author: MR. JUSTICE SCHEINEMAN

text:
    Jacob Senko, Plaintiff-Appellee, v. LaCrosse Dredging Corporation, Defendant-Appellant.
    Term No. 55-M-21.
    Fourth District.
    October 3, 1955.
    Released for publication November 8, 1955.
    Bradley, Pipin, Vetter & Baton, of Chicago, and Pope & Driemeyer, of East St. Louis, for defendant-appellant.
    Moran & Beatty, of Granite City, for plaintiffappellee.
   MR. JUSTICE SCHEINEMAN

delivered the opinion of the court.

Jacob Senko brought this suit against his employer, LaCrosse Dredging Corporation, claiming that he had suffered personal injuries through the negligence of said employer. After a jury verdict of $30,000 for plaintiff, the trial court required a remittitur and entered judgment for $20,000. The defendant’s motion for judgment and for new trial were both denied.

The suit was filed under the provisions of Section 33 of the Merchant Marine Act of 1920, commonly known as the Jones Act, 46 U. S. C. A. Sec. 688. In substance, the Jones Act provides that seamen on vessels operating in navigable waters, who are injured in the course of their employment, shall have the same rights and remedies at law, which appertain to railway employees under other federal statutes. Questions presented on this appeal require a full statement of facts, and a review of the legislative and judicial background of the statute, since it is an unusual type of case in a state court.

Defendant operated a dredge on which plaintiff was employed. At the request of a labor union, defendant had erected a shed on land near its dredging operations, equipped with benches and a stove, so that, during off-duty intervals, the workmen would have a place to warm themselves and obtain shelter. The incident in question occurred in or near this shed on November 5, 1951.

About 10:45 p.m. plaintiff came from the dredge to the shed, where he heard another employee (the assistant superintendent) say that he would put some coal on the fire. This was done by removing a stove lid, picking up a coal bucket, and emptying the contents in the stove; Apparently' plaintiff did not actually see the operation, but the fire flared up with a great flash and both men ran out, colliding at the doorway and falling. Or perhaps plaintiff was just approaching the door from outside and was met by the running man. Plaintiff was somewhat - vague - as to the details, but anyway, he fell. He claims severe injuries resulted to ‘him. -

It is plaintiff’s theory that he is a seaman under the Jones Act, that there must have been something other than coal in the bucket to cause the flash, that he has not attempted to prove specific acts of negligence, but defendant should be held liable under the doctrine of res ipsa loquitur.

Defendant contends it is entitled to a directed verdict because: 1, plaintiff was not a member of a crew of seamen and is not under the Jones Act; 2, the dredge was not operating in navigable waters; and 3, there was no evidence of negligence on its part and no basis to apply the doctrine of res ipsa loquitur.

From examination of the abstract and briefs, we find no dispute as to the facts material to the first defense. It appears that, prior to plaintiff’s said employment, the dredging equipment had been brought to the site by a tug, during which movement the crew of the tug managed the dredge and provided it with navigation lights. The dredge was anchored about 15 feet from shore in Gabaret Chute, which is a slough connected with the Mississippi, the purpose being to dredge out a by-pass around a rocky section of the river through the slough to a canal connected to the river at another point.

The dredge consisted of a scow or barge upon which ■was mounted dredging machinery, pumps, dynamo, etc. It operated-day and night, so that.it had a lighting system, including the white mooring lights required on stationary objects. A pipe ran from the barge to the shore, through which excavated material was pumped and disposed of. The pipe rested on pontoons, and this formed a walk, with handrail, by which the men could come and go. There was also a rowbo.at, but the distance from shore was- too short- to row, so in using the boat, it was simply given a push to move it the few feet.

The dredge had- arms or poles called “spuds” which pushed into the bottom and held the position, and-there were also cables to the shore for additional anchorage. The barge could be moved slowly by operating the spuds in a walking fashion, also by winding the cables on a winch. Other than these contacts with the ground the barge had no means of locomotion.

Dredging operations were conducted by four men aboard, an operator, an engineer, an oiler, and plaintiff. Defendant did not furnish meals or sleeping quarters, all the men lived ashore, worked eight-hour shifts, were paid by the hour, and plaintiff drove back and forth daily from his home some 40 miles distant. Of the four men, the first three were members of a building crafts union, and plaintiff was a member of the Common Laborer’s Union at Mt. Olive. He secured this employment through the union hall at Granite City, and all four men had union permits to work at this particular site.

According to a witness permitted to testify as to the usual duties of a laborer or deckhand on a dredge, the duties were to clean the deck, also the navigation lights, and to take soundings when the barge was in motion. However, these items were not pertinent to the plaintiff, for there were no navigation lights on the dredge, and he had taken soundings only for the purpose of noting the depth of the cut. He had nothing to do with moving the barge and testified he had never been aboard when it was moved. He gave as his main duties the delivery of supplies and proper storage thereof, bringing them when needed, and sometimes taking things ashore where other men were working at earth moving.

From the foregoing, it is apparent that, by any ordinary test, the plaintiff would not classify as a seaman. However, the courts have enlarged the meaning of the term. It was often said that a seaman aiding in navigation was not limited to those who can “hand, reef and steer.” Thus it was easy to include all those who customarily traveled with a vessel in its movements, such as a cook, a clerk, a stewardess, etc. But the broadening of the definition continued, until it came to include practically any workman whose duties required bim to set foot on a ship at any time or place. Thus, longshoremen were designated as seamen, although they worked only at loading or unloading a vessel tied at the docks.

A longshoreman injured in the course of his duties on land would normally come under the state’s Workmen’s Compensation Act, but if the injury occurred on the vessel while it was in navigable waters, the state law could not apply, for the federal law had jurisdiction. These men were given some remedy by calling them seamen under the Jones Act.

Men who ply the seas, with its hazards, rigors and isolation, have long been regarded as wards of the court in admiralty, and this solicitude has been applied in courts of law. Men who board the ship only in the safety of a harbor, who work only an eight-hour shift thereon, who return to their families daily, and sleep in the comfort and security of their own beds every night are not in exactly the same position. Congress proceeded to enact new legislation, which was, in substance, a compensation act.

Possibly the men involved had something to do with the new legislation, since they were in position to observe the operation of both types of laws. The new law enacted by Congress, known as the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. A. Sec. 902 (1927), is patterned after prior compensation acts, provides recovery for personal injury in line of duty regardless of absence of negligence and makes the remedy limited and exclusive.

The legislative history of this act is reviewed in South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 60 S. Ct. 544, 84 L. Ed. 732. It appears that ships’ masters and crews preferred to remain under the Jones Act; accordingly, a provision was inserted in the new act excluding “seamen.” Obviously, under the prevailing definition of that word, practically everybody that Congress intended to include, would have been excluded. As finally passed, the words “master or member of a crew” were substituted for “seamen.’.’ The Supreme Court held the purpose was:

“to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen, were still regarded as distinct from members of a ‘crew.’ They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation.”

In the above case the man involved had the primary duty of loading coal on vessels in harbor, but he was aboard the fueling vessel when it was in motion, he was called a “deckhand” and occasionally had incidental duties in connection therewith, such as throwing a ship’s rope or making the boat fast. The court attached no significance to his title and held these were duties which could readily be performed or aided by a harbor worker, and that he came under the compensation act, rather than the Jones Act, observing: \.

.“that the primary duty of the decedent was to facilitate the flow of coal to the vessel being fueled, that he had no duties'while the boat was in motion, that he slept at home and boarded off ship and was called each day as he was needed. Workers of that sort on harbor craft may appropriately be regarded as ‘in the position of longshoremen or other casual workers on the water.’ ”

The legislative history of these acts and the interpretation thereof was repeated in Swanson v. Marra Bros., 328 U. S. 1, 66 S. Ct. 869, 90 L. Ed. 1045 (1946). The man involved was engaged in loading cargo onto a vessel in Philadelphia harbor, and he was struck by a liferaft falling therefrom while he was on the pier. The suit was brought under the Jones Act and was dismissed by the trial court. The decision was affirmed on intermediate and final appeals. The Supreme Court recognized that the suit would have been proper under the Jones Act according to its own decisions prior to the passage of the Longshoremen’s Act of 1927, making-particular reference to International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157, decided only six months before passage of the new statute. The court ruled:

“We must take it that the effect of these provisions of the Longshoremen’s Act is to confine the benefits of the Jones Act to members of the crew plying in navigable waters and to substitute for the right of recovery, recognized by the Haverty case, only such rights to compensation as are given by the Longshoremen’s Act.”

Other cases on the subject are similar in effect, see particularly, Walling v. Bay State Dredging & Contracting Co., 149 F.2d 346, 161 A. L. R. 825, certiorari denied 326 U. S. 760, 66 S. Ct. 140, 90 L. Ed. 457.

This court therefore holds as a general proposition: an employee whose principal duty is to load supplies on a vessel at anchor, and to perform incidental tasks of a common labor character, and who is not naturally and primarily on board to aid in navigation, cannot maintain an action under the Jones Act.

Further, as to this particular case: it being undisputed that plaintiff lived and boarded ashore, worked the hours of laborers only, was paid by the hour, had the primary duty of loading material and supplies bn board, or unloading them, and of performing various other incidental common labor tasks, and who was not employed for nor used in the movement of the vessel from place to place, and was not aboard except when the vessel was anchored, he cannot maintain an action under the Jones Act.

Further, that the provision of law making the compensation act the exclusive remedy of employees on vessels other than the master and members of the crew, is binding on the court, and cannot be evaded by asserting that a jury’s notion of what law should be applied nullifies that provision, where there is no substantial dispute as to the relevant facts.

