author: CRAYEN, P. J.

text:
    Tahiko Laukkanen, Bank of Illinois in Champaign as Conservator of the Estate of Tahiko Laukkanen, Incompetent, Plaintiff-Appellee, v. Jewel Tea Co., Inc., a Corporation; C. E. Mulliken; Charles N. Debes; Bel-Vue Homes, Inc., a Corporation; Piggly Wiggly Midwest Co., Inc.; John M. Giolitto and Harry N. Cordes, Defendants. Charles N. Debes and Harry N. Cordes, Defendants-Appellants.
    Gen. No. 10,678.
    Fourth District.
    December 29, 1966.

      T. G. Knappenberger, of Champaign, Yates, Fisk, Haider & Burke, of Chicago (Tom L. Yates, of counsel), and Stanley J. Roszkowski, of Rockford, for appellants.
    Wheat, Hatch, Corazza & Baker, of Champaign (Harold A. Baker, of counsel), for appellee.

       See Callaghan's Illinois Digest same topic and section number

   CRAYEN, P. J.

This appeal arises from the denial of defendants’ post-trial motion. Plaintiff received a verdict of $250,000 for personal injuries sustained on April 30, 1962. The plaintiff was rendered a paraplegic when a pylon which was part of a building designed by the defendants, toppled and struck her as she attempted to enter the building in a severe thunderstorm accompanied by hail and high winds. Judgment against the defendants in the amount of $205,000 was entered below after credit of $45,000 was allowed because of payment received by plaintiff from others in exchange for covenants not to sue. The post-trial motion requested judgment n. o. v. upon the theory that there was no liability as a matter of law on the part of these defendants to the plaintiff and, in the alternative, a new trial on grounds that the evidence was insufficient to sustain the verdict, and that there were prejudicial errors in the admission and rejection of the evidence and in instructions given to the jury. There is no issue concerning the amount of the award.

The defendants are licensed mechanical and professional engineers in the State of Illinois. At the time the plans and specifications were drawn defendant Cordes was an employee of defendant Debes.

The complaint alleges that during the year 1958 the defendants prepared architectural drawings and specifications for the construction of a building which they knew was for public use as a retail grocery store, and that subsequent to the furnishing of the design and specification, the building was constructed in Rantoul, Illinois, in substantial conformity with the defendants’ plans.

A hollow concrete block pylon with brick facing was designed by the defendants as a part of the south eighteen feet of the west wall of the building. The west end of the adjacent south wall contained the customers’ entrance and exit doors. This pylon extended thirty-eight feet into the air from the ground level. The top of it was approximately twenty-one feet higher than the parapet of the perimeter walls. The facing of the building also made up the facing of the pylon to the height of the remainder of the walls; from then up the facing was brick. The outer dimensions of the pylon were three feet four inches by eighteen feet.

The complaint further alleges that the defendants knew that the concrete block pylon they designed would be located directly above the entrance to the grocery store and that any defects in the structure would not be capable of discovery by the public. It charges that the defendants failed to exercise the care exercised by a reasonably well qualified engineer designing a similar building, in that the defendants failed to design a pylon that was structurally strong and the defendants knew or should have known that (a) the pylon as designed was not structurally sound; (b) the pylon was incapable of withstanding the windload force reasonably to be expected at the building site; (c) the pylon was of an aerodynamic shape which rendered it eminently dangerous and incapable of withstanding the windload force reasonably to be expected at the building site.

The complaint further alleged that on April 30, 1962, at about 1:30 p. m., Tahiko Laukkanen was entering the store when the pylon collapsed or tumbled over and fell upon her as a direct and proximate result of one of the negligent acts of the defendants.

The defendants’ answer denied the allegations of negligence and proximate cause, and affirmatively alleged that the cause of the pylon collapse was an act of God for which the defendants were not responsible; further that the plaintiff’s cause of action was barred by the statute of limitations (Ill Rev Stats 1963, c 83, § 24f); and further that the defendants’ only duty in the premises was to prepare the plans and specifications or check them for structural adequacy, and they did not supervise the construction of the store designed by them.

At the trial of the case, plaintiff’s evidence included photographs taken of the building following the damage of April 30, 1962, weather records for the day in question and wind records for many years prior to the occurrence, the plans and specifications furnished by the defendants for the building, and a copy of the 1955 National Building Code, which was in effect at the time the building was designed.

The contractor who constructed the building and the pylon in question testified that the pylon was erected in the manner and with the materials called for by the plans and specifications furnished by the defendants, with the exception that limestone facing was provided for the lower portion of the exterior wall of the pylon and the limestone was bonded to the concrete block interior walls of the pylon in an approved manner but not according to the scheme of the defendants. There is no evidence tending to prove that these variations in actual construction from the defendants’ plans reduced the strength of the pylon below the strength which the defendants believed they had built into the pylon. An expert witness testified to his opinion that the pylon, as built, would not withstand winds in excess of 75 mph because of the use of the lightweight concrete block. He stated that defendants’ plans specified such a block. The contractor confirmed his use of lightweight concrete block in the pylon construction and that the lightweight block was what was called for by the plans and specifications as he understood them. An employee of another local contracting firm testified, on rebuttal, that lightweight concrete block was called for by the defendants’ plans and specifications.

The weather records for April 30, 1962, showed that at 1:27 p. m. local time, the wind was recorded at 76 knots (87.4 mph) at Chanute Air Force Base, a few miles distant from the building in question. The photographs show that the entire upper portion of the pylon collapsed, leaving standing a few courses of concrete block facing above the roof line of the building in question. The portion of the pylon which formed a part of the exterior walls of the building to a height of approximately thirteen feet remained standing including that portion faced with limestone.

The defendants did not view the building in the process of construction, did not supervise or otherwise participate in the actual construction of the pylon or building in question. They drafted and approved the plans and specifications, and had nothing more to do with the building or pylon in question subsequent to sometime in 1958.

The plans introduced into evidence indicate that a revision of the detailed drawings showing the construction of the pylon occurred on September 10,1958, and that the defendant Cordes approved the plans for structural adequacy on May 5, 1958. Defendant Cordes’ seal as a registered structural engineer and defendant Debes’ seal as a registered professional engineer both appear on the pages of the plans relating to the method of constructing the pylon in question.

There was testimony from the plaintiff’s expert which tended to prove that the wind in question, while of more intensity that any other wind recorded by the Weather Bureau since records were kept at Chanute Air Force Base, was within the range of winds to be expected in Rantoul, Illinois, the location of the building in question.

The defendants contended that usage of the industry prescribed heavy concrete blocks for the pylon would have a 50 percent safety factor built in. They admitted, however, that if lightweight block were used, the safety factor would be reduced to 10 percent in a sustained 80 mph wind. Gusts of wind were shown to have a more adverse effect on structures than sustained winds of the same speed.

On this evidence, the jury was justified in finding that the failure of the defendants to specify with particularity that a standard heavy concrete block was to be used in constructing the pylon, instead of lightweight aggregate concrete block specified for use in other portions of the building, resulted in the pylon’s being built with inadequate strength to withstand the winds which accompanied this severe storm. This determination is a finding that the defendants did not use the degree of skill ordinarily and customarily used by members of the defendants’ profession under similar circumstances.

If the defendants’ plans and specifications were not wrong in specifying lightweight concrete block for the pylon, the least that could be said was that they were ambiguous respecting the type of block to be used. The ambiguity, unfortunately, was resolved by the owner and builder by the use of lightweight aggregate concrete block. This lightweight, 38-foot high pylon was placed by defendants in the immediate vicinity of the entrance-way to be used by the general public, where a severe wind sent it toppling down.

The defendants can escape liability for this occurrence as a matter of law only if the duty which they had to furnish adequate plans and specifications for the construction of this building did not extend to plaintiff as a member of the general public. Defendants contend that the duty extended only to the party who contracted for their services, and since the plaintiff was neither a party to the contract nor in privity with someone who was she cannot recover directly from them. Defendants point out that they were not hired to supervise the construction of the building they designed. They say lightweight block was not the building material they intended for the pylon. They desired standard, heavy-duty blocks to be used and they say their lack of opportunity to observe the construction or object to the use of lightweight blocks in the pylon insulates them from direct liability to the plaintiff.

We do not believe that privity of contract is a prerequisite to liability. This action is ex delicto, not ex contractu. The central issues revolve around a charge that defendants failed to exercise that degree of care in the performance of professional duties imposed upon them as members of a licensed profession which exists in large part to prevent harm to the public from structurally unsafe buildings. The building in question was certified as structurally adequate. It was to be occupied and used by the public for business purposes, and the defendants knew it. If contract law should play any part in our determination, it would be our conclusion that plaintiff was a third-party beneficiary of the contract of structural adequacy between the owner and the defendants. However, we do not base our decision upon the law of contract. We conceive that the defendants owe a duty to respond in damages to those members of the general public who can be reasonably anticipated to be present in the structure they designed when negligence in design is a causal factor in injuries sustained through collapse of the building.

