author: Mr. JUSTICE REINHARD

text:
    CLARA SCHNABEL et al., Plaintiffs-Appellants, v. THE COUNTY OF DU PAGE et al., Defendants-Appellees.—(ILLINOIS PRAIRIE PATH, INC., Intervenor-Appellee.)
    Second District.
    No. 80-776
    Opinion filed November 12, 1981.

      John G. Plain, of Aurora, for appellants.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Walter P. Maksym, Jr., and Richard Hattendorf, Assistant State’s Attorneys, of counsel), for appellees.
   Mr. JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs brought this action to quiet title and set aside a deed to property conveyed by quitclaim deed to the defendant, County of Du Page. Both parties moved for summary judgment and stated that there was no genuine issue as to any material fact. On June 6, 1979, the trial court entered an order denying the plaintiffs’ motion for summary judgment and granting the county’s cross-motion for summary judgment. Subsequently, the trial court denied the plaintiffs’ motion to reconsider, which sought to vacate the court’s order of June 6. The plaintiffs brought this appeal against both the county and the Illinois Prairie Path, Inc., which was permitted to intervene during the course of proceedings below upon petition and over the objection of the plaintiffs.

On appeal plaintiffs raise these issues: (1) that there were genuine issues of material fact which precluded granting the county’s motion for summary judgment; (2) that the trial court should have granted plaintiffs’ motion for summary judgment; and (3) that the trial court abused its discretion in allowing Prairie Path to intervene.

The material factual allegations in the pleadings, supporting affidavits, and other documents filed in support of and in opposition to the motions for summary judgment reveal the following events underlying the present cause. In 1901, the plaintiffs’ predecessors in title granted by deed to the Aurora, Elgin and Chicago Railway Co. (A, E & C) a portion or strip of their land for use by the A, E & C as a right of way “for the purpose of constructing a railroad, and for all purposes connected with the construction and use of a railroad.” The two deeds in question further stated that the railroad, its successors and assigns, were to hold the land described “for all uses and purposes, or in any way connected with the construction, preservation, occupation and enjoyment of a railroad.” Thereafter, a railroad was constructed and was in continuous operation until about the year 1960. A certified order of the Illinois Commerce Commission (ICC), dated July 6, 1961, indicates that between 1955 and 1959 the Aurora, Elgin and Chicago Railway Co. (subsequently reorganized as the Aurora, Elgin and Chicago Railroad Corp.) applied to the ICC for permission to abandon its passenger and freight transportation services. The order also states that the ICC authorized the railroad to abandon permanently all transportation services effective on July 6,1961, and further authorized the railroad to remove, sell, or otherwise dispose of its property, equipment, and facilities.

By the year 1965, the A, E & C had torn up and removed all the rails and wires necessary for and previously used by the A, E & C in operating its line for railroad purposes. In a quitclaim deed dated July 19, 1965, the A, E & C conveyed to the County of Du Page (county) all its interest in land previously granted to it as a right-of-way. The county leased this right-of-way to the Illinois Prairie Path, Inc. (Prairie Path) in an agreement dated December 18, 1973. This agreement was not filed in the recorder’s office of Du Page County. In this agreement the Prairie Path agreed to establish and maintain the right-of-way as a prairie path or nature trail between May 1,1973, and April 30,1983. The Prairie Path acknowledged that the Commonwealth Edison Company, the Illinois Bell Telephone Company, the Northern Illinois Gas Company and the Du Page County Highway Department also had easement rights in the subject property.

The plaintiffs, in support of their motion for summary judgment, filed affidavits by Leo Poss, one of the plaintiffs herein. In the affidavits, Poss stated that for more than 25 years he had resided on a farm immediately west of the land conveyed to the railroad as a right-of-way; that his daily observations had revealed that, ever since the railroad removed its rails, wires and other items formerly used in the operation of the railroad from the land, the premises have been unimproved and unoccupied; that the right-of-way became practically impenetrable as a result of being overgrown with small trees and underbrush; that for the past 10 years the right-of-way has not been used by any person or entity, except Commonwealth Edison Co., which bulldozed part of the right-of-way to obtain access to its power lines; and that there has never been a path or anything resembling a nature trail through or upon the right-of-way. Plaintiffs also allege that they have paid all real estate taxes levied against part of the subject property.