Cases which plaintiff contends are contrary to the foregoing holding have been considered by this court, particularly the Circuit Court cases upholding verdicts under the Jones Act, namely, Gahagan Const. Corp. v. Armao, 165 F.2d 301; Kibadeaux v. Standard Dredging Co., 81 F.2d 670; McKie v. Diamond Marine Co., 204 F.2d 132; Maryland Cas. Co. v. Lawson, 94 F.2d 190; Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383.

These cases cannot be regarded as in point, for the reason that they all involve employees who customarily accompanied the vessel on its voyages, whether extended or daily. This court does not hold that members of the crew or those aiding in navigation consist only of those who “hand, reef and steer.” It is to be doubted employees who sign on for a voyage are excluded from the Jones Act, whether they be cooks or sometimes laborers.

Possibly phrases can be plucked from these opinions as indicating a tendency to broaden the definition of “crew” or of “aiding in navigation,” but there will necessarily be close cases of employees traveling with the vessel. In the Gahagan case the plaintiff ate and slept on board on a trip from New York to Boston, worked out in the sea harbor when the tide permitted, and had some regular duties of a maritime nature.

In the Kibadeaux case the vessel went from port to port around the entire coast, and plaintiff was paid on a semimonthly basis, like other members of the crew. The McKie case, by a divided court, involved a dredge which traveled about in Tabb’s Bay off the Texas coast, and plaintiff worked at whatever travel there was by the vessel. In the Maryland Casualty Co. case the plaintiff was actually a common laborer, but he necessarily went to sea with the outfit, ate and slept aboard, making more or less regular runs with the crew. In the Wilkes case the court noted that the plaintiff had a permanent connection with the vessel such as to expose him to the same hazards of marine service as those shared by all aboard.

Whether these cases should be regarded as close or as encroaching on enacted legislation is immaterial, they do not apply to a plaintiff employed under a union permit to perform common labor on a local project, and whose duties are performed while the outfit is securely attached to the ground.

Since the plaintiff is not under the Jones Act, it is unnecessary for this court to pass upon other points raised.

In conclusion, it may be observed that plaintiff is not without remedy. The injuries occurred on land, so that the case is not confined to federal jurisdiction. The record discloses that plaintiff actually filed a claim with the Illinois Industrial Commission, and at a proceeding before its designated hearing officer plaintiff and defendant stipulated they were under the Illinois compensation act and that defendant had made payments thereunder including medical and hospital expenses, and 14 weeks’ temporary and total disability compensation. We did not deem it necessary to make this any part of the decision herein.

For the reasons given, the judgment is reversed.

Judgment reversed.

BARDENS, P. J. and CULBERTSON, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE CROW

license: Public Domain

text:
    Cynthia K. Casey, Plaintiff-Appellee, v. Donald Burns, Doing Business as Don’s Tap, Defendant-Appellant.
    Gen. No. 10,843.
    Second District.
    October 11, 1955.
    Rehearing denied November 10, 1955.
    Released for publication November 11, 1955.

      Bozeman, Moran & Klockan, of Moline, for appellant; Bernard J. Moran, and Hubbard B. Neighbour, both of Moline, of counsel.
    Elmo E. Koos, of Peoria, for appellee.
   MR. JUSTICE CROW

delivered the opinion of the court.

This is an appeal by the defendant, Donald Burns, from a judgment entered on a verdict of a jury in favor of the plaintiff in the sum of $1,500, in a suit for damages under the so-called Dramshop Act, (Ch. 43, Ill. Rev. Stats. 1953, par. 135 [Jones Ill. Stats. Ann. 68.042]). The plaintiff wife, Cynthia K. Casey, claimed injury to her means of support in consequence of the intoxication of her husband, Frederick Casey, allegedly caused by the sale of alcoholic liquors by the defendant to the plaintiff’s husband, and that as a direct and proximate result of such intoxication the plaintiff’s husband was allegedly struck about his head and body by one Virgil Osborn and James Collins, thereby causing serious injury and disability to her husband and injury to the plaintiff in her means of support.

The defendant moved for a directed verdict at the close of the plaintiff’s evidence and at the close of all the evidence, and moved for judgment notwithstanding the verdict, which motions were denied, and the denial of those motions is the only error relied upon on this appeal. The defendant is not seeking a new trial. The principal grounds for reversal here urged are that the plaintiff failed to prove that Casey’s injury and the plaintiff’s loss of means of support were the proximate result of the intoxication, that the verdict cannot stand because it is not, in this respect, supported by competent proof, inasmuch as the only evidence tending to establish that the intoxication was the proximate cause of Casey’s injury and the plaintiff’s loss of means of support was incompetent and inadmissible, and that if such evidence was competent and admissible then the evidence shows that an intervening and unforeseeable agency, a wilful, wanton, and malicious act of someone else, and not the intoxication, was the proximate cause of the injury to Casey and to the plaintiff’s means of support.

The plaintiff’s husband, Casey, called as a witness for the plaintiff, testified that he entered the .defendant’s tavern, in Peoria, known as Don’s Tap, about 1:15 to 1:30 o’clock p. m., June 29,1952. Burns’ stepfather was tending bar until 3:00 or 4:00 p. m. A bartender named Osborn came to work about 3:00 p. m. Casey purchased six to ten bottles of beer and had 6 to 8 drinks of whiskey, spending about $5 in all. These drinks he purchased from Burns’ stepfather or Virgil Osborn, a bartender then employed by defendant. The last thing he can remember, before later waking up in a hospital, is ordering a drink and not having enough money to pay for it, and someone at another table saying: “I’ll pay for your drink.” The defendant Burns was not in the tavern when Casey was there.

The evidence further shows that Casey was found by the Peoria police (including Police Officer Crider) after a call to go to Don’s Tap, at 9:21 o’clock p. m., June 29th. Casey was found by the police lying flat on his back along a fence in an areaway about 20 feet from the rear door of the defendant’s tavern, unconscious, breathing hard, his head and face bloody, with many cuts and bruises about his eyes and left side of his head and face. The police noted the odor of alcohol on his breath. He was sent by ambulance to a hospital. The police then went to the police station, arrived there about 10:30 p. m., and while there Police Officer Crider and the defendant Burns had a conversation, to which we refer hereinafter, certain other police officers being present at the time.

Police Officer Crider was a witness for the plaintiff. The principal, if not only, evidence tending directly to prove the specific means by which Casey was injured was that of Officer Crider. He testified, over the objections of the defendant, that the defendant Burns, aboiit 10:30 o’clock p. m., on June 29th, in the Peoria police station turned over a blackjack and a knife to the police; told Crider the knife was owned by .Casey, the blackjack was one that was kept behind the bar at the tavern; that he (the defendant) was not there at the time; he got the blackjack from behind the bar; that he knew what had happened to Casey; told him (Crider) that his bartender (Osborn) had struck Casey with a blackjack that he had kept behind the bar; Crider further testified that the defendant Burns was at the station about 20 minutes, then returned to the tavern with the police, turned a blackjack over to them which he said he got from underneath the bar, and in handing over the blackjack the defendant said: “This is the one Osborn hit Casey with.” Officer Crider further said the defendant Burns told him he knew what had happened to Casey by a customer that was in the place at the time and by one of the bruises involved in using the blackjack, but the Court sustained the defendant’s objection to that question and answer so far as what the defendant knew that came from a customer, and struck that part of the witness’ answer.

The defendant Burns, called by the plaintiff ■ under Sec. 60 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060], was cross-examined by the plaintiff’s counsel, and then also examined by counsel for the defendant, who brought out the testimony that Osborn had told him (the defendant) that Casey came in the tavern intoxicated, and because he was intoxicated he (Osborn) refused to serve him. The defendant Burns also testified, so far as material, that Osborn was his employee, and worked at the place the date in question until 9:00 o’clock p. m. ; that Casey had been a casual patron, in and out of the place, during the year prior to June 29, 1952; that he came in two or three times a week; that when he was sober he was all right, hut if he had too much he was rather obnoxious; that (over the defendant’s objections) the defendant talked to Osborn the evening of June 29th after the defendant returned to the tavern at about 9:30 p. m.; the defendant “understood” when he came in that Casey had been taken to the hospital; Osborn mentioned that Casey had been in and he refused him a drink; the defendant went to the police station that evening, where he talked to; some police officers, but made no “statement” regarding Casey; and Osborn is not now employed by the defendant.

It also appears, for whatever its significance may be, that Casey has a suit pending in the Circuit Court of Peoria County for assault and battery against Burns and Osborn, — Casey v. Burns, No. 41613, at law,— which is undetermined.

Donald Burns, the defendant, did not testify in chief as a witness for the defendant. Nor did Virgil Osborn, the defendant’s bartender, testify as a witness for the defendant.

There appears to be no question but that the plaintiff is the wife of Casey, that she was dependent on him, that Casey was intoxicated at the time and place in question, that the defendant by selling or giving him alcoholic liquor caused the intoxication, in whole or in part, that Casey was hurt and disabled, and the plaintiff has been injured in her means of support. The basic issue seems to be whether such injury was “in consequence of the intoxication,” i. e., whether Casey’s intoxication was the proximate cause of his being hurt and disabled and the plaintiff being so injured in her means of support: Whiteside v. O’Connors (1911), 162 Ill. App. 108; Hill v. Alexander (1944), 321 Ill. App. 406. Under the circumstances, the question presented by the appeal, therefore, is the rather narrow issue of whether there is any competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorable to the plaintiff, tending to prove, and from which the jury might reasonably find, that the plaintiff was injured in her means of support “in consequence of the intoxication” of her husband Casey, as a proximate result of the intoxication. On this record we are not concerned with the weight or credibility of the evidence. Reasonable inferences may be drawn by a jury from established facts, and a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence. Only where there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for judgment notwithstanding the verdict: Lindroth v. Walgreen Co. (1950), 407 Ill. 121; the principles applicable on such a motion are the same as on a motion for a directed verdict, and are well settled: Neering v. Illinois Cent. R. Co. (1943), 383 Ill. 366; Blumb v. Getz (1937), 366 Ill. 273; Ciuferi v. Bullock Min. Co. (1947), 332 Ill. App. 1.