The parties agree that the legal duty of the defendants here is the same as the duty imposed upon an architect under the same circumstances. That duty is described in 5 Am Jur2d, Architects, § 23, at 686-687, as follows:

“Liability rests only on unskilfulness or negligence, and not upon mere errors of judgment, and the question of the architect’s negligence in the preparation of plans is one of fact and within the province of the jury.” . . . (Footnotes omitted.)

In this regard, see our discussion in Miller v. DeWitt, 59 Ill App2d 38, 85-98, 208 NE2d 249, 272-277 (4th Dist 1965). This case, No. 39428, is pending in the Supreme Court, petition for rehearing having been allowed. While these defendants did not supervise construction of the building, the jury here found it to be their plan that was defective, not the construction.

The owner of the building, or the occupier, is not an insurer of the safety of a business invitee upon his premises. 28 ILP, Negligence, § 51, at 37. The position of defendants that a person injured by a building collapse must seek recovery against the owner only, and that then the owner can seek indemnity against the designer in a proper case, ignores the reality that an owner might successfully defend a case such as this brought by a plaintiff injured in the manner and under the circumstances disclosed by this case. The plaintiff in such a suit would be remediless although the victim of an admittedly negligent act of the designer.

The recent doctrine of strict liability for defects in manufactured products announced in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), does not apply here. A designing engineer cannot be held to the liability of a manufacturer. If the fact that the defendants did not supervise the construction of their design has legal significance, that is where such significance lies. But to prohibit recovery from injuries caused by his negligently drawn plans, upon the ground that no contractual relationship existed between the injured member of the public and the negligent furnisher of the plans, is to enforce outmoded concepts of liability dependent upon contract-law doctrines that no longer belong in the law of tort liability. Negligence which proximately causes injury will require the negligent actor to respond in damages for the harm suffered, where the injury is foreseeable, regardless of the prior relationship of the parties.

The doctrine of strict liability, announced in Suvada, is not here applicable, but the language of the court in that opinion is applicable in that privity of contract is not and cannot be a condition precedent to tort liability.

We believe that the evidence in this case created a question of fact for the jury on the issues of negligence and proximate cause, and that the jury was justified in concluding that the defendants were negligent in designing a building containing the pylon at the location chosen by defendants to be constructed of lightweight concrete block, and that the injury to the plaintiff was foreseeable and was proximately caused by the defendants’ breach of duty to members of the public. Pfister v. West, 53 Ill App2d 305, 203 NE2d 35 (1st Dist 1964).

The defendants’ defense of an act of God was also a jury question and we cannot say, based upon the evidence adduced at the trial, that the jury’s failure to return a verdict in favor of the defendants based on that defense was error.

The defendants likewise are unable to avoid liability on the ground that the statute of limitations is a bar to the plaintiff’s action. The relevant statute relied upon is as follows:

“No action to recover damages . . . for injury to the person, or bodily injury . . . arising out of the defective and unsafe condition of an improvement to real estate, . . . shall be brought against any person performing or furnishing the design, [or] planning, ... of such improvement to real property, unless such cause of action shall have accrued within four years after the performance or furnishing of such services. . . .” Ill Rev Stats 1963, c 83, § 24f.

This act does not establish a date by which an action must be filed. It establishes a date by which an injury must occur to be actionable. The legislature, by placing a specific limitation on the time within which an injury must occur in relation to the negligent performance of services involving design of a building, acknowledged the existence of the plaintiff’s cause of action in this case. There is no evidence in this record which established on behalf of the defendants that the services they performed were completed more than four years prior to the date of the plaintiff’s injury.

The defendant Debes testified that the defendants’ services were completed when six sets of the plans were turned over to the owner. Sheet NS-5 of defendants’ drawings (which contain detail of the pylon) establishes May 5, 1958, as the date that six sets of the plans in question were turned over to the owner. We, therefore, hold that defendants did not prevail as a matter of law on the defense of the statute of limitations.

We hold that within the well-settled doctrines which apply to negligence cases and jury decisions, the defendants were not entitled to a favorable ruling on their post-trial motion for judgment n.o.v. Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847 (1950), and cases therein cited.

We have examined the defendants’ contentions with respect to the admission and rejection of evidence, and find that they are without merit. We have further examined the defendants’ contentions with respect to errors in instructing the jury. Defendants contend that IPI 15.01, given as plaintiff’s Instruction No. 4, should not have been given in its entirety. That instruction defines proximate cause. Defendants say that the inclusion of the language,

“It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”

in effect, denied defendants a fair consideration of their “act of God” defense. The jury was properly instructed as part of court’s Instruction No. 2 to the effect that if the wind which blew over the pylon in question could not have been foreseen by the defendants, then they were not liable to the plaintiff, and we fail to see how the quoted language in the instruction on proximate cause could mislead the jury to the defendants’ prejudice in the light of the clear statement of the issues in a separate instruction.

Additionally, in view of the defendants’ contention and evidence that the contractor was at fault for using lightweight blocks, which the jury could believe and still hold the defendants liable for separate fault, we believe that the instruction was not misleading in the light of all the evidence.

We have examined the other alleged errors in instructions. We find that, as a whole and taken as a series, the instructions fairly and impartially presented the issues made by the pleadings and evidence to the jury and there was no error in the giving of any instruction the jury received nor was there any error in refusing defendants’ tendered instructions. The absence from the instructions of the phrase “act of God” in relation to the wind was not error. Beckert v. Risberg, 33 Ill2d 44, 210 NE2d 207 (1965); Schwarz v. Adsit, 91 Ill App 576 (1899).

The evidence disclosed that the defendants were required, in their profession and by the 1955 National Building Code on which they relied, to design for resistance to wind pressure, among other things. The amount of expected wind was a matter of degree. There was no evidence of a tornado or catastrophe in the neighborhood. Foreseeability was the true issue, and the instructions were proper as framed. Blue v. St. Clair Country Club, 4 Ill App2d 284, 124 NE2d 346 (4th Dist 1955), revd on other grounds, 7 Ill2d 359, 131 NE2d 31 (1956).

For the above and foregoing reasons, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.

       See Eisner Food Stores v. Industrial Commission, 33 Ill2d 474, 211 NE2d 683 (1965), in which case this pylon is described and there is a discussion of the weather conditions on the day of this injury.


source: Caselaw Access Project

author: GOLDENHERSH, J. EBERSPACHER, J.,

license: Public Domain

text:
    Ruth Fanning, Plaintiff-Appellant, v. Claude Lemay and Ernest Piper, d/b/a Speed Wash Laundry; U. S. Rubber Company, Incorporated, a Corporation; and Montgomery Ward and Company, a Corporation, Defendants-Appellees.
    Gen. No. 66-21.
    Fifth District.
    December 31, 1966.

      Hanagan & Dousman, of Mt. Vernon, for appellant.
    John E. Jacobsen, of Craig & Craig, of Mt. Vernon, for appellees U. S. Rubber Co., Inc. and Montgomery Ward and Co., Inc., and Franklin, Garrison & Bleyer, of Marion (James B. Bleyer, of counsel), for appellees Claude Lemay and Ernest Piper, d/b/a Speed Wash Laundry.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Jefferson County, entered in favor of all defendants upon allowance of defendants’ motions to dismiss plaintiff’s complaint, and the cause of action.

The complaint is in three counts. Count I, as amended, is directed against the defendants, Claude Lemay and Ernest Piper, d/b/a Speed Wash Laundry. Plaintiff alleges that defendants own and operate a laundromat in Mt. Vernon, known as the Speed Wash Laundry, that plaintiff, as a business invitee of defendants, entered the premises for the purpose of using certain coin operated washing machines, that she was in the exercise of due care for her own safety, that it was raining, that the floor of the laundromat was covered with asphalt tile, which defendants knew, or in the exercise of reasonable care should have known, would become slippery when wet, that defendants knew, or in the exercise of reasonable care should have known, that customers coming in to the premises while it was raining would carry water on to the asphalt tile on the soles of their shoes, that defendants owed their customers the duty to exercise reasonable care, that defendants were negligent in failing to furnish a mat, rug, or “other similar safe and suitable means” inside the door for “use by customers to wipe their shoes,” upon entering the premises, and were negligent in failing to warn plaintiff and others that the floor was slippery when wet, when “they knew or should have known that the safety of plaintiff was thereby endangered.”