In opposition to the plaintiff’s motion for summary judgment, the county introduced an affidavit of Thomas Merrion, the right-of-way agent and an employee of the highway department of Du Page County. Merrion stated that he had custody and charge of the official records and documents of the department pertaining to the subject railroad right-of-way. He also stated that on July 19, 1965, the county purchased from the railroad for the sum of $500,000 that portion of the railroad’s right-of-way which extended through Du Page County, including the property which is the subject of the present litigation; that the county and the Prairie Path negotiated and discussed alternative uses for the railroad right-of-way as early as July of 1965; that the county reached a preliminary agreement with the Prairie Path on May 10, 1966, to allow the Prairie Path to use the railroad’s former right-of-way, including the subject property; and that from 1966 until 1978 the Prairie Path had operated an outdoor recreational nature trail on the former right-of-way, including the subject property, pursuanttxra”lease executed by the county and the Prairie Path. However, the county in other documents filed in this case admitted that the “plaintiff correctly alleged that the property which is the subject of this suit is not on the ‘Prairie Path’.” The A, E & C right-of-way forked at a point east of the subject property. The Prairie Path follows the south branch, whereas plaintiff’s property is located on the north branch, known as the Batavia Branch. However, the county still maintains that the A, E & C conveyed its entire right-of-way, including plaintiffs’ property to the county.

The Prairie Path, in opposition to plaintiffs’ motion for summary judgment, submitted an affidavit of its president, Paul Mooring. Mooring stated that members of his organization and the public in general have used the former railroad right-of-way, described by the plaintiffs, as a nature trail as is evidenced by certain nature walks conducted in 1971. He also stated that the Prairie Path has a contractual agreement or lease with the county whereby the Prairie Path is authorized to develop and use from 1973-to -1983 the subject right-of-way as a prairie path or nature trail and as part of its nature trail system; that the Prairie Path has taken affirmative steps to develop a nature trail on the subject portion of the railroad’s former right-of-way; and that the right-of-way in question has been used as a nature trail during the last 10 years.

On appeal, the plaintiffs claim that the county is not entitled to summary judgment as a matter of law. The plaintiffs allege that since the right-of-way was abandoned, they are entitled to reclaim its use since an easement in gross cannot be assigned, being personal in nature. They claim that even if the easement is a commercial easement, and could be assigned, that it must still be used for railroad purposes. Plaintiffs alternatively claim that this is not a matter which can be settled by summary judgment since the question of abandonment, a material issue of fact here, is a question of intention and therefore cannot be settled as a matter of law. Finally, plaintiffs claim that the trial court abused its discretion by allowing the Prairie Path to intervene.

Both the county and the Prairie Path contend that the A, E & C right-of-way was assignable and alienable and that A, E & C did not abandon the right-of-way. They also claim that the present use of the right-of-way as a prairie path or nature trail is less objectionable than use as a railroad and therefore should be permitted. They contend that the present use is continuing to benefit the public and is still for transportation. The county and the Prairie Path also argue, based on the doctrine of invited error and estoppel, that the plaintiffs cannot now claim that the question of abandonment is a material question of fact since they themselves moved for summary judgment. Both the county and the Prairie Path claim that the Prairie Path had a right to intervene as it holds a leasehold interest in the subject property.

In its order denying the plaintiffs’ motion for summary judgment and granting the county’s cross-motion for summary judgment, the trial court determined that the right-of-way easement which the railroad had obtained from the plaintiffs’ predecessors in title was an easement in gross of a commercial nature and, as such, was assignable to the county; that even though the easement was conveyed to the county for a purpose other than railroad purposes, such an assignment did not constitute an abandonment where, as here, the county’s proposed use is of a public nature which will greatly benefit the public and will not impose an added burden or detriment upon the servient estates of the plaintiffs; and that the Prairie Path serves a common good and an interruption of its nature trail network would result in a serious detriment to the general public.

