged by defendants for reversal need not be discussed, in view of our conclusion that plaintiff failed to prove that either the city or the Edison Company was negligent in adequately lighting the underpass, considering the purpose for which it was constructed, or that any act of either defendant was the proximate cause of plaintiff’s injury. For the reasons indicated we are of the opinion that the court should have directed a verdict for both corporate defendants at the close of all the evidence, or should have entered judgment in their favor notwithstanding the verdict. Accordingly the judgment of the circuit court is reversed and the cause remanded with directions that judgment be entered notwithstanding the verdict in favor of both corporate defendants, costs to be assessed against plaintiff.

Judgment reversed and cause remanded with directions.

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


text:
    Alex Stanulus, Appellant, v. Ralph Budd et al., as Members of the Chicago Transit Board and Chicago Transit Authority, Appellees.
    Gen. No. 46,118.

      Opinion filed November 30, 1953.
    Released for publication March 5, 1954.
    McCarthy, Toomey & Reynolds, of Chicago, for appellant; John E. Toomey, and John J. Moran, both of Chicago, of counsel.
    Thomas C. Strachan, Jr., Nash, Ahern & McNally, and James E. Hastings, all of Chicago, for appellees; Martin J. McNally, and James E. Hastings, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Petitioner appeals from an order of the circuit court dismissing his common-law certiorari proceedings challenging his discharge by the Chicago Transit Authority because of falsification in his application for employment.

Petitioner was hired by the Chicago Surface Lines as an apprentice blacksmith or blacksmith’s helper February 28, 1946 and assigned to the maintenance division in the west side shop. In October 1947 the Authority purchased the entire public utility system of the Chicago Surface Lines. Petitioner was then classified by the Authority as an apprentice blacksmith and assigned to the maintenance division of the west side shop. On April 9,1952 he was discharged from his position by the superintendent of the maintenance division for the reason that he untruthfully answered, in his original application for employment with the Chicago Surface Lines, that he had never been arrested. A request to the Authority for a hearing was made. The Chicago Transit Board (the governing and administrative body of the Authority) granted a hearing and fixed the time and place thereof; notice was given, and the hearing was conducted with the petitioner present. He was afforded the opportunity to adduce any evidence he wished. There is no dispute as to the fact that petitioner falsified his application; he admitted doing' so.

Section 28 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1953, ch. 111%, par. 328 [Jones Ill. Stats. Ann. 21.2064(28)]) does not define “cause which is detrimental to the service.” In petitioner’s brief his counsel concede that his falsification of his employment application may reflect on his truthfulness, honesty and integrity, but they argue that the term should “be construed as requiring that before an employee may be removed from his position he must be found guilty of official misconduct, misfeasance or . . . maladministration in office,” and it is argued that the G-eneral Assembly must have intended that the Authority be limited in discharging its employees to some valid reason arising out of the nonperformance or improper performance of the employee’s duties in contrast to the employee’s personal character or fitness to hold his position.

The determination of the Board in the instant case that the falsification by petitioner of his written application for employment is cause detrimental to the service seems neither capricious nor arbitrary; petitioner not only made a false statement in his application which concealed his conviction for a felony, but with the application he submitted a letter signed by his brother in effect stating that petitioner was employed by his brother during a period when he was in fact serving time for his offenses.

It is fair to conclude that an employer has the right to expect of his employees, regardless of the kind of work performed by them, the qualities of truthfulness, honesty and integrity, and it would follow that the lack of such qualities manifestly would be detrimental to the operation of an employer’s business.

There was testimony by petitioner before the Board indicating that the investigation was a retaliatory measure instigated by a co-employee who differed with petitioner on the position he took in a jurisdictional dispute. The action of the Board may seem strict, but it was not arbitrary or capricious. The application carried the warning: “I understand that misrepresentation or omission of facts called for on this application is cause for dismissal.” Since the Board did not exceed its authority or abuse its discretion, a court cannot substitute its judgment for that of the Board. Kammann v. City of Chicago, 222 Ill. 63; Drury v. Hurley, 339 Ill. App. 33; and Joyce v. Board of Education of Chicago, 325 Ill. App. 543.

The statute authorizes discharge for cause detrimental to the service. Since this term is nowhere defined in the Act, we think the construction placed on it by the Board, upon the facts presented in evidence, is reasonable. Therefore the judgment of the circuit court is affirmed.

Judgment affirmed.

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