Count II is directed against the defendant, U. S. Rubber Company, Incorporated, and charges that the defendant, U. S. Rubber Company, Incorporated, manufactured a certain type of shoe which was sold exclusively by the defendant, Montgomery Ward and Company, Incorporated, the soles of which, when wet, were not safe for use in walking on asphalt tile floors, that persons wearing said shoes, when wet, and in walking upon asphalt tile floors, were in danger of slipping and falling, that defendant used a type of material in making the soles which it knew, or should have known, was not safe for the purpose for which it was used, that defendant failed to warn plaintiff and other purchasers of the dangers of wearing the shoes, that plaintiff purchased a pair of the shoes from the defendant, Montgomery Ward and Company, Incorporated, and while wearing them, entered the premises of the defendants, Claude Lemay and Ernest Piper, that it was raining, and that there was not available in the premises any means of wiping the moisture from the soles of her shoes.

Count III is directed against the defendant, Montgomery Ward and Company, Incorporated, and alleges that plaintiff bought the above described shoes from this defendant, alleges that chapter 26, sections 2-315, and 2-316 (2), Ill Rev Stats 1963, were in full force and effect, that plaintiff relied upon the skill or judgment of the defendant, Montgomery Ward and Company, Incorporated, that the shoes were fit for the purpose of walking upon asphalt tile floors, and in wet weather; that said shoes were not fit for that purpose in that when the soles were wet, they became slippery and dangerous, that at the time of the sale, plaintiff was not given any conspicuous written exclusion of the implied warranty of fitness as is required by section 2-316(2) supra, that plaintiff wore the shoes into the premises of the defendants, Claude Lemay and Ernest Piper, and because of the breach of the implied warranty, defendant was caused to fall. In each count it is alleged that plaintiff fell and suffered injuries.

The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. Ch. 110, §33(3), Ill Rev Stats 1965. Section 4 of the Civil Practice Act provides that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the rights of the parties. (C 110, § 4, Ill Rev Stats 1965.) Section 31 provides that certain formal requisites heretofore pertaining to pleading are no longer necessary, but states that the section does not affect in any way the substantial averments of fact necessary to state a cause of action, and section 42(2) provides: “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.”

In a scholarly opinion in the case of Kita v. Young Men’s Christian Ass’n of Metropolitan Chicago, 47 Ill App2d 409, 198 NE2d 174, Mr. Justice McCormick, speaking for the Appellate Court, reviews the common-law system of pleading, the reforms instituted in England commencing in 1776, the development of code pleading in the United States, and many of the decisions of the Illinois courts of review since the adoption of the Civil Practice Act in 1933, and concludes with the admonition that the purpose of the law is to do substantial justice, and if the courts, by their restrictive interpretation of the Civil Practice Act, “place the rights of the plaintiff and defendant in a legal strait jacket,” they will defeat the achievement of simplicity of pleading which the Civil Practice Act was designed to accomplish.

The purpose of a complaint, and the test of its sufficiency, is that it inform the defendant of a valid claim under a general class of cases. Irving v. Rodriquez, 27 Ill App2d 75, 169 NE2d 145. In Hall v. Gruesen, 22 Ill App2d 465, 161 NE2d 345, at page 468, the Appellate Court, in considering the sufficiency of a complaint, said: “The averments are not in that precise language at one time required, but under the Practice Act, pleadings are liberally construed with a view to doing substantial justice between the parties. (Ill Rev St 1957, Ch 110, Par 33.) This is not an idle generality to which only lip service need be paid. It is the pronouncement of a burial service for the formalities of Chitty and the rigors of common-law pleading. . . . The essential test of a complaint is that it inform the defendant of a valid claim.”

In a complaint seeking to allege a cause of action based on negligence, it is sufficient if the facts alleged are such as to raise a duty, show a breach of the duty, and a resulting injury. The allegations need not be framed in any specific manner, negligence may be alleged generally, Church v. Adler, 350 Ill App 471, 113 NE2d 327, and causes of action may be pleaded alternatively, hypothetically and inconsistently. (Section 43 (2) Civil Practice Act.) If a party feels that the pleading does not adequately advise him of the claim against which he must defend, section 45(1) of the Civil Practice Act provides for a motion to make more definite and certain, and a bill of particulars may be sought in accordanee with section 37. The provisions for discovery in the Civil Practice Act and the Supreme Court Rules, provide the method for obtaining information pertinent to the litigation. With these means of ascertaining the nature of the claim, and the evidence in support of it, an order of dismissal of a cause of action on the pleadings should be entered only if no set of facts can be proved which will entitle the pleader to relief, and then only if it is apparent that even after amendment, if leave to amend is sought, that no cause of action can be stated. Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, Inc., 72 Ill App2d 488, 218 NE2d 823, Davis v. Hoeffken Bros., Inc., 60 Ill App2d 139, 208 NE2d 370.

Plaintiff, relying primarily upon Sommese v. Maling Bros. Inc., 65 Ill App2d 223, 213 NE2d 153, argues that Count I of the complaint states a cause of action. Defendants, Claude Lemay and Ernest Piper, d/b/a Speed Wash Laundry, contend that plaintiff’s complaint “alleges an occurrence resulting solely from natural causes; namely, rain water on sole of plaintiff’s shoes, for which defendants cannot be held responsible, and the Court should decide the question as a matter of law.”

In support of their position, defendants, Claude Lemay and Ernest Piper cite Clark v. Carson Pirie Scott & Co., 340 Ill App 260, 91 NE2d 452; Hartman v. Goldblatt Brothers, Inc., 19 Ill App2d 563, 154 NE2d 872; Murray v. Bedell Co., 256 Ill App 247; Brunet v. S. S. Kresge Co., 115 F2d 713; Sears, Roebuck & Co. v. Johnson, 91 F2d 332; and S. S. Kresge Co. v. Fader, 116 Ohio St 718, 158 NE 174. We have examined each of these opinions, and point out that unlike this case, those cases were tried, and the reviewing court was required to determine whether the evidence presented a case for submission to the jury.

Here, our review is more limited; we need only determine whether under the pleadings, plaintiff could prove a submissible case.

On November 14, 1966, in Docket No. 39776, the Supreme Court, while reversing the judgment in Sommese for other reasons, said: “The defendant contends that as a matter of law the plaintiff is not entitled to recover because the plaintiff’s evidence failed to establish that the construction or maintenance of the defendant’s premises was negligently accomplished; that defendant had any knowledge of the alleged hazardous nature of its premises; and proximate cause. Defendant further insists the evidence shows that plaintiff’s actions were the proximate cause of her injury, or that her injuries were the result of an accident for which nobody is to blame.

“As to these matters the appellate court held that the plaintiff was not barred from recovery as a matter of law and that the trial court was correct in refusing defendant’s motions for a directed verdict, and for judgment notwithstanding the verdict. We do not consider it necessary to discuss the cases presented on this point as they are analyzed in the appellate court opinion. We believe that the appellate court was correct in its decision on this point and that, considering the evidence most favorable to the plaintiff, it was a jury question as to whether the defendant knew or should have known that the material used in the composition of the floor, upon becoming wet and damp, became very slippery and dangerous and that the defendant failed to warn the person lawfully on its premises of its unsafe condition.”

In view of the holding in Sommese, we conclude that under the pleadings here plaintiff could prove that the defendants knew, or should have known, that the asphalt tile, like the terrazo in Sommese, upon becoming wet, became very slippery and dangerous, and failed to warn plaintiff, lawfully on their premises, of its unsafe condition. The falling of rain and the tracking of water into premises to which the public is invited are predictable and frequent occurrences, and, as stated by the Appellate Court in Sommese, whether the failure to place mats on the floor is negligence, if such failure is proved, is a jury question. Confronted with this specific issue in Lagana v. Stop and Shop, Inc., 24 Conn Sup 64, 186 A2d 565 (Circuit Court of Connecticut, Appellate Division), the court held that whether the defendant was negligent in failing to place a rubber mat on its floor during a period of snow fall, was a jury question.

We have examined the Abstract of Record filed in Sommese and find the allegations of negligence abstracted as follows: “She alleged negligence in failing to keep the premises in a safe condition, allowing the premises to become wet and slippery which created a dangerous condition, and failure to warn her, as an invitee, of the dangerous condition caused by the material composing the sidewalk becoming wet and slippery.” The evidence adduced in Sommese, as reviewed in the opinion of the Appellate Court, would be admissible under the allegations contained in Count I of plaintiff’s complaint, and if such evidence were adduced, it would make a submissible case. We conclude, therefore, that the trial court erred in dismissing Count I.

Count II purports to plead a cause of action against the defendant manufacturer, and is the type of claim commonly referred to as “Products Liability.”