Plaintiffs first contend that the issue of abandonment was a question of fact and that the trial court could not grant summary judgment for the county under the pleadings and affidavits filed. The county and Prairie Path counter that plaintiffs are barred from asserting the alleged existence of a material fact by the twin doctrines of invited error and estoppel as most recently enunciated by our supreme court in Catalano v. Pechous (1980), 83 Ill. 2d 146, 419 N.E.2d 350. The essence of this contention is that since the plaintiffs stated in their motion for summary judgment that no genuine issue of material fact existed, they cannot now, on appeal, claim that the issue of abandonment was a material fact and therefore the disposition of this case by way of summary judgment was improper. While we tend to disagree that this case comes within the rule applied under the facts in Catalano v. Pechous and do not believe the mere filing of cross-motions for summary judgment invokes this doctrine (see Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 199, 380 N.E.2d 1040), we need not decide that issue as we believe the pleadings and affidavits do not contain disputed material facts regarding the issue of abandonment. While there are disputed facts as to the subsequent use of the property by Prairie Path, these are not pertinent to the abandonment issue and arise subsequent to the 1965 conveyance of the property to the county by A, E & C. Accordingly, we address the legal concepts of the alienability of a railroad right-of-way and its abandonment as it relates to the facts of this case.

It is well established that a right-of-way granted to a railroad creates an easement, and the easement terminates upon abandonment of its use. (Branch v. Central Trust Co. (1926), 320 Ill. 432, 440-43, 151 N.E. 284; Chicago & Eastern Illinois R.R. Co. v. Clapp (1903), 201 Ill. 418, 424, 66 N.E. 223; People ex rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 996, 373 N.E.2d 471.) The abandonment by the railroad of the right-of-way for railroad purposes revests the owner of the record title with absolute ownership of the land upon which the right-of-way had existed. (Joseph v. Evans (1929), 338 Ill. 11, 20, 170 N.E. 10; Branch v. Central Trust Co., at 443.) Abandonment has been defined as the voluntary relinquishment or giving up with the intention of never again claiming one’s rights or interest. (Illinois Central R.R. Co. v. Illinois Commerce Com. (1947), 398 Ill. 19, 24, 75 N.E.2d 23.) Thus, in order to establish that a railroad has abandoned its right-of-way easement, it is necessary to prove actual relinquishment and the intention to abandon the use of the premises. (Abens v. Chicago, Burlington & Quincy R.R. Co. (1944), 388 Ill. 261, 269, 57 N.E.2d 883; Golconda Northern Ry. v. Gulf Lines Connecting R.R. (1914), 265 Ill. 194, 206, 106 N.E. 818; Department of Public Works & Buildings v. Schmauss (1972), 6 Ill. App. 3d 470, 472, 285 N.E.2d 628.) Since the element of intent is seldom capable of direct proof, the issue in most cases is limited to the question of what factors or circumstances are sufficient to warrant an inference that there existed an intent to abandon. It has been stated that since abandonment means the relinquishment of the property with the intention of abandoning it, that involves a factual determination for the jury. (Bell v. Mattoon Waterworks & Reservoir Co. (1910), 245 Ill. 544, 549,92 N.E. 352.) Furthermore, mere nonuse for a fixed period is not of itself sufficient to establish an abandonment. (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 176, 383 N.E.2d 919.) Abandonment occurs, however, when nonuse is accompanied by acts which manifest an intention to abandon and which destroy either the object for which the easement was established or the means of its enjoyment. (Chicago & Eastern Illinois R.R. Co. v. Clapp.) It has also been held that under its grant to use the property for railroad purposes, “the company may make any use of the land which, directly or indirectly, contributes to the safe, economical and efficient operation of the road * ° Mitchell v. Illinois Central R.R. Co. (1943), 384 Ill. 258, 264, 51 N.E.2d 271.