The defendant claims that the testimony of Officer Crider as to the occurrences and declarations related by Burns, purporting to be on the knowledge of Burns, was incompetent as admissions against interest because Burns’ knowledge of what happened or what, if anything, Osborn did was apparently based upon what some tavern customer or Osborn had told him (Burns), and such occurrences and declarations related to matters not within the defendant’s own personal knowledge and are hearsay.

The defendant cites no Illinois authority in support of his position in that respect, although he does refer to a few eases in other jurisdictions, — Pennsylvania, Alabama, North Carolina, New York, Tennessee, Utah, and Missouri,- — to the effect, in substance, that an admission against interest by a party to a suit is not competent or admissible when based on something someone else has told the party and where the party has no personal knowledge of the subject matter.

The general rule, and the greater weight of authority, however, is to the contrary. Ordinarily any admissions against interest of a party to the suit relative to the subject matter of the suit, tending to prove or disprove any material fact, are competent and admissible as original, substantive evidence against that party when inconsistent with the claim or defense he asserts in the suit. The law holds everyone responsible for what he says to the extent that his sayings may be used as evidence against him of the truth of what he has said. And, by the greater weight of authority, an admission by a party constitutes competent, admissible evidence notwithstanding the party may have had no personal knowledge of the subject matter, but the lack of knowledge affects the weight of such evidence: 20 Am. Jur. (Evidence) pp. 460-461; 31 C. J. S. (Evidence) pp. 1023-1025, 1027, 1091; ordinarily such admissions against interest by a party when made outside of Court are not conclusive on the party against whom they are offered and they may be explained, rebutted, or contradicted by other proper evidence: 31 C. J. S. (Evidence) p. 1164; such admissions are to be considered and weighed by the trier of the facts like other evidence, in the light of all the evidence in the case, and if voluntarily made and properly proved they may dispense with the necessity of further proof of the fact admitted: 31 C. J. S. (Evidence) p. 1178.

It is always competent, as substantive evidence, to prove a voluntary admission of the opposite party in interest to his prejudice, where it relates to matter material to an issue being tried, and such is not objectionable as hearsay: Brown v. Calumet River Ry. Co. (1888), 125 Ill. 600; Van Meter v. Gurney (1926), 240 Ill. App. 165; Stump v. Dudley (1918), 285 Ill. 46; Johnson v. Peterson (1911), 166 Ill. App. 404; Second Borrowers’ & Investors’ Bldg. Ass’n v. Cochrane (1902), 103 Ill. App. 29; the declarations of a party are admissible in evidence against him on the principle that what he says against his interest may be considered as true, —such admissions are to be received and considered by the jury in connection with the other evidence in the case and it is the province of the jury to determine what weight shall be given them: Dufield v. Cross (1851), 12 Ill. 397. Admissions of a party outside of court, where no elements of estoppel are involved, are not conclusive on the party and the party may disprove them by other evidence: Ayers v. Metcalf (1886), 39 Ill. 307; Young v. Foute (1867), 43 Ill. 33; Ray v. Bell (1860), 24 Ill. 444. We are unable to conceive of any reasonable theory that would completely exclude evidence of voluntary, material admissions of a party against his interest and tending directly to support the other side’s theory of the case: Fitzgerald v. Coleman (1904), 114 Ill. App. 25. Admissions may be implied from conduct, as well as expressed by words, and may sometimes be implied from mere silence where there is opportunity to act or speak and where the circumstances properly and naturally call for action or reply from men similarly situated: Bell v. McDonald (1923), 308 Ill. 329.

We find no distinction in the foregoing representative group of Illinois cases, so far as competency and admissibility in evidence is concerned, between voluntary admissions as to material facts of a party having personal knowledge and a party not having personal knowledge of the subject matter of the admissions. In either case the admissions are competent and admissible. The weight of such evidence is, however, like any evidence, to be determined by the jury or trier of the facts and the party’s lack of personal knowledge of the subject matter, or some part of it, if such is the case, may properly be considered in determining the weight thereof.

The admissions against interest by the defendant, as testified to by Officer Crider, were, therefore, competent and admissible as such, even though to some extent they may have related to matters not within the defendant’s own personal knowledge. The weight to be attached thereto, however, was for the jury to determine. The defendant was not conclusively bound thereby, though, and was at liberty to endeavor to explain, rebut, or contradict the alleged admissions. The defendant, however, did not testify in chief as a witness for himself, and Osborn, his bartender, did not testify for the defendant.

What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all the evidence and attending circumstances, — it can arise as a question of law only when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from the facts: Phillabaum v. Lake Erie & W. R. Co. (1924), 315 Ill. 131. An intervening, efficient cause is a new and independent force, the intervention of which was not probable or foreseeable by the first wrongdoer, which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury: Phillabaum v. Lake Erie & W. R. Co., supra; Neering v. Illinois Cent. R. Co. (1943), 383 Ill. 366. Where the party responsible for the initial act knows or should know that, if an occasion is given, a particular so-called intervening cause will be likely to exert itself, the furnishing of such an occasion may be in itself an act causing such party to be liable for the result flowing as the effect of such intervening cause, where the intervening cause is within the control of the party responsible for the initial act: Phillabaum v. Lake Erie & W. R. Co., supra. The intervention of independent, concurrent, or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable: Neering v. Illinois Cent. R. Co., supra; O’Brien v. Musfeldt (1951), 345 Ill. App. 12.

In Neering v. Illinois Cent. R. Co., supra, a personal injury case, the Court held the plaintiff could recover damages for injuries suffered as a result of being assaulted by a third person, who had no connection with the railroad, while she was awaiting the arrival of a train at a station, and the Court held the abnormal criminal act of this third person was not an intervening cause breaking the chain of causation.

In Schroder v. Crawford (1880), 94 Ill. 357, an action under the Dramshop Act, the Court said it is not the intention of the statute that the liquor alone, of itself, exclusive of other agency, should do the whole injury, and held that a plaintiff widow could recover damages for injury to her means of support where her husband had become intoxicated and nothing was known of the circumstances of his death except that early the next morning his body was found on a railroad track, he having evidently been run over by a train, and there being two tracks between the place where he became intoxicated and his home, that such was a natural and reasonable consequence of the intoxication, that the intoxication was the proximate cause, and the intervening agency of the railroad cars was not the proximate cause.

In Haw v. 1933 Grill, Inc. (1938), 297 Ill. App. 37, an action under the Dramshop Act, the Court held a plaintiff wife could recover damages for injury to her means of support where her husband became intoxicated at a tavern, became noisy and boisterous, as he had done at that tavern several times before, and one of the tavern agents or managers struck and injured the husband in attempting to eject him, and it was immaterial whether the tavern agent’s act was wilful or accidental, for the intoxication of the husband was a contributing factor and a proximate cause of the injury, and the defendant must, under the circumstances, be presumed to have foreseen that its act of selling the liquor might have produced or been followed by the altercation in which the husband was injured, it not being necessary that the defendant should have foreseen the actual result, it being sufficient that such a result might reasonably occur.

In Zahn v. Muscarello (1948), 336 Ill. App. 188, a dramshop case, the Court held the plaintiff widow could recover damages for injury to her means of support, where the husband became intoxicated, was last seen alive about 8:30 p. m. of the day he was intoxicated when certain of his friends helped put him on board his docked tugboat in the river, and several days later his body was found in the river near the tugboat; that he came to his death in consequence of the intoxication, that such was the proximate cause of his death, and the cause of. death may be established by circumstantial evidence. There the Court held the evidence was sufficient to justify a verdict for plaintiff and further that the Trial Court properly denied the defendant’s motions for directed verdict and for judgment notwithstanding the verdict.

In Jones v. Keilbach (1938), 295 Ill. App. 598, and 309 Ill. App. 233, a dramshop case, the Court held the plaintiff mother could recover damages for injury to her means of support where the son became intoxicated, left the tavern at about 1:30 a. m., and was next found badly injured and helpless at 4:20 o’clock a. m. that morning by the police in a hole in a vacant lot adjacent to a sidewalk, 3% blocks from the tavern, in the opposite direction from his home, a board in a fence along the walk being loose at one end and down; that if the injury was received while intoxicated, through the agency of an outside force, and that force could not and would not reasonably have been brought into action except by reason of the intoxicated condition, the intoxication would be a contributing factor and would be the, or a, proximate cause; that an intervening cause does not exempt a defendant except when it severs all causal connection between the intoxication and the injury; that it is not indispensable that evidence of eyewitnesses be presented, and it was within the jury’s province to determine whether the plaintiff was entitled to recover.

And another somewhat similar case is Klopp v. Benevolent Protective Order of Elks, Lodge No. 281 (1941), 309 Ill. App. 145, in which the defendant was also held liable.

We do not believe the principal cases the defendant refers to, Shugart v. Egan (1876), 83 Ill. 56, and Schmidt v. Mitchell (1876), 84 Ill. 195, are inconsistent with our views, when considered in the light of the particular facts of those cases and also when the other and later cases referred to above are considered.

The issue or question of proximate cause here was a question of fact to be determined by the jury from consideration of all the evidence and attending circumstances, it was not a pure question of law, — and the jury has spoken by its verdict.