The parties have cited and argued many cases, but as this court said in Wright v. Massey-Harris, Inc., 68 Ill App2d 70, 215 NE2d 465, “We have refrained from extended comment on any cases pre-dating Suvada because we believe that Suvada inaugurates a new era in products liability law in Illinois to such an extent that almost all of the cases preceding this decision are completely outmoded.” The sufficiency of Count II must be determined in the light of the decision in Suvada. To state a cause of action the complaint must allege that plaintiff’s injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that it existed at the time that it left the manufacturer’s control. The complaint charges that the soles of the shoes were made of material which was not safe for the purpose for which it was used, that defendant failed to warn plaintiff and other purchasers that when wet, the shoes were not safe, and that her injury resulted therefrom. Suvada holds specifically that a defect in manufacture may give rise to a cause of action; this court in Wright v. Massey-Harris (supra) held that liability could also arise from a defect in design, and we now hold that the principle of Suvada is applicable to a defect in manufacture consisting of use of a material which may not be safely used for the purpose intended. Count II states a cause of action, and the trial court erred in dismissing the case as to the defendant, U. S. Rubber Company, Incorporated.

Count III is also in the nature of a claim arising out of “Products Liability,” differing from Count II in that it is directed against the retailer from whom the the shoes were purchased. As stated by the Supreme Court in Suvada, “In addition to the manufacturer, liability in tort for a defective product extends to a seller, (Lindroth v. Walgreen Co., 407 Ill 121). . . .”

We are not aware of any decisions by Illinois courts of review in which the doctrine of strict liability in tort was applied to a retailer. In Vandermark v. Ford Motor Co., 61 Cal2d 256, 37 Cal Rptr 896, 391 P2d 168, (Supreme Court of California 1964) at page 171, the court said, “Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. (See Greenman v. Yuba Power Products, Inc., 59 Cal2d 57, 63, 27 Rptr 697, 377 P2d 897.) In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end; the retailer’s strict liability thus serves as an added incentive to safety. Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship. Accordingly, as a retailer engaged in the business of distributing goods to the public, Maywood Bell is strictly liable in tort for personal injuries caused by defects in cars sold by it. (Citing cases.) ”

For the decision of this appeal we need not determine whether the doctrine of strict liability in tort is applicable to all retailers. It is here alleged that the defendant, Montgomery Ward and Company, Incorporated, is the sole and exclusive retailer of the shoes which are allegedly defective, and under these circumstances, we hold the doctrine of Suvada to be applicable, and the court erred in dismissing Count III.

For the reasons herein set forth, the judgment of the Circuit Court of Jefferson County is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

MORAN, J., concurs.

EBERSPACHER, J.,

dissenting.

While I agree that Count I of the- complaint states a cause of action, I am of the opinion that neither Count II nor Count III state a cause of action. In those two Counts, I consider that plaintiff has failed to allege facts, sufficient to show that there was an unreasonably dangerous condition or defect in the shoes. Likewise in those Counts, plaintiff has failed to allege facts, sufficient to show that either the manufacturer or retailer knew or should have known that the shoes were going to be used when wet on an asphalt tile floor. Despite the liberal construction which pleadings are entitled, the Civil Practice Act still requires that facts, rather than conclusions of the pleader, be alleged to raise a duty, show a breach of duty, and a resulting injury. The fact that plaintiff fell while walking on asphalt tile when her shoes were wet, in my opinion, raises no presumption that there was either negligence, fault, or a duty to warn on the part of the manufacturer or seller of the shoes, in the absence of allegations of a representation that they were suitable for uses when wet on asphalt tile, or knowledge that the shoes were purchased for use when wet on asphalt tile.

         Suvada v. White Motor Company, 32 Ill2d 612, 210 NE2d 182.


author: MR. JUSTICE RATHJE

text:
    De Bruler Homes, Inc., an Illinois Corporation, Plaintiff-Appellant, v. County of Lake, a Body Politic Organized Under the Laws of the State of Illinois, Defendant-Appellee.
    Gen. No. 65-138.
    Second District.
    December 29, 1966.
    Rehearing denied January 18, 1967.

      George B. Collins, of Chicago, for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan, and Earl Joseph Kruse, Assistant State’s Attorney, for appellee.
   MR. JUSTICE RATHJE

delivered the opinion of the court.

Plaintiff-appellant, De Bruler Homes, Inc., an Illinois corporation, brings this appeal from an order finding the Amended Zoning Ordinance of Lake County valid and dismissing its complaint for declaratory judgment for want of equity. Said complaint prayed that the defendant and its employees be enjoined from enforcing the said Amended Zoning Ordinance against the plaintiff’s property and that the said zoning ordinance be declared unconstitutional and void insofar as it prohibits the subdivision of plaintiff’s property into lots having less than 10,000 square feet in area.

On February 15, 1961, the plaintiff purchased 5.30 acres lying at the Southwest corner of a 40-acre tract located on the South side of Gages Lake Road in the unincorporated area of Lake County; the contract for sale gave it an option to purchase the remainder by February, 1968. For the purpose of this opinion, the 5.30 acres owned in fee by the plaintiff shall be referred to as the “subject property,” and the remaining portion of the 40 acre tract on which the plaintiff holds an option shall be referred to as the “remainder.” A diagram of subject property and that related thereto is as follows:

The subject property and the remainder are used essentially for farming, and both are zoned “F” under the defendant’s amended zoning ordinance which classification permits single-family residences with a minimum lot size of 40,000 square feet. The plaintiff filed this suit seeking to declare that portion of the Lake County Amended Zoning Ordinance prescribing a minimum residential lot size of 10,000 square feet unconstitutional and void without first applying for a more intensive residential zoning of the subject property and remainder. A motion to dismiss was filed by the defendant and no action was taken while the plaintiff petitioned the Zoning Board of Appeals and the Board of Supervisors of Lake County for a residential zoning classification with a minimum lot requirement of 8,000 square feet. The Zoning Board of Appeals recommended reducing the minimum lot size of residential property to 8,400 square feet but apparently no action was taken by the Board of Supervisors on plaintiff’s application and therefore we assume, for the purpose of this opinion, that the said application was rejected and plaintiff’s administrative remedies have been exhausted.

To the west of the subject property and the remainder is the Wildwood Subdivision comprising a development having lot sizes of eight, nine and ten thousand square feet, the latter of which abuts the subject property. There are many vacant lots in this subdivision although the evidence does not reveal whether these lots were owned by the developer or by individual property owners. Recently the Gages Lake Sanitary District was established; it serves Wildwood with a main sewer line running from the subdivision diagonally across part of the subject property and a portion of the remainder to a disposal plant located to the east. Immediately to the east of the remainder is the Woodland Junior High School and to the north of this school, across Gages Lake Road, is an elementary school. The remaining area surrounding the subject property and the remainder is essentially rural and used for farming purposes.

Under the defendant’s zoning ordinance, seven single-family residential districts have been established, the most intensive providing for an area of ten thousand square feet. Under this classification, the subject property and the remainder could be subdivided into 123 residential lots. Plaintiff seeks to subdivide the subject property and the remainder into 166 lots having a minimum lot size of 8,000 square feet. Upon each lot it would construct a $14,000 to $16,000 home, and the subdivision would be improved with paved streets, paved sidewalks, sewer and water facilities.

Plaintiff contends that the subject property and the remainder are not suitable for the most intensive permitted residential use under the defendant’s zoning ordinance ; that the highest and best use of the subject property would be for single-family residence lots of 8,000 square feet; that the savings on the smaller lot size could be used for a higher quality home; that the minimum lot requirement of 10,000 square feet as found in defendant’s zoning ordinance fails to bear any substantial relation to the public health, safety, comfort, morals or general welfare; and that the plaintiff has exhausted its administrative remedies.

The proofs of the plaintiff and the defendant, and the memorandum opinion of the trial court considered that the issue presented was the validity of the minimum lot size requirement of the Amended Zoning Ordinance of Lake County as applied to the entire 40-acre tract. The testimony at the trial established that the present minimum lot size of 40,000 square feet for residential development was not economically feasible; that the highest and best use would be for residential purposes; and that the 40-acre tract could be subdivided into lots of either eight or ten thousand square feet.

The evidence for the plaintiff was to the effect that the highest and best use would be a residential subdivision containing lots of 8,000 square feet and that it would have no adverse effect upon the general health, safety or welfare. A witness for the plaintiff stated that the difference in profit between the two-lot size requirements would be approximately $66,000. On cross-examination, he stated the only hardship to the plaintiff by being required to subdivide the subject property and the remainder into 10,000 square foot lots would be a loss of profits. He stated the fair market value for the subject property and the remainder with 8,000 square foot lots would be $120,-000, and $60,000 if divided into 10,000 square foot lots.

The evidence for the defendant was that there were several subdivisions in the area with lots of 8,000 square feet or less, which have not been improved; that lots having a minimum lot size less than 10,000 square feet would diminish the utility and value of the lot; that the highest and best use of the subject property and the remainder would not be 8,000 square feet per lot; and that the fair market value of the subject property and the remainder, if divided into 10,000 square foot lots, would be $120,000.