The railroad right-of-way abandonment cases fall into two categories: (1) those in which the interest of the railroad company was originally acquired by deed or conveyance and (2) those in which the railroad originally acquired its right-of-way easement through condemnation or eminent domain proceedings. (E.g., Chicago & Eastern Illinois R.R. Co. v. Clapp (1903), 201 Ill. 418, 66 N.E. 223.) In some cases, where land in the form of a right-of-way has been conveyed to a railroad under deed, by the terms of the conveyance itself, the grant was to be forfeited and the land encumbered by the easement to revert to the grantor in the event of an abandonment of the land for railroad purposes. (See, e.g., Branch v. Central Trust Co. (1926), 320 Ill. 432, 435, 151 N.E. 284; Latham v. Illinois Central R.R. Co. (1911), 253 Ill. 93, 96-98, 97 N.E. 254.) However, the same rule of extinguishment of the easement and reversion to the owner of the soil encumbered by the right-of-way easement holds in cases where the railroad has abandoned its right-of-way for railroad purposes. The Prairie Path argues that, in order for the plaintiffs to regain use of the right-of-way, the grant must expressly contain a reverter or right of re-entry clause. Such a clause is not necessary where the grant, as here, is construed to amount to only an easement. (Branch v. Central Trust Co., at 444.) The easement expires by its own limitation when the land is no longer used for a railroad right-of-way. Chicago & Eastern Illinois R.R. Co. v. Clapp, at 425.

Abandonment has been found to exist where no repairs were made on the railroad tracks, the rails rusted, the ties rotted, the road was overgrown with weeds, and the railroad conveyed part of the easement to a private person who used the depot as a residence (Branch v. Central Trust Co. (1926), 320 Ill. 432, 436, 443, 151 N.E. 284); where the railroad took up the rails and ties, removed the cattle guards and the signs at the crossings and used the rails and ties in the construction of another line (Chicago & Eastern Illinois R.R. Co. v. Clapp (1903), 201 Ill. 418, 426-28, 66 N.E. 223); where the railroad had obtained land to construct a depot and failed to do so in accordance with the grant (Lyman v. Suburban R.R. Co. (1901), 190 Ill. 320, 323-24, 60 N.E. 515).

In other jurisdictions, authorization from a regulatory agency of thé government to a railroad company to abandon operations as a public carrier has been found to be a factor indicating that the railroad abandoned its right-of-way easement. (Lake Merced Golf & Country Club v. Ocean Shore R.R. Co. (1962), 206 Cal. App. 2d 421, 23 Cal. Rptr. 881; Faus v. Pacific Electric Ry. Co. (1956), 146 Cal. App. 2d 370, 303 P.2d 814; City Motel, Inc. v. State Department of Highways (1959), 75 Nev. 137, 336 P.2d 375; Annot., 95 A.L.R.2d 468, 490-91 (1964); see Grover v. Sharp & Fellows Contracting Co. (1947), 82 Cal. App. 2d 515, 186 P.2d 682. But see Ocean Shore R.R. Co. v. Spring Valley Water Co. (1927), 87 Cal. App. 188, 262 P. 53.) In Lake Merced Golf & Country Club v. Ocean Shore R.R. Co., the court determined that the railroad had abandoned its right-of-way for railroad purposes where the company, after applying to the appropriate governmental agencies for permission to abandon operations as a public carrier and after receiving such authorization, removed its tracks and ties, sold its rolling stock, equipment and terminal facilities, allowed others to use the right-of-way and sold portions of it, and distributed its assets to its stockholders. (206 Cal. App. 2d 421, 425, 437-38, 23 Cal. Rptr. 881, 883, 890-91.) Similarly, in City Motel, Inc. v. State Department of Highways, the court concluded that the railroad had abandoned its right-of-way easement where it removed its tracks pursuant to authorization from the appropriate governmental regulatory agencies, ceased operations as a railroad over the land in question, and thereafter conveyed the right-of-way to the State for use as a public highway and not for railroad purposes. (75 Nev. 137, 143-44, 336 P.2d 375, 378-79.) In Illinois, a railroad shall not dispose of its right-of-way without first having secured the approval of the Illinois Commerce Commission. Ill. Rev. Stat. 1979, ch. 111 2/3, par. 27; National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 176, 383 N.E.2d 919.