The inquiry here is whether the inference and result reached by the jury is one which is reasonable on the facts in evidence, not whether some other inference or conclusion might also have been reached: Lindroth v. Walgreen Co., supra. We consider appropriate what the Supreme Court of the United States said in Lavender v. Kurn (1945), 327 U. S. 645, 90 L. Ed. 916, at pp. 922-923—

“It is true that there is evidence tending to show that it was physically and mathematically impossible for the hook to strike Haney. And there are facts from which it might reasonably be inferred that Haney was murdered. But such evidence has become irrelevant upon appeal, there being a reasonable basis in the record for inferring that the hook struck Haney. The jury having made that inference, the respondents were not free to relitigate the factual dispute in a reviewing court. Under these circumstances it would be an undue invasion of the jury’s historic function for an appellate court to weigh the conflicting evidence, judge the credibility of witnesses and arrive at a conclusion opposite from the one reached by the jury. See Tiller v. Atlantic Coast Line R. Co. 318 US 54, 67, 68, 87 L. Ed. 610, 617, 618, 63 S. Ct. 444, 143 ALR 967; Bailey v. Central Vermont R. Co., 319 US 350, 353, 354, 87 L. Ed. 1444, 1447, 1448, 63 S. Ct. 1062; Tennant v. Peoria & P. U. R. Co. 321 US 29, 35, 88 L. Ed. 520, 525, 64 S. Ct. 409, 15 NCCA (NS) 647. See also Moore, ‘Recent Trends in Judicial Interpretation in Railroad Cases under the Federal Employers’ Liability Act,’ 29 Marquette L. Rev. 73.

“It is no answer to say that the Jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fairminded men may draw different inferences, a measure of speculation and conjecture is required on the part of those Whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.”

The judgment is, accordingly, affirmed.

Affirmed.

EOVALDI and DOVE, JJ., concur.


author: MR. PRESIDING JUSTICE LEWE

text:
    People of State of Illinois on Relation of Margaret P. Jansen et al., Petitioners-Appellants, v. City of Park Ridge, a Municipal Corporation, Fred Haack, Jr., and Willis F. Jones, Individually and as Mayor and Chief of Police, Respectively, of City of Park Ridge, Respondents-Appellees.
    Gen. No. 46,658.
    First District, Third Division.
    October 13, 1955.
    Released for publication November 10, 1955.
    Russell J. Topper, of Chicago, for appellants.
    Herbert R. Stoffels, of Chicago, for appellees.
   MR. PRESIDING JUSTICE LEWE

delivered the opinion of the court.

Petitioners, residents and taxpayers of the City of Park Ridge, filed a petition praying that a writ of mandamus issue to compel the respondent city, its mayor and chief of police to enforce ordinances which forbid vehicular parking in certain areas of the city. Upon respondents’ motion the petition was dismissed. Petitioners appeal.

The petition alleges that there was in effect in the city since 1934 an ordinance prohibiting vehicular parking in certain parkway areas of the city; that for a substantial period prior to the institution of this action there have been open and continuous violations of the parking ordinance and that the mayor and chief of police failed to enforce the parking ordinance after service upon them of written notice; that open and continuous violations are committed in two areas of Park Ridge described in a written notice attached to the petition.

In their motion to dismiss the respondents averred in substance that the duty on the part of the respondents as set forth in the petition is not specific in its nature and is not of such a character that the court can prescribe a definite act or series of acts which will constitute a performance of that duty; that the petitioners improperly seek to have the court control and regulate a general course of official conduct and enforce the performance of official duties generally with reference to violations of the law which would occur in the future, and that the petitioners seek to require the court to exercise supervision over municipal officials.

Petitioners’ contentions are that the enforcement acts in their nature and judicial definition are simple and require only that the chief of police ban parking in the specific parkway areas and even if complex the judicial difficulty must bow to the superior demands of public safety.

In People v. Dunne, 219 Ill. 346, the relators moved for leave to file a petition for mandamus seeking to compel the mayor of the City of Chicago to enforce a statute prohibiting the keeping open of dramshops on Sunday. In denying leave to file the petition the court said at page 348: “It will not lie where the court would have to control and regulate a general course of official conduct and enforce the performance of official duties generally. In such a case the court could not prescribe the particular act to be performed and enforce its performance. It is plain that in this case, where the court is asked to require the defendant to adopt a course of official action, although it is a course required by the statute and imposed upon him by the law, it would be necessary for the court to supervise, generally, his official conduct, and to determine in very numerous instances whether he had persistently, and to the extent of his power and the force in his hands, carried out the mandate of the court and performed his official duty.”

In People v. Busse, 238 Ill. 593, a petition for writ of mandamus was filed praying that the mayor of the City of Chicago be compelled to use the authority conferred upon him by the laws of the State or the ordinances of the City to enforce against one Kenna, who operated two saloons, the statute prohibiting the operation of saloons on Sunday. The court held that every objection to commanding the mayor to enforce the Sunday closing law with reference to seven thousand saloons as in People v. Dunne applies in a lesser degree to commanding him to enforce it with reference to one owner and two saloons.

Mandamus will not lie where to issue the writ would put into the hands of the court the control and regulation of the general course of official conduct or enforcement or enforce the performance of official duties generally. (Retail Liquor Dealers’ Protective Ass’n of Illinois v. Schreiber, 382 Ill. 454.) To the same effect see Board of Education of School Dist. 85½ v. Idle Motors, Inc., 339 Ill. App. 359.

In the present case as in People v. Busse, 238 Ill. 593, it is not sought to have the mayor and chief of police commanded to do a specific thing in reference to a violation of law which has already taken place, but the purpose is to compel them to enforce parking ordinances of the City so far as future violations of that ordinance are concerned.

The governing rule announced in the cases last cited has been fully sustained in other jurisdictions [see 64 A. L. R. 975] and in our view is decisive of the issues presented in this case. We have considered the other points urged and the authorities cited in support thereof but in the view we take of this case we deem it unnecessary to discuss them.

For the reasons given, the order dismissing the petition is affirmed.

Order appealed from affirmed.

FEINBERG and KILEY, JJ., concur.


author: MR. JUSTICE KILEY

text:
    Thomas Clark, a Minor, by Daniel Clark, His Father and Next Friend, Appellee, v. A. Bazzoni & Co., Inc., and Lawrence L. Kotin, as Administrator of Estate of Frank Ufnowski, Deceased, Appellants.
    Gen. No. 46,506.
    First District, Third Division.
    October 13, 1955.
    Released for publication November 10, 1955.

      John J. Maciejewski, of Chicago, for appellant; Charles D. Snewind, of Chicago, of counsel.
    James A. Dooley, of Chicago, for appellee.
   MR. JUSTICE KILEY

delivered the opinion of the court.

This is a personal injury action. Defendant Ufnowski died before trial and Lawrence L. Kotin, administrator of his estate, was made a party defendant. Verdict was for plaintiff for $12,500 and judgment was entered on the verdict. Defendants have appealed.

The accident occurred at the intersection of Van Burén Street and Kilpatrick Avenue in Chicago, Illinois at approximately 5 -.30 p. m. on January 24, 1950 when a truck, owned by defendant corporation and driven by Ufnowski, collided with a bicycle ridden by plaintiff, then twelve years old. Visibility was fair at the time, and although the streets were wet it was not raining.

There were only two occurrence witnesses at the trial, plaintiff and Lawrence Lajewski, a helper on the company’s truck. Plaintiff testified he entered the intersection going north on Kilpatrick Avenue at about one mile per hour, with a light burning on the fore part of his bicycle; that he saw the truck’s lights coming south on Kilpatrick at the intersection; and that suddenly the truck swung into the northeast quadrant of the intersection where it hit him. On the other hand, Lajewski testified that the truck was proceeding south on Kilpatrick at about fifteen or twenty miles per hour; that there was no traffic; that as the truck swung around to turn east on Van Burén Street the headlights revealed plaintiff; that he shouted to warn Ufnowski of the boy’s presence; that Ufnowski immediately stopped the truck; and that the plaintiff, whose bicycle had no light burning, rode into the left front wheel of the truck.

The questions on appeal are: whether improper evidence was admitted through the statements of the driver, Ufnowski, and by the testimony of plaintiff; whether the cross-examination of Lajewski was “improper and prejudicial”; whether plaintiff’s instructions were erroneous; whether there was any evidence of the defendant’s negligence; whether the verdict and judgment were contrary to the manifest weight of the evidence; and whether the damages awarded are grossly excessive.

Defendant corporation urges that Ufnowski’s statement to the police, made approximately one hour after the accident, was not in the scope of employment and not sufficiently connected in time with the event to be part of the res gestae. The same objections are directed toward the deposition taken from Ufnowski more than a year after the accident. The contentions are not relevant. Plaintiff is not attempting by introduction of these statements to establish either the fact of agency or the liability of the corporation as Ufnowski’s principal. Plaintiff offered the statement and deposition, corroborating plaintiff’s version of the accident, as declarations against defendant Ufnowski’s interest. The statements were admissible against Ufnowski’s estate even if they were not admissible against the defendant corporation. Republic Iron & Steel Co. v. Industrial Commission, 302 Ill. 401, 405. Furthermore, part of plaintiff’s instruction seven was clearly designed to limit the declaration to Ufnowski and to protect the corporation:

“You are further instructed that the statements of Frank Ufnowski, deceased, are competent only against his estate, but not against the defendant, A. Bazzoni & Co.”

The record before us does not justify any inference of prejudice to the corporation through admission of the evidence or through disregard.by the jury of the instruction.

There is no merit in the contention that plaintiff’s testimony violated the so-called “Dead Man’s Statute” (Chap. 51, Sec. 2, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 107.068]) because it was adverse to the administrator. It is not the purpose of the statute, which grants immunity to Ufnowski’s estate from testimony by the plaintiff, to extend this immunity to the defendant corporation but to protect the estate against false claims. Fredrich v. Wolf, 383 Ill. 638. The testimony was admissible against the corporation, and the character of this evidence is not varied by the presence of the administrator as a party. Another part of plaintiff’s instruction seven also limits this testimony to the corporation and is designed to protect the estate:

“You are instructed that the testimony of the plaintiff, is not competent as against the Estate of Frank Ufnowski, but can be considered against the defendant, A. Bazzoni & Co.”