Subsequent to the enactment of the Amended Zoning Ordinance, the defendant inventoried the existing uses and the physical characteristics of the land in the unincorporated area of the County. The Regional Lake County Planning Director concluded that on the basis of this inventory and from forecast of future land needs that the 40-acre tract was an area most appropriate for residential development under the existing zoning ordinance.

As stated by the trial court, the question is not the power of the defendant to prescribe lot area restrictions but rather the exercise of that power as applied to subject property and the remainder. The County Zoning Act, (Ill Rev Stats 1965, c 34, par 3151), provides that for the purpose of promoting the public health, safety, morals, comfort and general welfare, the Board of Supervisors have the power to divide the unincorporated areas of the county into districts of such number, shape, area and intensity of use as may be deemed best suited to carry out the purposes of this Act.

Zoning regulations are not to be formulated or applied with a design to encourage the most appropriate use of plaintiff’s property but rather are drafted to effectuate the purpose of the County Zoning Act — that of encouraging the most appropriate use of land throughout the county. One who challenges the validity of a zoning ordinance must prove by clear and convincing evidence that it is, as applied to him, arbitrary and unreasonable and without substantial relation to the public health, safety or welfare. Cities Service Oil Co. v. Lake County, 26 Ill2d 176, 181, 186 NE2d 265 (1962); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 225, 130 NE2d 267 (1955). There is a presumption that the ordinance bears a reasonable relation to the public health, safety or welfare. Exchange Nat. Bank of Chicago v. City of Chicago, 28 Ill2d 341, 345, 192 NE2d 343 (1963). Where the record presents a fairly debatable question as to the reasonableness of an ordinance, the question must be resolved in favor of the determination of the zoning agency in absence of a clear abuse of such power. Rams-Head Co. v. City of Des Plaines, 9 Ill2d 326, 334, 137 NE2d 259 (1956). In considering the validity of a given zoning ordinance, each case must be decided on its own facts. Trust Co. of Chicago v. City of Chicago, 408 Ill 91, 99, 96 NE2d 499 (1951); Galt v. County of Cook, 405 Ill 396, 403, 404, 91 NE2d 395 (1950).

The Supreme Court of this state has approved minimum lot area restrictions. In Galpin v. Village of River Forest, 26 Ill2d 515, 187 NE2d 238 (1962), the Supreme Court sustained a minimum lot area of one-fifth of an acre for a single-family residence, although a real estate broker and a real estate appraiser testified that there would be an economic loss to the owner of between $9,000 and $10,-000, and that there were some homes in the immediate area which were built upon lots containing less than one-fifth of an acre. In Honeck v. Cook County, 12 Ill2d 257, 146 NE2d 35 (1957), a five-acre minimum lot area in a residential zone was upheld where evidence was introduced that the highest and best use of the property was for residential tracts of one acre or less; that the property would be more valuable if zoned for one-acre tracts; and that there was no ready market for five-acre tracts in the vicinity. In upholding a minimum of one-fifth of an acre requirement in Reitman v. Village of River Forest, 9 Ill2d 448, 137 NE2d 801 (1962), many cases from other jurisdictions were cited where minimum lot requirements had been sustained.

The record has been carefully reviewed in light of the relevant principles enunciated in the above-mentioned cases. We do not believe that the evidence clearly shows that the restriction under consideration is unreasonable under the circumstances of this case and we do not believe that this court would be warranted in disturbing the findings of the trial judge who saw and heard the witnesses. In this light, plaintiff’s evidence, at best, shows that it would be more profitable to use its property in a manner prohibited by the ordinance. The plaintiff admitted that it could develop its property with a 10,000 square foot lot size requirement and that the only hardship would be of an economic nature. Any financial disadvantage that may result to the plaintiff is a self-created one since it purchased the property with full knowledge of the applicable zoning restrictions. If we assume, as plaintiff argues, that the 10,000 square foot lot restriction prevents the construction of high quality housing for people of modest means, yet the defendant introduced evidence that there were several subdivisions in the area with smaller lot sizes which have remained vacant. Such testimony would negate the need of lots of 8,000 square feet.

As noted above, the entire evidence in this case was directed toward the validity of the zoning ordinance in question as applied to the 40-acre tract. In view of our determination of the case, we need not pass on the question of the right of the plaintiff to have said ordinance declared unconstitutional as to the remainder acreage.

We conclude that the testimony in the instant case does not show such arbitrary or capricious action on the part of the legislative body as to indicate an unconstitutional exercise of its zoning function. The legislative body charged with responsibility for prescribing the minimum lot size requirements for residential purposes has considered this problem and denied the application for change. This action, in turn, has been sustained by the trial judge who saw and heard the witnesses. There is nothing in the record which would compel us to substitute our judgment for that of the legislative body whose action has been sustained by the trial court.

The judgment of the Circuit Court of Lake County is therefore affirmed.

Judgment affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


author: EBERSPACHER, J.

text:
    Gladys M. Vandaveer, Plaintiff-Appellee, v. Norfolk and Western Railway Company, a Corporation, Defendant-Appellant.
    Gen. No. 66-23.
    Fifth District.
    December 31, 1966.

      Pope and Driemeyer, of East St. Louis, for appellant.
    Chapman, Strawn & Kinder, of Granite City (Morris B. Chapman, of counsel), for appellee.
   EBERSPACHER, J.

Defendant, Norfolk and Western Railway Company, appeals from a $40,000 judgment entered on a jury verdict, in a case brought under the Federal Employers’ Liability Act (FELA, 45 USCA, 51), assigning as error the court’s denial of the post-trial motion, which prayed for judgment notwithstanding the verdict, and in the alternative a new trial.

The plaintiff, Gladys Vandaveer, was a 37-year-old married woman, who, since she was 18 years old, had been employed by The New York, Chicago and St. Louis Railroad Company (Nickel Plate) in various capacities, and who on November 30,1961, successfully exercised her seniority to bid into and take a messenger job, which she held on January 2, 1963, the date of the occurrence out of which her injuries arose. (In October 1964 the defendant, Norfolk and Western, became the successor to the Nickel Plate by merger.)

Plaintiff’s work as a messenger followed a similar daily pattern. Her duties as a messenger required the use of an automobile and she used her own car, a Volkswagon, for which she was paid a mileage allowance in addition to her hourly pay. Since March 30, 1962, on the morning of each working day, she picked up mail at the Madison, Illinois post office, and after making various deliveries, and exchanges with messengers from other railroads, drove to the Union Station in St. Louis where she delivered, exchanged, and picked up mail in the baggage room, which was located near the 20th Street entrance to the station, and then proceeded through the midway of the station to the 18th Street side of the station to the offices of the Terminal Railroad Association, where she picked up the railroad bills, and returned with them through the midway of the station to the 20th Street entrance, and thence to her parked car, and back to her employer’s office in East St. Louis. Previous to March 30, 1962, her duties as a messenger took plaintiff over a different route, which included use of the 18th Street entrance of the Union Station in St. Louis, but not use of the 20th Street entrance and did not include her necessarily passing through the midway of the station.

On January 2,1963, plaintiff made her deliveries in the customary manner and at about 11:00 a. m. drove her Yolkswagon to the 20th Street side of Union Station. The parking area near the entrance, reserved for those with business at the station, was filled, and she parked at an angle on the East side of 20th Street. There were 10 to 12 other cars parked between her car and the 20th Street entrance to the station which she used. She then got out of her car, left her purse under the seat and the door of her car unlocked, proceeded through the 20th Street entranceway into the baggage room through the midway to the 18th Street side of the station, picked up a small sack containing the railroad bills and returned through the station to her car parked on 20th Street.

She opened the car door on the driver’s side and put the mail and the small sack on the floor of the back seat. As she did so, one of two men spun her around and the other grabbed her arms from behind. The two men demanded her money, and allowed her to reach into her coat pocket and give them what money she had in her coat pocket; an amount between two and three dollars. One man jerked off her earrings, and one started to tear off her clothes, jerking off her coat and sweater and reaching inside her bra. At that time they were distracted by an approaching motorcycle policeman, and she was shoved down into the seat of her car, hitting her breast and side on the steering wheel. Her attackers got into their car, parked aside of hers, and fled. She had noticed the two men parked in the car next to her before she entered the station but paid no particular attention to them, since she customarily observed persons in cars parked in this area.

Plaintiff stopped the motorcycle policeman, told him what had occurred, declined his offer to accompany her to the railroad’s office and returned to the railroad’s office in East St. Louis, before noon. There she reported the occurrence to her superior, and at his suggestion, went to her home and stayed there the following day.