The principles governing an appellate court’s review of a trial court’s disposition of motions for summary judgment are well settled. It is axiomatic that summary judgment is proper when the pleadings, together with the depositions, affidavits, and other material filed in support of and in opposition to the motion, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Century Display Manufacturing Corp. v. D.R. Wager Construction Co. (1977), 46 Ill. App. 3d 643, 360 N.E.2d 1346, aff'd in part & rev’d in part on other grounds (1978), 71 Ill. 2d 428, 434-35, 376 N.E.2d 993; Meakens v. City of Chicago (1980), 86 Ill. App. 3d 60, 62, 407 N.E.2d 893.) The purpose of a summary judgment proceeding is not to try an issue of fact but rather to determine whether there is an issue of fact to be tried, and a reviewing court will reverse an order granting summary judgment if it is determined that a question of material fact exists. (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 323, 403 N.E.2d 1239.) Summary judgment provides a means of disposing of cases with dispatch, but is a drastic method which should be allowed only when the party’s right to it is clear and free from doubt. (Cato v. Thompson.) Because different inferences may be drawn from undisputed facts, summary judgment should be allowed only where reasonable men cannot draw different inferences from the undisputed facts. Blaylock v. Country Mutual Insurance Co. (1980), 85 Ill. App. 3d 1042, 1044, 407 N.E.2d 849; Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc. (1980), 81 Ill. App. 3d 90, 92, 400 N.E.2d 1072.

The pleadings, affidavits, and other supporting material presented to the court in the summary judgment proceeding below do not contain disputed material facts regarding the events leading up to and including the A, E & C’s conveyance to the county in 1965 of its railroad right-of-way. Any disputed facts which postdate the 1965 conveyance are not pertinent to the issue of whether the A, E & C had abandoned its easement when it attempted the conveyance to the county since any abandonment had already been accomplished. Based on the fact that the A, E & C no longer exists as a railroad concern, the undisputed facts here are susceptible of only one inference, the railroad intended to and did indeed abandon its right-of-way. This is supported by the A, E & C’s application to the Illinois Commerce Commission for permission to abandon all transportation services, the ICC’s subséquent permission to do so, and the ICC authorization to remove and sell its railroad equipment and property. The A, E & C did tear up and remove all its rails and wires used in connection with the operation of its railroad line and attempted to convey the right-of-way to the county for nonrailroad purposes. From these undisputed facts, it appears that the A, E & C abandoned its right-of-way as a matter of law.

In its order, the trial court stated “[t]hat while railroad easements would ordinarily be limited to the purpose for which they are created so that an assignment for any other use would constitute abandonment, the facts of the case at bar are distinguishable because of the public character of the proposed use, a use which will not increase any burden on the estate.” The court apparently recognized the normal rule of extinction of a railroad’s right-of-way easement by abandonment and reversion to the grantor of the land encumbered by the right-of-way easement but carved out an exception on the basis that the nature trail system would benefit the general public and would not increase the burden on the servient estates of the plaintiffs. No court in Illinois has recognized such an exception to the normal rule of abandonment and denied return of the use of the encumbered property to the grantor, his heirs or assigns. See also Pollnow v. State Department of Natural Resources (1979), 88 Wis. 2d 350, 276 N.W.2d 738.

The trial court’s decision to uphold the conveyance from the railroad to the county was predicated, in part, upon its view that an easement in gross of a commercial character, such as the easement in question, is of a special and exclusive nature so as to make it assignable. An easement in gross, as distinguished from being one appurtenant, is one that is not created to benefit or does not benefit the possessor of any tract-of land in his use of it. (Simes, The Assignability of Easements in Gross in American Law, 22 Mich. L. Rev. 521,522 (1924).) It belongs to the easement holder independent of his ownership or possession of any specific land. In other words, the privileges of use of an easement in gross are incidental to the ownership of the easement and are not dependent upon the possession of a dominant tenement. (Willoughby v. Lawrence (1886), 116 Ill. 11, 19, 4 N.E. 356; 5 Restatement of Property §454 (1944); 28 C.J.S. Easements §4, at 634-35 (1941).) While it is generally the rule that an easement in gross is personal to the grantee and is incapable of assignment (Messenger v. Ritz (1931), 345 Ill. 433, 436, 178 N.E. 38; Waller v. Hildebrecht (1920), 295 Ill. 116, 122, 123, 128 N.E. 807), Illinois has recognized that a railroad may alienate or sell its right-of-way to another railroad so long as the grantee railroad is occupying it for railroad purposes. Golconda Northern Ry. v. Gulf Lines Connecting R.R. of Illinois (1914), 265 Ill. 194, 206-07, 106 N.E. 818. (The case, however, does not expressly address the question whether an easement in gross is alienable.)