Defendant argues, notwithstanding the instruction above quoted, that evidence incompetent as to one defendant is likewise incompetent to the other. For this proposition Antrim v. Noonan, 186 Ill. App. 360, 366-7 is cited and lends support to defendant’s argument. We think we are bound, however, by the holdings of the Supreme Court in Eich v. Sievers, 73 Ill. 194, 196, and Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481, 494, under which, in the instant case, there was no error in admitting testimony, proper to one defendant, so long as the other defendant was protected by a suitable instruction. In a case such as the case before us, it is the office of the court’s instruction to limit the parties against whom such evidence, when admitted, should be considered. It cannot be said that its admission here, when followed by the instruction confining its scope, was reversible error.

We do not agree with the contention that defendants were prejudiced by the cross-examination of Lajewski. Before he testified a police report containing the statement of Ufnowski had been received in evidence, over the sole objection that the corporation was not bound by the declarations of Ufnowski beyond the scope of the agency. The statement bore Lajewski’s signature as witness. Since his testimony on direct examination differed from Ufnowski’s declaration and deposition as to the occurrence, the purpose of the cross-examination was to determine whether his signature acknowledged the written statement as his own as well as Ufnowski’s. The purpose was impeachment.

The only objection made to the cross-examination is that it was “in effect an attempt to impeach Lajewski by the statement of Ufnowski.” The cross-examination showed that Lajewski signed as witness to the statement of Ufnowski and that he stood by without objection while the statement was given. This was enough prima facie to bring the event within the rule that impeaching statements assented to by the witness may be put in evidence with the fact of assent. People v. Tice, 115 Mich. 219, 73 N. W. 108.

Defendants complain that plaintiff’s instruction fourteen should not have been given because (a) it contained the implication that the truck was being driven at an unreasonable speed and (b) there was no evidence of excessive speed on which to base the instruction. We think as to (a) that any possible harmful implication was obviated by other instructions. As to (b), plaintiff alleged defendants were guilty of “excessive and dangerous” speed and we think the testimony was sufficient to present a jury question, whether the speed of the truck under the circumstances was dangerous.

The “injurious implication” objection is also directed at plaintiff’s instruction eleven. We find the same protection for defendant here, as with respect to number fourteen, in instructions on burden of proof. The fact situation in Borucki v. McLaughlin, 344 Ill. App. 550, cited by defendant, rendered the instruction inapplicable there. The parties agree that the statute embraced in plaintiff’s instruction twelve was no longer in effect at the time of the trial. The substance of the statute, however, was included in another statute which was in effect at the time. The evidence shows the accident occurred in the northeast quadrant of the intersection and therefore instruction number thirteen was proper. We agree with defendant that the evidence did not justify instruction fifteen. This error in the case, however, we deem harmless. We have passed on the only complaints made of the instructions.

There is no merit to the contentions that there was no evidence of negligence on the part of defendants and that the verdict and judgment are against the manifest weight of evidence.

We cannot say that the verdict is excessive. Plaintiff was twelve years old at the time. Surgery upon his leg disclosed a fragmented tibia, a combination spiral and oblique fracture and three 1½-inch metallic screws were required to appose the fragments. He was in the hospital about three weeks, in a. wheel chair three months, then on crutches, lost twenty pounds, missed a year’s schooling, had consequences in the leg which require further surgery and had hospital bills of about $1,200.

For the reasons given the judgment is affirmed.

Judgment affirmed.

LEWE, P. J. and FEHSTBERG-, J., concur.


text:
    People of State of Illinois, Appellees, v. Walter G. Herbster et al., Appellants.
    Gen. No. 46,646.
    First District, Third Division.
    October 13, 1955.
    Released for publication November 10, 1955.

      James A. Brow, of Chicago, for appellants.
    John Gutknecht, State’s Attorney of Cook County, for appellees; Gordon Nash, Joseph Kerwin, Charles D. Snewind, and William Sylvester White, Assistant State’s Attorneys, all of Chicago, of counsel.
   MR. JUSTICE KILEY

delivered the opinion of the court.

This is a quo warranto proceeding (Chap. 112, Secs. 9-15, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 109.498(1)-109.498(7)]) to try the right of defendants to offices of the Crawford Park District of Cook County. The trial court found defendants guilty of usurpation and ordered them ousted from office. Defendants have appealed.

Plaintiff moved in this court to dismiss the appeal or in the alternative to affirm the judgment. The motion was taken with the case.

The District was organized in April 1931 under order of the County Court, according to the provisions of the Park District Code (Chap. 105, Sec. 2—1, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 96.2-1]). The order dedared the election of defendants Herbster, Engel and Stolberg and of Joseph Proesel and Nicholas Bree to the offices of commissioner for terms of 6, 4, 2, 4 and 6 years, respectively. In 1933 Stolberg was re-elected commissioner.

The first meeting of the commissioners was held July 6, 1931 and an ordinance was passed calling for regular monthly meetings. The second meeting was August 6,1931, the third April 10,1933 and the fourth June 9,1933. There were no meetings in 1934 and there were but two in 1935. During the next fourteen years there were no meetings. In this latter period Proesel and Bree, original commissioners, died and the terms of Herbster, Engel and Stolberg expired.

The first meeting after the fourteen-year interval was August 1, 1949 at which C. Sauer was appointed treasurer of the District. July 2, 1951 the defendant commissioners met and appointed Elliot Jarvis and defendant Willoughby to the vacancies created by the deaths of Proesel and Bree, “until the next Park Board Election.” August 17, 1953 defendant O’Meara was appointed Park District secretary. On February 10, 1954 the commissioners met and accepted the resignation of Jarvis and declared Stolberg’s office “vacant for and by reason of . . . failure to attend any meetings” after August 1953. Defendant Nelson was appointed to fill the Jarvis vacancy to complete Jarvis’ term or “until a period ending with the election of a successor.”

The decisive question is whether Herbster, Engel and Stolberg are entitled to their offices by virtue of their election in 1931 and under the provisions of the Park District Code (Chap. 105, Sec. 2—10, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 96.2-10]) that they shall serve their respective terms of 6 years, 4 years and 6 years, respectively, “or until their successors shall be duly elected and qualified.” It is admitted no successors were elected or qualified.

Defendants contend that the legislature, by the disjunctive clause, “or until their successors shall be duly elected and qualified,” intended to prevent and avoid a vacancy or hiatus in public office so that there would always be someone to perform the functions of the office. In support of this contention defendants rely upon People ex rel. Illinois Midland Ry. Co. v. Supervisor of Barnett Township, 100 Ill. 332. That case was discussed in People ex rel. McCarthy v. Barrett, 365 Ill. 73, 82, and its “basic holding” was stated to be “that one may not evade a duty to a creditor or cause the public convenience to suffer by a voluntary resignation of public office.” The court in the Barrett case decided that the state policy permitted a resignation from public office when neither the rights of creditors nor public convenience prevents the resignation. In the Supervisor of Barnett Township case, creditors would have suffered had the mandamus been denied against the officer whose successor had not been “qualified.”

In no case cited, by the parties, was there any holdover, voluntary or involuntary, comparable to that of the defendants Herbster, Engel and Stolberg. These holdovers were not mere gaps between “successive officeholders,” as the court in the Barrett case, page 83, remarked in discussing a holdover provision of the judicial article (Art. VI, Sec. 32, Ill. Const.). There is no basis for justifying their holding over on the ground of protecting creditors or the public interest. “Their title, according to their own showing, rests upon, their own neglect. If it be admitted for one election, the defendants may be trustees for life.” People ex rel. Garmo v. Bartlett, 6 Wend. (N. Y.) 422, 424. During the period since the organization of the Park District defendants Herbster, Engel and their colleagues, elected or appointed, performed no substantially productive functions in the public interest. There was no property acquired, held or developed.

True, the mere expiration of the terms of the original trustees did not operate to vacate the office. City of Pekin v. Industrial Commission, 341 Ill. 312, 319. And if they have shown a lawful right to the offices they cannot be guilty of usurpation. Soucy v. People ex rel. McCracken, 113 Ill. 109, 112. It is true also that there had been no election since the original, except as to Stolberg, and consequently no successor elected. But Herbster, Engel and Stolberg are responsible for that state of affairs and since they had the power to conduct the elections (Chap. 105, Secs. 2—12, 2—13, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 96.2-12, 96.2-13]) a duty to do so is implied and the failure to do so a breach of that duty.

The trial court decided that defendants Herbster, Engel and Stolberg were not entitled to the offices because they had forfeited their rights by abandonment. We think the decision was right. “An officer in a municipal corporation may of course resign his office, or he may abandon it by removal or otherwise, which will be treated in law as an implied resignation.” People ex rel. Stephen v. Hanifan, 96 Ill. 420, 422. The court in the instant case based his decision on the facts that for fourteen years there was no park property, no taxes levied, no park purposes pursued, virtually no meetings in compliance with the ordinance of 1931 and a noncompliance with the statute requiring that public records be kept of minutes of proceedings. The finding of abandonment was justified.

The court’s finding was, presumably, that defendants Herbster, Engel and Stolberg forfeited their rights in 1949 and thus nullified the proceedings of the July 1951 meeting by which Willoughby was named commissioner to fill a vacancy; the August 1953 proceedings by which defendant O’Meara was appointed secretary; and the February 1954 proceedings by which defendant Nelson was appointed commissioner to fill a vacancy. We think these appointments fell with the finding of previous abandonment of the offices by Herbster, Engel and Stolberg.

The trial court expressly declined to pass upon the question of the effect of its decision upon the Crawford Park District itself. We need not do so.