When she returned to work on January 4th, at the suggestion of the train master, she went to the office of a physician, Dr. Compton, who did some medical work for the railroad, who treated her for bruises of her arms and back, headaches, and nervousness, and released her to return to work a month later. Dr. Compton found that she was suffering from extreme nervousness and told her that if she did not improve she should have some psychiatric treatment. She returned to her employment, and continued to perform her duties until May 1, when at the suggestion of her personal physician, Dr. Smith, who had been treating her for various physical complaints for more than 4 years before her encounter with the two men, and under whose direction she had both before and after January 2nd taken tranquilizers, she took a leave of absence. She was prevented from returning to work at the expiration of her leave of absence due to recurrence of a kidney ailment and back complaint, both of which, according to her doctors, had no relationship to her experience of January 2.

In February of 1964, plaintiff was hospitalized for treatment of a peptic ulcer. Plaintiff was subsequently referred to a psychiatrist in November 1964, who caused her to be hospitalized, where she received shock therapy. At the time of trial she complained of nervousness and occasional nausea. It was the psychiatrist’s, Dr. McMahon’s, opinion, based upon a reasonable degree of medical certainty, that the condition with which plaintiff is afflicted is permanent, and that she cannot return to work. Both Dr. Compton and Dr. Smith were of the opinion, within a reasonable degree of medical certainty, that plaintiff’s ulcer could be the result of the trauma involved when she was attacked by the two men, and Dr. Smith testified that, in his opinion, there was a causal connection between plaintiff’s severe anxiety and the attack of January 2,1963.

Plaintiff, in her amended complaint charged defendant with the following negligent acts and omissions, to wit:

“A. With knowledge, or the reasonable means of same, by exercising ordinary care that the area which Plaintiff was sent to conduct said business and park her said car and subject herself to was a decadent area, and one frequently habituated by persons of low morality and disposed to violence and crime, and who would be prone to assault and harm Plaintiff, negligently and carelessly failed to provide her a safe place to park her vehicle so that she would have safe ingress and egress to said station.
“B. With knowledge, or the reasonable means of same, by exercising ordinary care that the area which Plaintiff was sent to conduct said business and park her said car and subject herself to, was a decadent area, and one frequently habituated by persons of low morality and disposed to violence and crime, and who would be prone to assault and harm Plaintiff, negligently and carelessly failed to furnish Plaintiff with a guard or any other means of protection while she carried papers and properties of the said Defendant which would lure the persons of propensities to her as aforesaid.
“C. Negligently and carelessly failed to use reasonable care to provide Plaintiff with a reasonably safe place to work.”

Plaintiff presented evidence to the effect that previous to this occurrence she had felt apprehensive with reference to the parking situation but had only related this to her husband, also an employee of defendant, and a few girls on the extra board. She had never reported or complained about the parking situation to either of her superiors. At the time she bid in the messenger’s job, she was advised by her superior that there was no allowance for parking. There was a parking facility inside the Union Station, with an attendant on duty. Her evidence suggests that this was not available to her, because it was limited to use by employees of the Terminal Railroad Association. The parking lot, located on the West side of 20th Street, and extending a block North and South, opposite the 20th Street entrance, was connected to Union Station by a tunnel under 20th Street. It was not available to her without payment of a parking fee. Previous to January 2, 1963, plaintiff had for 5 days each week, for at least 26 weeks, parked her car on the East side of 20th Street, next to the station; how near to the 20th Street entrance depending upon where space was available. On this particular day, it was available 10 to 12 spaces South of the 20th Street entrance. Other women messengers also parked their cars in this same area. Spaces near the entrance were restricted for use by persons having business in the station, but those spaces were filled upon plaintiff’s arrival.

During the time plaintiff had been parking in this area, she had never been accosted or threatened before, and she had never seen anyone else have such experience; nor does the record show that during the entire year immediately preceding this occurrence, that any person had been accosted, attacked or robbed in this area. The police records of the City and Terminal Police Department disclosed that in the area of the station, and the parking lots east of the station, 39 Part I crimes were committed during the year 1962. An analysis of these disclosed that they consisted of 14 thefts of accessories of the value of $5 or less from cars (one from a bicycle); 5 thefts of accessories of the value of $50 or more from automobiles; 9 automobiles were stolen (7 of which were returned within 48 hours after joy riding); and a building on the West side of 20th Street was burglarized in the night with nothing taken; and 10 arrests were made inside of the station. Of these 10 persons apprehended, 2 were charged for peace disturbance, 3 were removed for loitering, 3 were removed for trespassing, 2 were apprehended for stealing small articles from Harvey’s, and 1 was found entering an office in the station building at night. There was testimony by the Chief of Police of the Terminal Railroad Association, whose office was in the station, that for 15 years previous to this occurrence, no women, to his knowledge and record, had ever been robbed or assaulted in or at the station. The records of the City revealed no crimes against the person in the area, during the year 1962. A record of plaintiff’s being robbed was made by the Terminal Police Department within 45 minutes after its occurrence, and had become a permanent part of the City records within 3 hours of the occurrence.

Plaintiff testified that in the six-month period preceding this occurrence that she had “on several occasions” seen railroad detectives taking drunks and undesirables out of Union Station, and that she had observed the person taking coins from coin boxes and lockers in the station accompanied by a detective. The Chief of Police of the Terminal Railroad, who was responsible for policing the station, had 36 employees. They kept “one man on each shift in the Union Station building and one man in the train shed and subway on each shift.” He testified that during 1962 there were 35 to 40 arrests, including the 10 Part I crimes shown by the city records, in the entire terminal which included the train shed, coach yard, mail facilities, Railway Express building and subway, (basement beneath the building proper), as well as the station proper.

There was testimony that approximately 7,500 people passed through the station on the day of the attack on plaintiff, and that during 1962 some 85,000 cars had been parked in the parking area on the West side of 20th Street which was operated by the Terminal Association; that the restricted parking area extending 270 feet on the East side of 20th Street, South from Market Street, was supervised by the Terminal, but that the area beyond it, in which plaintiff had parked, was not under the Terminal’s control.

Despite the uncontradicted evidence that in 15 years no woman had ever been robbed or assaulted in or at the Union Station, and the uncontradicted evidence that no crimes against the person had been committed in the area during 1962; the fact remains that plaintiff was robbed and assaulted in the area. While we might not conclude from the evidence, that the area was decadent, or that the incidence and nature of the crimes previously committed in the area were of serious consequence; the criminal acts to which plaintiff was subjected, to her, were of serious consequence, and despite evidence of the area being policed, it was not sufficiently policed to protect plaintiff on this occasion.

Even though we might reach different conclusions from the evidence presented, our conclusions would not govern when reasonable men have and could conclude otherwise. Whether the jury concluded that the area was decadent, or frequently habituated by persons disposed to crime and violence, or whether the area was not a safe place to park, we are unable to determine. They obviously concluded at least one of these things, and concluded that defendant had not, therefore, furnished plaintiff a safe place to work, and concluded that the danger was one which the defendant should have foreseen. Despite defendant’s evidence, the jury may have concluded that the immediate vicinity of the side of a railroad station, on a dead-end street, along a fence between the street and railway tracks, is not a safe place for a woman employee to park her automobile, or be unescorted, with items in her possession that persons might consider to be of value to them; such conclusions might come from their own knowledge and experience, coupled with the slightest of evidence to support them.

In this FELA action, federal decisional law governs in determining whether the evidence requires submission to the jury (Rogers v. Missouri Pac. R. Co., 352 US 500, 77 S Ct 443) and whether negligence and proximate cause are shown (Urie v. Thompson, 337 US 163). In the Eogers case, supra, the Supreme Court of the United States said at 77 S Ct 448-449:

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The Statute expressly imposes liability upon the employer to pay damages for injury or death in whole or in part to its negligence.
“The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more that the single question whether negligence of the employers played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.”

Another leading case interpreting the Federal Employers’ Liability Act is Gallick v. Baltimore & Ohio R. Co., 372 US 108, 83 S Ct 659. It deals in particular with the function of the jury in FELA cases, and the right of the jury to conclude what is reasonably foreseeable. In that case, the petitioner was a spotting crew foreman working along the railroad’s right-of-way. At the particular stretch of roadbed where the petitioner was working on the afternoon in question, there had been for many years a pool of stagnant water. While he was temporarily working near the pool, the petitioner experienced an insect bite on his left leg just above the knee. This wound subsequently became infected and the infection failed to respond to medical treatment and it became necessary to amputate both petitioner’s legs. The trial court entered judgment for the petitioner. However, the Court of Appeals reversed and held that judgment for the railroad should have been entered on a directed verdict because the trial evidence was insufficient to support a judgment for the petitioner.