While the railroad’s easement in gross, in appropriate circumstances, may be alienable, there is no support in Illinois case law for the court’s conclusion that, since no greater burden was placed on the servient estates of the plaintiffs, the conveyance to the county was proper and consequently the right-of-way was not extinguished by abandonment. Although there is authority that an existing easement may be altered or expanded in certain circumstances where no increased burden is imposed upon the servient estate (e.g., Weaver v. Natural Gas Pipeline Co. of America (1963), 27 Ill. 2d 48, 50-51,188 N.E.2d 18; Diller v. St. Louis, Springfield & Peoria R.R. (1922), 304 Ill. 373, 378, 136 N.E. 703; Talty v. Commonwealth Edison Co. (1976), 38 Ill. App. 3d 273, 276, 347 N.E.2d 74, accord, Faus v. City of Los Angeles (1967), 67 Cal. 2d 350, 431 P.2d 849, 62 Cal. Rptr. 193), those cases did not address the question of abandonment of the easement nor constitute use completely different from easement granted and are clearly distinguishable on their facts.

It is also contended on appeal that the trial court’s grant of summary judgment for the county can be justified, although not ruled upon by the trial judge, on the basis of laches and the statute of limitations as set forth as affirmative defenses by both the county and Prairie Path. We disagree, and find as a matter of law that these contentions must be resolved in favor of the plaintiffs. As we stated earlier, where the grant amounts only to an easement, no express reverter or right of re-entry clause is nécessary to revest the owner of the record title with absolute ownership, (Branch v. Central Trust Co. (1926), 320 Ill. 432, 440-43, 151 N.E.2d 284.) Therefore, Prairie Path’s contention that the statute of limitations for recovery of land for breach of condition subsequent and termination of estate upon limitation (Ill. Rev. Stat. 1979, ch. 83, par. 1) bars plaintiffs’ suit is clearly inapplicable here. (See Tallman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 41 N.E.2d 537; Pure Oil Co. v. Miller-McFarland Drilling Co. (1941), 376 Ill. 486, 34 N.E.2d 854.) Nor is the equitable doctrine of laches available here. The failure to assert a right combined with the lapse of time and resulting prejudice to the opposite party gives rise to the defense of laches. (Rogers v. Barton (1944), 386 Ill. 244, 253, 53 N.E.2d 862; Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 180, 360 N.E.2d 785.) As the county and Prairie Path have failed to point out any basis supporting laches other than the plaintiffs’ failure to file suit to quiet title any earlier, nor have they shown they were prejudiced thereby, that contention is legally insufficient under these circumstances.

The court finds that the Aurora, Elgin & Chicago Railroad Co. abandoned its right-of-way as a matter of law when it applied to the Illinois Commerce Commission for permission to discontinue railroad services, received said permission, took up its rails and ties and attempted to convey the right-of-way to the County of Du Page. Though a railroad may in certain circumstances assign its right-of-way, it may not disenfranchise its use for railroad purposes. Therefore, the deed to the county was of no effect. The trial court should not have granted summary judgment for the county on these facts. As plaintiffs did move for summary judgment in the trial court, we can grant judgment in their favor in this court. (See Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 3 Ill. App. 3d 379, 387, 279 N.E.2d 443.) Since the appellate court may make any order that ought to have been made in the trial court (Ill. Rev. Stat. 1979, ch. 110A, par. 366(a)(5)), we reverse the summary judgment in favor of the county and grant summary judgment for the plaintiffs.

We note that Prairie Path never filed its own motion for summary judgment. However, in the trial court and in this appeal, Prairie Path has asserted that its rights are dependent upon the underlying adjudication between the plaintiffs and the county and has briefed the issues and urged affirmance of the trial court judgment as if summary judgment had been granted in its favor. The effect of Prairie Path’s actions before the trial court and before us have been to join in the county’s motion for summary judgment, and we consider the Prairie Path to be so bound as a party in this appeal. Thus, we likewise reverse the trial court judgment and grant the plaintiffs’ motion for summary judgment against the Prairie Path. This court need not determine plaintiffs’ other contention that the trial court abused its discretion by allowing the Prairie Path to intervene since the case is reversed on other grounds. Kaplan v. Keith (1978), 60 Ill. App. 3d 804, 808. 377 N.E.2d 279.