Plaintiff’s motion to dismiss on the ground that the appeal is moot because of the organization of a playground and recreational system under Art. 57 of the Cities and Villages Act (Chap. 24, Sec. 57—1 et seq., Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 21.1964 et seq.]) in the same territory is denied. So far as this appeal is concerned the Park District remains in existence until its legal dissolution by “legislative consent or pursuant to legislative provision.” People ex rel. Petty v. Thomas, 361 Ill. 448, 455.

For the reasons given the judgment is affirmed.

Affirmed.

LEWE, P. J. and FEINBERGr, J., concur.


author: MR. JUSTICE EOVALDI

text:
    J. Paul Masters and Susan T. Masters, Plaintiffs-Appellants, v. Central Illinois Electric & Gas Co.; Frank Wojcik and A. F. Wojcik, Partners, d/b/a Wojcik Construction Co.; A. Reyner Eastman et al., Partners, d/b/a Gregory Excavating Company, Defendants. Central Illinois Electric & Gas Co.; Frank Wojcik and A. F. Wojcik, Partners, d/b/a Wojcik Construction Co., and A. Reyner Eastman, Appellees.
    Gen. No. 10,855.
    Second District.
    October 18, 1955.
    Rehearings denied November 10 and 15, 1955.
    Released for publication November 16, 1955.

      Pedderson, Menzimer, Carl & Conde, of Rockford, for appellants; L. W. Menzimer, and Dale F. Conde, both of Rockford, of counsel.
    Hyer, Gill & Brown, of Rockford, for defendantappellee Central Illinois Electric & Gas Co.; Stanton E. Hyer, of Rockford, of counsel.
    Victor & Ghent, of Rockford, for defendants-appellees Frank Wojcik and A. F. Wojcik, d/b/a Wojcik Construction Co.; Alex J. Victor, of Rockford, of counsel.
    Knight & Knight, of Rockford, for defendant-appellee A. Reyner Eastman; William D. Knight, of Rockford, of counsel.
   MR. JUSTICE EOVALDI

delivered the opinion of the court.

This action for $60,000 was brought by the plaintiffs to recover damages occasioned by a gas explosion which demolished plaintiffs’ newly constructed dwelling house and contents. The plaintiffs allege that the gas explosion was proximately caused by the negligence of the defendants who are Central Illinois Electric & Gas Co., which installed the gas line, Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., who are the contractors who built the house, A. Reyner Eastman, who is the architect who supervised the construction, and Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company, whose employee struck the gas service pipe with his grading machine, causing the pipe to be pulled loose in the basement of the house and causing the explosion.

At the close of plaintiffs’ case the trial judge directed a jury verdict in favor of Wojcik Construction Co. and A. Reyner Eastman. At the conclusion of the trial the jury rendered a verdict in favor of plaintiffs and against the defendant, Central Illinois Electric & Gas Co., in the sum of $42,000, on which judgment was rendered on January 2, 1955. Said jury found Gregory Excavating Company not guilty. Defendant, Central Illinois Electric & Gas Co., filed a motion for a judgment notwithstanding the verdict of the jury and for new trial and both motions were granted by the trial judge on February 4, 1955. Plaintiffs filed a motion for a new trial as to Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., A. Reyner Eastman and Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company. The trial court granted said motion as to Gregory Excavating Company, and the petition for leave to appeal from said order granting a new trial was denied by our Court. The trial court denied the motion as to Wojcik Construction Co. and A. Reyner Eastman and entered judgment, from which this appeal is taken.

Plaintiffs’ theory of the case is that the trial judge erred in granting the motion by Central Illinois Electric & Gas Co. for judgment notwithstanding the verdict and in granting it a new trial as there was ample evidence on which to base the verdict of the jury. Plaintiffs further contend that the trial court erred in directing verdicts in favor of Wojcik Construction Co. and A. Reyner Eastman at the close of plaintiffs’ case, as, they argue, there was ample evidence introduced by the plaintiffs upon which the liability of said Wojcik Construction Co. and A. Reyner Eastman should have been determined by the jury.

The amended complaint is in four counts:

Count I is against the defendant, Central Illinois Electric & Gas Co., and it alleges ownership of the property in question in the plaintiffs; that plaintiffs contracted with Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., as the general contractor to build for plaintiffs a dwelling house at a cost of $44,865, subject to extras and credits; that the plans and specifications for said dwelling house were drawn for plaintiffs by defendant, A. Beyner Eastman, a duly licensed architect, and he was employed by plaintiffs to supervise and approve the construction of said dwelling house as it progressed at a cost to plaintiff of 7% of the cost of the house; that as a part of said plans, said A. Beyner Eastman included a topographical map or plan showing the heights of the finished grading, which plan or map was available to all defendants herein; that Central Illinois Electric & Gas Co. at all times mentioned was a corporation engaged in the business, among others, of supplying natural gas to dwelling houses in and near the City of Bockford, Illinois, and as a part of said business installed pipes for the carrying, transportation and conveyance of said natural gas to said dwellings; that at all times the plaintiffs were in the exercise of due care for the safety of said dwelling house and the premises; that in the month of April 1954, pursuant to a request by plaintiff, J. Paul Masters, the Central Illinois Electric & Gas Co. installed a %-inch pipeline from Brookview Boad into the basement of plaintiffs’ dwelling house and installed a gas meter and turned natural gas into said %-inch pipe, so that said natural gas under pressure passed into the said dwelling house and to the gas-fired furnace that was located in the basement of said dwelling; that at said time and place the Central Illinois Electric & Gas Co., through its agents, was notified that grading was to be done in the future and that the said gas pipe should be installed deep enough so as not to interfere with said grading; that Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company, were hired to grade the said premises in accordance with the topographical plan or map drawn by A. Reyner Eastman; that on May 22, 1954, one Zelmer Ware, an employee of said Aubrey J. Gregory and Hilmer T. Anderson, d/b/a Gregory Excavating Company, was sent by them to the premises to complete said finished grading and was instructed by Frank Wojcik and also by A. Reyner Eastman as to the desired grading and the level to be attained; that pursuant to said instructions said Zelmer Ware operated a tractor with an earth-moving blade on it and cut the earth from the then existing grade to the desired grade; that in the process of so cutting the earth and moving it with said tractor, the blade thereof struck the said ¾-inch gas pipe at a point approximately 20 feet south of the south foundation of the dwelling and approximately in the center of said lot, and moving said pipe so that it became disconnected in the basement of said dwelling house and allowed said natural gas to escape into said basement; that said gas pipe was uncovered where the grading machine had struck it and the pipe lay exposed to view; that said Zelmer Ware left the premises shortly after striking said gas pipe; that at approximately 4:15 p. m. on said day the natural gas which had escaped from the disconnected gas pipe exploded in plaintiffs’ dwelling house and from the force thereof totally demolished the said dwelling house and the contents thereof; that the defendant, Central Illinois Electric & Gas Co., owed a duty to plaintiffs to install a natural gas pipe at a safe depth beneath the finished grade, but that said defendant negligently and carelessly failed to install said gas pipe at a safe depth beneath the finished grade and negligently and carelessly installed said gas pipe at a depth where it was struck by the tractor blade of said Zelmer Ware while he was moving earth at the proper depth as shown by said topographical map; that said carelessness and negligence contributed proximately to the explosion which demolished plaintiffs’ dwelling house.

Count II of the complaint was against the defendants, Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company, and in addition to realleging certain material portions of Count I, alleged that said defendants had a duty to inquire the depth and location of said gas pipe but negligently failed to do so and further negligently and carelessly, through their agent, operated said tractor so that the blade thereof struck said gas pipe and moved the same, as aforesaid, and negligently and carelessly failed to investigate the damage to said gas pipe at said time and place, and negligently and carelessly failed to immediately inspect said dwelling house for gas leaks and negligently and carelessly failed to notify the Central Illinois Electric & Gas Co. of the damage to said gas pipe, and that the said carelessness and negligence of said defendants at said time and place proximately contributed to said explosion which demolished plaintiffs’ dwelling house.

Count III of the amended complaint is against Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., and in addition to realleging certain material portions of Count I alleges that said defendants, as the general contractor, had a duty to inspect the installation of said gas pipe to see that it would not interfere with the final grading and to see that it was installed at a safe depth below the final grade, but defendants negligently and carelessly failed to inspect the position of said gas pipe and negligently and carelessly failed to see that it was installed at a safe depth below the final grade, and negligently and carelessly instructed said Zelmer Ware to cut said earth without ascertaining that the tractor blade would clear the said gas pipe, and that said carelessness and negligence contributed proximately to the explosion which demolished plaintiffs’ dwelling house.

Count IV of the amended complaint is against the architect, A. Reyner Eastman. In addition to realleging certain material allegations in Count I, Count IV charges that the defendant, Eastman, as the architect supervising said construction, had a duty to inspect the installation of said gas pipe to ascertain that it would not interfere with the final grading of said premises, and to ascertain that it was located at a safe depth below the final grade, and that he undertook as part of his duties the supervision of the grading, but that said defendant negligently failed to inspect the gas pipe and negligently failed to see that it was installed at a safe depth below the final grade, and negligently and carelessly instructed said Zelmer Ware to cut and move said earth without ascertaining that the tractor blade would clear the said gas pipe and that the said carelessness and negligence of said defendant at said time and place proximately contributed to said explosion which demolished plaintiffs’ dwelling house.

Separate answers were filed by each defendant, trial was had, and no question is raised as to the pleadings.