The Supreme Court of the United States in that decision at 83 S Ct 663 said:

“We think that the Court of Appeals improperly invaded the function and province of the jury in this Federal Employers’ Liability Act case. According to the Court of Appeals, the break in the causal chain that turned it into a mere ‘series of guesses and speculations’ was the want of evidence from which the jury could properly conclude that respondent’s fetid pool had had something to do with the insect that bit petitioner. The only question was whether or not the insect was from or had been attracted by the pool. We hold that the record shows sufficient evidence to warrant the jury’s conclusion that petitioner’s injuries were caused by the acts or omissions of respondent.”

In the Gallick case, the court quoted with approval from Tennant v. Peoria & P. U. Ry. Co., 321 US 29, 64 S Ct 409, to point out that the jury weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instruction and draws the ultimate conclusions as to the facts. It was in Tennant, supra, that the court said:

“That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to re-weigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”

As in Gallick, supra, the defendant railroad here has argued that plaintiff’s injury was not reasonably foreseeable and therefore there was no negligence. Defendant, in Gallick pointed out that past experience in the area, established that no occurrence of the kind there alleged, either occurred or was known by the defendant railroad to have occurred. In the present case, the defendant urges that it was not aware of any assault on women in the Union Station area prior to the assault on plaintiff; in fact, the evidence was that there had been no attack or robbery in the area in the past year, and no attack upon or robbery of women in the past 15 years, “in or at” the station, and therefore the assault on plaintiff was unforeseeable and the railroad was not negligent.

The Supreme Court answered this contention in Gallick, supra, when at 83 S Ct 667 it said:

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

We recognize that Gallick can be distinguished by the fact that there, the defendant had maintained the stagnant pool on its property near the place where its employees were required to work. Here, defendant has done nothing on its property, or on the public streets of the City of St. Louis, which maintained any hazard to its employee. But we are compelled also to recognize, that in Gallick, the jury by answer to special interrogatories, put themselves on record, as finding that the railroad did not have reason to anticipate that its maintenance of the pool would or might probably result in a mishap or injury; and that the railroad could not foresee that the stagnant pool would set off a chain of events that would culminate in Gallick’s injury and permanent disability; while by another interrogatory they determined the railroad to be guilty of negligence. The court, repeating that reasonable foreseeability of harm is an essential ingredient of negligence under FELA, held that this requirement was satisfied by the jury’s finding of negligence in maintaining the filthy pool of water. We have no special interrogatories in the present case, and the jury by their verdict has found for the plaintiff and against the defendant, in this case in which they were properly instructed that injury resulting in whole or in part from the negligence of defendant, rendered defendant liable.

The Supreme Court in Gallick pointed out that for a defendant to be liable for consequential damages, the defendant need not foresee the particular consequences of the acts or omissions, which the jury found to be negligence, and said that “assuming the existence of a threshold tort against the person, then whatever damages flow from it are recoverable,” (83 S Ct 667, citing authorities). Under FELA, where the tortfeasor is liable for injuries incurred by reason of its negligence, even the slightest in nature, the tortfeasor must compensate its victim for even the improbable consequences of its acts or omissions. (Gallick v. Baltimore & Ohio R. Co., supra, and cases cited therein.)

Defendant has urged that Inman v. Baltimore & Ohio R. Co., 361 US 138, 80 S Ct 242, and the cases which it cites, should control the present case. In that case the plaintiff, a crossing watchman employed at defendant’s crossing for seven years, was injured when an automobile driven by an intoxicated person passed a line of cars stopped at the crossing and struck plaintiff as he was standing in the middle of the street, a few feet from the tracks, swinging his lantern to warn traffic of the approach of defendant’s trains. No accidents had occurred at the crossing during plaintiff’s employment, nor had plaintiff ever complained to the railroad that the crossing was unsafe. A judgment in plaintiff’s favor was reversed by the Ohio Court of Appeals, and the Supreme Court of the United States affirmed, holding that in the absence of testimony of any similar occurrences and of any corn-plaint to the railroad, that the crossing was an unsafe place to work, there was no proper basis for the jury’s verdict, pointing out that the Act did not make the railroad an insurer, and concluded that “the evidence was so thin that, on judicial appraisal, the conclusion must be drawn that negligence on the part of the railroad could have played no part in petitioner’s injury.”

In view of the language used in the Gallick opinion, which makes no mention of Gallick ever complaining to the railroad about the stagnant pool, filed in 1963, we observe that the Inman opinion was filed 4 years earlier, in 1959, and is cited in the Gallick opinion, as authority for the statement that reasonable foreseeability of harm is an essential ingredient of FELA negligence. It is also interesting to note that in Gallick, as in Inman, the Ohio Court of Appeals reversed the plaintiff’s judgment; in Inman the Supreme Court affirmed the Ohio Court and 4 years later reversed it in Gallick — both were cases in which the Ohio Court had reversed a plaintiff’s judgment on the theory that there was no negligence, because there was no reasonable foreseeability of harm to the employee.

Defendant also urges that Ambold v. Seaboard Air Line R. Co., 345 F2d 30 (4th Circuit 1965, cert den Oct 11, 1965, 86 S Ct 70) in which a plaintiff was denied recovery. There the court cited Inman as authority for the proposition that FELA does not make the railroad an insurer; there was no evidence of complaint to the railroad, or testimony of similar occurrences. There is a basic difference of facts which distinguishes Ambold from the present case, as in Ambold it appears quite conclusively that plaintiff’s negligence was the sole cause of his injuries; Ambold’s explanation was that he “simply misjudged the distance and did not take long enough step.” In the present case, there is no showing of plaintiff’s negligence.

The Inman case was relied upon for the court’s decision in Simpson v. Texas & New Orleans R. Co., 297 F2d 660 (5th Cir 1962). The District Court dismissed plaintiff’s complaint and the Court of Appeals affirmed the dismissal. The complaint charged that while plaintiff, a messenger, was riding a motorcycle, which the railroad furnished him, from the railroad’s office to its terminal to pick up the mail, the motorcycle broke down. The complaint alleged that plaintiff called his supervisor who instructed him to take a bus to the terminal. As plaintiff alighted from the bus in a heavy rain he was struck by an automobile and injured. He charged the railroad was negligent in failing to provide him a safe means of transportation, in not keeping the motorcycle in a safe and workable condition, in not repairing it and in failing to provide plaintiff with proper protection from the weather. There the court held that the chain of causation between the breakdown of the motorcycle and any subsequent occurrence was effectively broken, and that under the circumstances there present, the railroad had no duty to shield its employee from ordinary traffic hazards. In the case at hand, there is no break in the chain of causation, and plaintiff’s injuries arose as a result of an occurrence that is considerably more than an ordinary traffic hazard.

Even though this record shows no crimes of a similar nature in the area, reasonable men might be apprehensive of sending a woman, unaccompanied into the area where plaintiff found it necessary to park her car. The Terminal Association had felt it necessary to keep police officers on duty in and at the station at all times due to the diversity of moral character of the many people who use and frequent the area; although the record shows a low incidence of crime, there was a showing of some crimes in the area. We, therefore, cannot say that the proof does not justify, with reason, the conclusion which the jury obviously drew, that employer negligence played some part, even the slightest, in producing the injury of plaintiff. Accordingly, the trial court, properly denied defendant’s motion for a directed verdict, and judgment notwithstanding.

In support of defendant’s position that this case should be remanded for a new trial, defendant has complained of two of plaintiff’s instructions given by the trial court. The first is Plaintiff’s #14, IPI 160.09, which is the PELA, no assumption of the risk, instruction. Defendant, of course, did not, and could not plead assumption of the risk in PELA, and defendant urges it was not an issue in the case. Defendant has cited Gowins v. Pennsylvania R. Co., 299 F2d 431 and De Pascale v. Pennsylvania R. Co., 180 F2d 825; in both those cases the court held it was not error to refuse to give an assumption of the risk instruction in an FELA -case; they did not hold it was error to give the instruction. In Gilmore v. Toledo, Peoria & Western Ry. Co., 64 Ill App2d 218, 212 NE2d 117, the railroad argued that the trial court committed reversible error by giving an assumption of risk instruction. The Appellate Court said:

“Appellant contends that since it did not make assumption of risk an issue in the case, it was in error to give the instruction. Although Justice Frankfurter in a specially concurring opinion in Tiller v. Atlantic Coast Line Ry. Co., 318 US 54, 72, 63 S Ct 444, 87 L ed 610, did suggest that such an instruction should not be used, it was not deemed reversible error. (See Larson v. Chicago & N. W. R. R. Co., 7th Cir, 171 F2d 841, 846, and Wantland v. Illinois Central Ry. Co., 237 F2d 921 (7th Cir 1956), although the question was not directly involved in either decision.) Although appellant did not characterize the actions of appellee in terms of assumption of risk, it did however emphasize the duties of appellee and the relationship of these duties to the mishap. Accordingly, we find no error in the giving of this instruction.”

Here the evidence showed the length of time plaintiff had been a messenger, her daily route, and her numerous trips to the area, her bidding in the job, her possibility of having bid in other jobs. This was dwelt on in cross-examination, and from it, a jury could have reasonably inferred, that knowing her duties in the job, and the frequency that she visited the area, that she had assumed the risk. The instruction was a proper statement of the law and was properly given, and we hold that the instruction is properly given in an FELA case, if there is any evidence whatsoever from which it could be reasonably inferred that the employee had assumed the risk.

The second instruction complained of was Plaintiff’s #15, IPI 12.04, which was as follows:

“More than one person may be to blame for causing injury. If you believe that the defendant was negligent and that its negligence caused injuries to the plaintiff, it is not a defense that some third person may also have been to blame.”

The instruction has since been revised (See 1965 Additions and Revision IPI). Defendant urges that plaintiff’s case rested solely upon the theory that her robbery and injury were an integral part of defendant’s negligence in requiring her to go to the station area where defendant should have foreseen such an incident would happen, while defendant contended plaintiff’s assault was an entirely unforeseeable criminal act for which defendant had no responsibility. Defendant urges that the instruction destroyed its defense of lack of reasonable foreseeability. Defendant has cited no cases supporting his position with reference to this instruction. We have heretofore in this opinion, pointed out that in FELA, a lack of reasonable foreseeability of the particular consequences of defendant’s negligence, does not excuse the railroad from its responsibility, if in fact the jury reasonably found defendant to be negligent, and that negligence contributed to the employee’s injury. The jury was entitled to know that even though a criminal act of third parties actually caused the harm, that if the defendant railroad was negligent, then the act of the third parties is no defense to the railroad. The instruction did not tell the jury to consider defendant’s negligence separate and apart from the assault — only that if the defendant was negligent as charged, that then the fact that the actual harm was inflicted by third parties was no defense for the railroad. We do not consider the giving of the instruction error.

The closing arguments of plaintiff’s counsel were replete with improper accusations directed to the motives of defendant’s counsel in objecting to evidence which the court excluded. Plaintiff offered to prove the incidence of crime in a section of St. Louis referred to by the St. Louis Police Department as the Fourth District, an area of some 200 blocks, bounded by the Mississippi Kiver on the east, Jefferson Avenue on the west, Chouteau Avenue on the south and Maiden Lane on the north, without proof of where in this District any crime had occurred. The court held such evidence was inadmissible and sustained defendant’s objection to it. Although the court excluded this evidence, plaintiff’s counsel continued to refer to it in closing argument.

When defendant’s objection to this argument was sustained, plaintiff’s counsel, nevertheless, continued to accuse defense counsel of giving improper information, and not intending to give proper information with reference to the incidence and nature of crimes in the area and asserted that the only defense was a distortion of the records and facts, and suggested that defense counsel had kept evidence of criminal activity in the area from the jury.

In Forest Preserve Dist. of Cook County v. Alton R. Co., 391 Ill 230, 62 NE2d 701, where evidence regarding the sale price of property was excluded by the trial court and, thereafter, referred to by counsel in closing argument, the court in reversing plaintiff’s judgment, held, p 235:

“. . . With full knowledge that the court had sustained objections to evidence of such fact, counsel made an argument from which the jury could well draw the inference that appellants were withholding evidence from the jury that would be an important factor in determining the compensation to be awarded for the land in question. In arguing a case to a jury, counsel are privileged to discuss the evidence introduced and all reasonable inferences that may be drawn therefrom, but they should not undertake to create a prejudice against the opposing party by arguing that if evidence which the court has held inadmissible had been admitted, it would have been adverse to the opposing party. Such conduct is beyond the scope of proper argument. (Citing cases.) Where the court sustains an objection to a statement of counsel, it is the duty of counsel to desist from further argument of that character. (Citing cases.)”

In addition to improperly commenting on excluded evidence, plaintiff’s counsel made unwarranted characterizations of defendant’s counsel, in a successful effort to deprive defendant of fair treatment by the jury. Our views with reference to this type of argument are best expressed in Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 122, 126 NE2d 731:

“. . . We feel that the constitutional right of trial by jury is not a license to counsel to indulge in abusive and prejudicial conduct to gain a verdict, nor does it grant any privilege to embarrass, belittle, and abuse an adversary before a jury to such an extent that the hope of the adversary to obtain respectful consideration at the hands of the jury is destroyed or seriously jeopardized.”

Plaintifff’s counsel went so far as to refer to the political affiliation of one of defense counsel in an attempt to discredit him before the jury. A fair trial is not one in which the jurors’ attention is diverted or attracted from or to judicial considerations of the facts and the law, by the unnecessary injection of political questions, regardless of whether their response may be friendly or antagonistic. Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476, p 479.

Plaintiff’s counsel even recited to the jury that only recently in the city of St. Louis a woman “got her finger cut off and killed because they tried to take her ring off of her in the broad daylight” — entirely outside the record and clearly improper.

Although defendant neither offered or referred to any railroad records, and made no suggestion that an employee McMurtrey would be called as a witness, or if called what his testimony would be, plaintiff’s counsel told the jury:

“He says that we claim he’s jimmied the records. I’m going to prove in just a few minutes in the discussion of damages that he did attempt tc jimmy the pay records until we brought in this W-2 form. Had a fellow McMurtrey just foaming at the mouth ready to testify about her working 176 days. We’ve got a W-2 form showing she worked a lot more than this. I think this is sufficient evidence to let you feel they are not being square with us on these reports of crime.”

To further incite the jury’s prejudice against defendant, counsel colored their argument by comments concerning inadequacy of the mileage allowance, failure to give plaintiff 25 ‡ a day to keep her off the streets and not be harassed “by what everybody knows is happening in these big communities.”

Plaintiff seeks to avoid a new trial of this case which her counsel’s improper, prejudicial and inflammatory argument necessitates by suggesting that defendant’s objections thereto were not timely. She cites Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847, where the court said:

“No objection was made at the time the argument was made, nor was the court requested to take any action regarding the remarks until after the verdict.”

Defendant here did not wait until after the verdict to request the court to take action. Defendant made numerous objections to plaintiff’s counsel’s closing argument, and immediately at its conclusion moved for a mistrial.

Defendant’s objections to the closing arguments of plaintiff’s counsel were both adequate and timely. Had they been otherwise, the impropriety of such arguments would, nevertheless, be a proper subject for review here. Underwood v. Pennsylvania R. Co., 34 Ill2d 367, 371, 215 NE2d 236.

Although the court sustained objections to many of the statements which were made, the cumulative effect of the improper and prejudicial argument clearly deprived defendant of the fair trial to which it was entitled.

In Hayes v. New York Cent. R. Co., 328 Ill App 631, 67 NE2d 215, the court said, p 640:

**. . . The general rule is that a judgment obtained by appeals to passion and prejudice and unfair conduct of the plaintiff’s attorney will be reversed and remanded for another trial. People v. Bimbo, 314 Ill 449; Coal Creek Drainage & Levee Dist. v. Sanitary Dist. of Chicago, 336 Ill 11, 45. The Federal courts enforce the rule quite strictly. In Minneapolis, St. P. & S. S. M. R. Co. v. Moquin, 283 US 520, the Supreme Court of the United States said:
“ ‘In actions under the federal statute no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice.’
“In New York Cent. R. Co. v. Johnson, 279 U. S. 310, 318, the same court said:
“ ‘The public interest require that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict uninfluenced by the appeals of counsel to passion or prejudice.’ ”

Plaintiff’s verdict was responsive to the inflammatory and unfair argument of her counsel. A verdict so founded on appeal to prejudice should not stand. The refusal of plaintiff’s motion for a new trial was error.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.

       The records of the police department were divided into two parts. Part I crimes were those of murder, rape, robbery, aggravated assault, burglary, pocket picking over $50, purse snatching over $50, shoplifting over $50, theft from an auto, auto accessory, bicycle larceny, permanent retention of auto theft, and joy riding of auto theft. Part II crimes included prostitution, liquor, drunkenness, narcotics, gambling, forgery and counterfeiting, embezzling, carrying a concealed weapon, sex offenses, crime against family, disorderly conduct, vagrancy and peace disturbance. A record of Part I crimes was available for the area generally described as the south half of Market Street, from 18th to 20th from Market to Clark, and the west half of 18th from Market to Clark and the Union Station area as it would be defined if Clark (parallel to, and approximately 2 blocks south of Market) had been extended through Union Station. The only record of Part II crimes covered the 4th District (approximately 200 city blocks). Plaintiff made an offer of proof, which was denied, to show that some 2,000 Part II crimes occurred in the 4th District in 1962. Statistical data was kept on Part I crimes, showing the block in which they occurred, with other details, but such data was not available on Part II crimes.