As to Central Illinois Electric & Gras Co., we are of the opinion that the trial court erred in granting the motion for judgment notwithstanding the verdict, as said motion presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Wiik v. Hagen, 410 Ill. 158, 161; Seeds v. Chicago Transit Authority, 409 Ill. 566; Lindroth v. Walgreen Co., 407 Ill. 121, 130; Gorczynski v. Nugent, 402 Ill. 147, 156; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571, 576. We are not concerned with the weight or credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. Lindroth v. Walgreen Co., supra, at p. 130. In passing on a motion for a judgment notwithstanding the verdict, the court must consider all the evidence with all reasonable inferences therefrom in the aspect most favorable to the party against whom the motion is directed, and all contradictory or explanatory circumstances must be rejected. Baker v. City of Granite City, 311 Ill. App. 586.

From the evidence in this case it appears that plaintiffs made a contract with defendant, Central Illinois Electric & Gas Co., to lay a gas line and to install a gas furnace for plaintiffs’ house. Plaintiffs were building a dwelling house on a lot known as 3622 Brookview Road in Edgebrook Subdivision in the suburbs of Rockford, Illinois, and about the 1st of April 1954, when it came time for the installation of gas, plaintiff, J. Paul Masters, called the defendant gas company and requested that the gas service be installed. Within a week thereafter, the Central Illinois Electric & Gas Co. employees, under the charge of a foreman, came to install the gas service line to plaintiffs’ house. At that time, no grading had been done on the lot and it was uneven and bumpy. The lot is approximately 100 feet wide and the house sat facing south approximately 100 feet north from the curbline of Brookview Road. The lot sloped directly down from the street into the house and the front porch of the house was approximately 6 feet lower than the level of the street. There was a 2-foot off-set or step-off for a distance around the front of the house where the workmen had shoveled the dirt back to have room to work. There was a hump or mound of dirt in the middle of the front yard which had been deposited by the excavators. The installation of the gas pipe had progressed about halfway from the street when Frank Wojeik went to the foreman of the gas company crew and told him that they were going to grade the slope from the house down again and up again on account of the hill. “I told him to be sure to have pipe deep enough. As I remember, he told me we will do the best we can.” The construction of the dwelling house continued, and on May 22, 1954, the day of the explosion, the house was 90% complete.

Taking the evidence in. the light most favorable to the plaintiffs in this case, it must have been obvious to the defendant gas company that grading would have to be done to correct conditions and that the grading operation would involve a substantial lowering of the grade. The gas company foreman was an experienced man in these installations, and it is undisputed that Frank Wojcik told him on the day of the installation of the gas pipe that there was to be a grading down of the slope, and then up at the house, and to put the pipe deep enough. The gas company employees did not ask what the grading was to be, did not inquire concerning the plan for final grading, and did not request to see the topographical map at the time the pipe was installed. Even without the other elements of notice, the gas company employees should have known by looking at the level of the front portion of the house that the pipe would be on top of the ground when grading was done. As the gas line approached within a few feet of the house, it dipped sharply down in order to enter the basement at a point only 2½ feet below the ground level. This should have been an indication to the gas company employees that they were not deep enough.

In dealing commercially with a dangerous commodity such as gas, the defendant must exercise a high degree of care. In the case of McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, 97, the court said:

“The authorities have more than once said that ‘a company dealing with a substance so dangerous as gas must be held to a high degree of care and the exercise of every reasonable precaution in guarding against accidental injury.’ ”

The gas company has maintained that its negligence furnished a condition and that the action of the grader in striking the pipe was an intervening cause. A similar argument was made in the McClure case, supra, and in discussing the matter at page 99 the court, quoting with approval from another case, said:

“ ‘The argument is that there was an efficient and direct cause intervening between the negligence of the company and the injury to the appellant; that the ignition was this proximate cause, and that the alleged negligence of the company only furnished the condition or gave rise to the occasion by which the injury was made possible. [Citing authorities.] The principle enunciated in the cases cited is not applicable to relieve a party from such results of his negligence as ought reasonably to have been foreseen. A multitude of definitions has not made the meaning of the term “proximate cause” entirely clear in every possible situation, and it is affirmed by a distinguished author that no fixed and immediate rule can be applied to all cases. ... A cause of injury is not too remote if, according to the usual experience of mankind, the result ought to have been apprehended.’ In a somewhat similar case, Moore v. Lanier, 52 Fla. 353, the court said (p. 360): ‘In an action brought to recover damages for property destroyed through the negligence of another the declaration should allege facts showing the negligence complained of to be a proximate cause of the injury sustained. Proximate cause is that which naturally leads to or produces, or contributes directly to producing, a result such as might be expected by any reasonable and prudent man as likely to directly and naturally follow and flow out of the performance or non-performance of any act. [Citing authorities.]’ ” And then continuing on page 100, quoting with approval from the last mentioned case: “ ‘If the gas was present because the defendant did negligently and carelessly fit, install and equip the service pipe in the storeroom and it became ignited without the plaintiff’s negligence contributing thereto and an explosion occurred, the defendant is liable for the damages resulting from the explosion even though he was not responsible for the ignition.’ ” And then again at page 101, the court, quoting with approval from another case, said, “If the consequences follow in unbroken sequence from the wrong to the injury without an intervening efficient cause, it is sufficient if at the time of the negligence the wrongdoer might by the exercise of ordinary care have foreseen that some injury might result from his negligence. [Citing authorities.] The rule as to what constitutes proximate cause was considered in the case of Atchison, Topeka and Santa Fe Railroad Co. v. Stanford, 12 Kan. 354, and it was said: “Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first and every intermediate result, is to be considered, in law, as the proximate result of the first wrong cause.” ’ ”

In the case of Aurora Gas Light Co. v. Bishop, 81 Ill. App. 493 (2nd District), where the gas company was sued for injuries by a person hurt in a gas explosion, the gas lines were damaged by the settling of dirt from a sewer installed by the city over the gas line. The court holds on page 500: “Appellant was dealing with a dangerous agent. ... It was therefore its duty to protect the public as far as possible from all dangers attending the use of the same. In Smith vs. Boston Gas Light Co., 129 Mass. 318, it was said: ‘The defendant was authorized by law to lay down pipes and convey gas under the surface of the public streets and was bound to use proper care and prudence in the conduct of its business, having reference to the delicate and dangerous character of the material in its charge. It was especially bound to exercise this care in the proper location, structure and repair of the pipes, so that there would be no escape of gas dangerous to life and health.’ ”

In the Aurora case, supra, the gas company contended that it should not be held to the same strict accountability with which it would otherwise be charged, for the reason that the breaks were caused by the negligent manner in which the city filled the sewer trench and the consequent settling of the earth in the same. Answering this contention, the court on page 501 stated: “In this case appellant must have known that the location of the sewer trench across its service pipes and the manner in which the same was filled in by the city, could not but result in injury to its pipes. It was therefore its duty to see that its pipes were properly protected from injury. Failing in that duty, appellant must be held responsible for such damages as result to the property of others by reason of such neglect.”

Other cases from foreign jurisdictions have had the problem of damages arising from the laying of a gas pipe at a shallow depth as being the proximate cause of injuries from a gas explosion. Such a case is Manufacturers’ Light & Heat Co. v. American Telephone & Telegraph Co. (CCA), 5 F.2d 572, where the gas company failed to bury its pipe 24 inches deep as required by statute and a truck ran over it while driving along the road, and the truck was blown up and the judgment for the plaintiff was affirmed.

In McWilliams v. Kentucky Heating Co., 166 Ky. 26, 179 S. W. 24, the gas company’s pipe was buried along a county road at an average depth of about one or two feet below the surface of the earth. At the time and place of the accident the dirt or earth which covered this gas pipe had either worn or washed away, or the mains had been originally placed near the surface, so that the top of the gas main was only an inch or two below the surface of the roadbed. Appellant-plaintiff, at the time he sustained the injuries complained of, was employed by the county as the engineer of a steam roller in the reconstruction and maintenance of the county road. While running the roller down the dirt road, the spikes in one of the wheels punched holes in an iron gas pipe that had been placed in the road, and when these holes were so made, the escaping gas came in contact with the fire in the engine, causing an immediate explosion and the envelopment of the engine in flames. When the explosion occurred and the flames surrounded the engine, appellant was severely burned and injured, and to recover damages for the injuries so sustained, he brought the suit. His appeal was from the action of the trial court in directing the jury to return a verdict in favor of appellees. In support of the ruling of the lower court, appellees contended that the law did not impose on them the duty of maintaining gas pipes so far below the surface, or sufficiently strong or sound to prevent same being punctured by the spikes in the wheels of a machine of the character operated by appellant, and further, that the proximate cause of the gas escaping was the independent, intervening act of the appellant in operating the roller with the spikes in the wheels over the dirt road, an act which could not have been reasonably anticipated by appellees. They further argued that the officials of the county knew that the gas main was in the road, and should have notified appellant if he did not know of its existence, and this knowledge on the part of these officials relieved appellees from' liability.

The Kentucky Court of Appeals reversed the cause for a new trial stating: “We think the case should have gone to the jury, and that the court erred in ruling as a matter of law that the appellant failed to make out a case for a jury.”;

The question of negligence of the defendant was a matter for the jury to pass on. The record here presents sufficient evidence to go to the jury and we are of the opinion that the motion for judgment notwithstanding the verdict was improperly granted, and that the court erred in entering judgment against plaintiffs and in ordering that plaintiffs take nothing by their suit against the defendant, Central Illinois Electric & Cas Co., a corporation.

The plaintiffs argue that the trial court erred in granting the motion for new trial filed by the defendant, Central Illinois Electric & Cas Co. In reviewing an order of the trial court granting a new trial where the question of the weight of the evidence is involved, the reviewing court will not disturb the order in the absence of an affirmative showing of a clear abuse of discretion. Warren v. Patton, 2 Ill.App.2d 173, 179; Eckhardt v. Hickman, 349 Ill. App. 474, 483; Matkins v. Fenorsky, 348 Ill. App. 125, 129; Chapman v. Baltimore & O. R. Co., 340 Ill. App. 475, 499, 500. The matter of granting a new trial is in the sound discretion of the trial judge. Parke v. Lopez, 306 Ill. App. 486; Ledferd v. Reardon, 303 Ill. App. 300; Josate v. Mack, 302 Ill. App. 246. As was said in Josate v. Mack, supra, at p. 248: “Necessarily, the trial court should have the discretion to decide with finality whether a new trial is necessary in the interests of justice, as it is in his power to observe the multiplicity of situations as they arise during the progress of the trial and is in a better position to weigh the effect upon the jury and to judge whether or not substantial justice had been done.” On the question of the evidence, the trial judge must be accorded considerable discretion, and his judgment is accorded greater latitude than on questions of law. Loucks v. Pierce, 341 Ill. App. 253. The presiding judge in passing upon the motion for new trial has the benefit of his previous observation of the appearance of the witnesses, their manner in testifying, and of the circumstances aiding in the determination of credibility. The trial judge is in a better position than a court of review to weigh the evidence. The allowance or refusal of the motion is largely within the discretion of the trial court. His decision is subject to review, but it is commonly said that it will not be reversed except for a clear abuse of discretion. Gavin v. Keter, 278 Ill. App. 308; In re Estate of Velie, 318 Ill. App. 550; Chapman v. Baltimore & O. R. Co., supra; Matkins v. Fenorsky, supra. We are of the opinion that the trial court properly allowed the motion for new trial filed by the defendant, Central Illinois Electric & Gas Co., and said order is affirmed.

It is urged by plaintiffs that the trial court erred in directing a verdict in favor of Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co. and in favor of A. Beyner Eastman, the architect, at the close of plaintiffs’ case. Plaintiffs in their brief argue that it was alleged and proven that the defendants, Wojciks, were the general contractor; that they knew of the topographical map; that they knew of the future grading plans; that they were present and warned the Central Illinois Electric & Gas Co. to put the gas service line deep enough because of future grading. Under these circumstances, they submit that the contractors had a duty to inspect the installation of the gas pipe to see that it was installed at a safe depth below the final grading, and their failure to do so was negligence proximately contributing to the explosion. They further argue that the defendant, Frank Wojcik, instructed the grading machine operator in the reading of the topographical map without checking on the gas pipe or warning the tractor operator. From this, plaintiffs conclude that the contractor-defendants violated a duty to the plaintiffs.

It is admitted that the Wojcik Construction Co. was the general contractor. As the general contractor, these defendants had the duty of constructing the building in a workmanlike manner. This they did as shown by the testimony of the architect who examined the work done by these defendants and found everything in order.

It is further admitted that the Wojcik Construction Co. knew of the topographical map and of the future grading, but the testimony further clearly shows that Frank Wojcik did not instruct the grading machine operator in the reading of the topographical map, but on the contrary, informed him that he could not explain the grading required and that Mr. Eastman, the architect, would do so. The record shows that Mr. Eastman did direct the operator on the grading. This conduct on the part of the defendant, Frank Wojcik, in referring the machine operator to Mr. Eastman for details of grading, does not constitute negligence, as these parties each had their separate jobs to do in a manner which each one had a right to choose. Furthermore, the evidence was that these defendants did no excavating or grading and were not equipped to do so ; that they employed an independent contractor, an expert in the field, to do the grading, and Zelmer Ware, the grading machine operator, who had considerable experience, was eniployed by said independent contractor. It is undisputed that Gregory Excavating Company had been in this type of work for many years before it was employed as an independent contractor to do the work of grading. We cannot say, as a matter of law, that the contractors were guilty of negligence in contracting with said Gregory Excavating Company to do this part of the work.

As previously stated, the defendant, Central Illinois Electric & Gas Co., was employed by the plaintiffs to install the gas service. It cannot successfully be contended that it was under the control of the Wojciks, or that the Wojciks could instruct the gas company in the manner of installing the gas service. The Wojcik Construction Company had absolutely nothing to do with the gas service. A comprehensive review of all the evidence shows that said defendants did not exercise control, in any real sense, of the operations of the gas company. Plaintiffs are not justified in charging the defendant, Frank Wojcik, with negligence for suggesting and reminding the foreman of the crew of the Central Illinois Electric & Gas Co. of future grading on the premises.

Where there is no evidence of negligence contributing proximately to the injury complained of, the trial court should direct a verdict in favor of the defendants. Dregne v. Five Cent Cab Co., 381 Ill. 594, 313 Ill. App. 539. The trial court properly directed a verdict for the defendants, Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co. The judgment of the trial court in denying the motion for new trial as to said defendants is affirmed.

It is urged by plaintiffs that in view of .the fact that the defendant, A. Beyner Eastman, drew the topographical map and knew that there was to be a gas installation that he was negligent in not checking to see that the gas line was safely below the final grade and out of the way of the grading, and that he was negligent in failing to warn the grader to watch out for pipes, and that for his failure to observe said alleged duty to plaintiffs under his contract to supervise construction for plaintiffs, defendant should be held liable for the damages occasioned by the explosion.

In order to properly pass upon this question, it is necessary that we review certain other facts in this case. The Contract Documents consisted of: 1. The original contract between plaintiffs and Wojciks for construction of the house; 2. The general conditions of the contract; and 3. The specifications and drawings. By the express terms of the contract they were all as fully a part of the contract as if attached thereto and repeated therein. Article 35 (of General Conditions) — Separate Contracts — stated as follows: “The owner reserves the right to let other contracts in connection with this work.” Article 38 (of General Conditions)— Architect’s Status — reads as follows: “The architect shall have general supervision and direction of the work. He is the agent of the owner only to the extent provided in the Contract Documents.” The agreement between the defendant, Eastman, and the plaintiffs was that “Superintendence shall be sufficient to insure the erection of the building substantially in accordance with the drawings and specifications.” The architect’s duties did not consist of drawing the topographical map to show the original grade of the lot and the final grade to be obtained, but the architect testified he did that for the help of everybody. A licensed land surveyor, Arnold Lundgren, was hired by the owner to make a topographical survey and to prepare and furnish a topographical plat.

Masters, the owner, conducted the negotiations for the installation of the gas pipe. The gas pipe did not appear on any of the plans or maps which the architect, Eastman, drew. There is nothing in plaintiffs’ Exhibit 20 — the Specifications — in regard to the gas line. No bid was taken by the architect on the item of gas service from the street to the house. Eastman, as the architect, testified, “I get bids on nothing other than in the specifications and plans and get no commission on other work.” He had no part in ordering the gas company to put the gas main in. He did not see the gas pipe being laid and did not know when it was put in. All counsel in the case stipulated that the original plans for the house did not include any designation of gas lines, or location of gas lines from the house to the street. Eastman further testified that the contract for the construction of the house between plaintiffs and the Wojcik Construction Co. was prepared under his direction; that all business between the client and the contractor should be transacted through him; that his compensation was to be 7% of the cost of the house and that his duties consisted of supervising the construction, but not 8 hours a day, and it consisted of approving the payments the owner would make to the contractor. Eastman was called to a conference at the lot about 3:00 o’clock Saturday afternoon, May 22, to look at what had been done by the surveyor. At that time, all the grading was practically finished. Zelmer Ware, the excavator, was there. Ware said, “What do you think about this?” and Eastman said, “As far as I can see, it looks all right, but I cannot accept it until Monday when I use my instruments on this property.”

Where there is any evidence fairly tending to show that the negligence charged was the proximate cause of the injury the question is one of fact for the jury, but whether there is any such evidence is a question of law, which is raised by a motion for a directed verdict. Jenkins v. LaSalle County Carbon Coal Co., 264 Ill. 238; Seymour v. Union Stock Yards & Transit Co., 224 Ill. 579; McLaughlin v. Alton Railroad, 278 Ill. App. 551, 556.

Where the law raises a duty, the question whether it was properly performed or not is one of fact, but whether, under the facts, the law raises a duty is a question of law. Joy v. Chicago, B. & Q. R. Co., 263 Ill. 465, 470. On a motion to direct a verdict, the court will merely inquire whether there is any evidence in the case tending to support the verdict. Walsh v. Chicago Rys. Co., 303 Ill. 339, 344. The motion to direct a verdict raises only a question of law respecting the legal sufficiency of the evidence to sustain a verdict against the party making the motion. Adamsen v. Magnelia, 280 Ill. App. 418, 422; Paulsen v. Cochfield, 278 Ill. App. 596, 599-600. The trial court’s action in directing a verdict at the close of plaintiffs’ proof is presumptively correct, and the burden is on the plaintiff to overcome that presumption, and it is for the plaintiff to point out evidence from which the jury could reasonably have found in his favor. Krueger v. Richardson, 326 Ill. App. 205, 211.

The relationship between the plaintiffs and the defendant Eastman was contractual. It has been held in Rogers v. Enzinger, 339 Ill. App. 376, 89 N.E.2d 853, that where the only relation between the parties is contractual, liability of one to the other, in an action of tort for negligence, must arise out of some positive duty which the law imposes because of the relationship or because of the negligent manner in which some act which the contract provides for is done and the mere breach of an executory contract where there is no general duty is not the basis of such action. One’s duty extends no further than his right, power, and authority to carry out such duty. Allegretti v. Murphy-Miles Oil Co., 363 Ill. 137, 142. Applying the above rules of law to the facts in this case, we are unable to find wherein defendant Eastman violated any duty which he owed to plaintiffs. The trial court properly directed a verdict at the close of plaintiffs’ case. Accordingly, the action of the trial court in denying the motion for new trial as to said defendant is affirmed.

For the error of the trial court in granting the motion for judgment notwithstanding the verdict filed by defendant, Central Illinois Electric & Gas Co., said judgment is reversed, and the cause remanded for a new trial.

Affirmed in part, reversed in part, and remanded.

CROW and DOVE, JJ., concur.