For the foregoing reasons, the trial court judgment is reversed, and we grant plaintiffs’ motions for summary judgment against both the county and Prairie Path.

Reversed.

NASH and LINDBERG, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HOPSON, Defendant-Appellant.
    Second District
    No. 81-82
    Opinion filed November 12, 1981.

      Charmaine Tellefsen, of Tellefsen and Learn, of Glen Ellyn, for appellant.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE REINHARD

delivered the opinion of the court:

Defendant, William Hopson, entered a plea of guilty pursuant to a negotiated plea agreement with the State’s Attorney. Defendant later filed a motion to withdraw his plea. After a hearing, the court denied the motion. Defendant now appeals and alleges that the trial court erred in denying his motion to withdraw his guilty plea and that he was denied the effective assistance of counsel on that motion.

On June 14, 1979, defendant was charged in a five-count indictment with the offense of murder. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1.) On December 6,1979, at a conference held pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402) and prior to the court’s acceptance of defendant’s guilty plea, the assistant State’s Attorney related that the defendant’s guilty plea was to be entered pursuant to a plea agreement whereby defendant agreed to testify in the prosecution of two co-defendants in cases which arose from the same incident. In return for the defendant’s testimony, the State agreed to recommend that defendant receive 20 years in the Illinois Department of Corrections. The court then concurred in the plea agreement. Immediately thereafter, the defendant entered a plea of guilty to murder as alleged in count I. Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1).

The court then informed the defendant of the charges against him as follows:

“Now, the nature of the charge is that on or about May 21,1979, in DuPage County, you committed the offense of murder in that, without lawful justification and with intent to kill Scott Brunoehler, you strangled Scott Brunoehler, thereby causing the death of Scott Brunoehler * ”

In response to the question of whether he understood the charges, the defendant said, “Yes. I do.” The court then admonished the defendant pursuant to Supreme Court Rule 402, and the assistant State’s Attorney _articulated the factual basis for the guilty plea as follows.

On May 21, 1979, the body of Scott R. Brunoehler, an inmate at the Du Page County jail, was discovered hanging from a light fixture in the jail. The defendant was also incarcerated in the jail at the time of Brunoehler’s death. Investigation by the Du Page County sheriff’s office revealed that Brunoehler’s death was caused by defendant and two other inmates, James Devin and Robert Gan gestead.

The defendant’s participation in the crime involved holding down the victim’s feet while one of the other individuals held down his arms and the third individual strangled the victim with a rope. The defendant and Robert Gangestead then held up the victim’s body while James Devin tied the rope around a padlock, apparently suspended from the ceiling, “in such a manner as to make it appear as if the offense had been a suicide

On May 24, 1979, defendant gave a full confession to Detectives Tanke and Glinski of the Du Page County Sheriff’s Office. In the confession, Hopson indicated that James Devin told him that there was going to be a “blanket party.” Defendant observed James Devin take out a rope which had been braided from bed sheets and make the statement “[sjnitches don’t live.” The defendant made similar confessions to Detective Allen McKechnie, assistant State’s Attorneys Charles Emery and Robert Anderson on May 25, 1979, and to Deputy Robert Quinn of the sheriff’s office on May 30,1979.

After the assistant State’s Attorney articulated the factual basis for the plea the following colloquy ensued:

“MR. ANDERSON: I believe that the defendant has indicated that he is pleading guilty because he did so participate.
Is that correct, Mr. Hopson?
DEFENDANT HOPSON : I’m sorry, Yes.
THE COURT: Are those the facts that the State’s evidence would show, Mr. Hopson?
DEFENDANT HOPSON: Yes.”

The court then accepted defendant’s plea of guilty and set the date for the sentencing hearing.

At the sentencing hearing on May 1, 1980, the State nolle pressed counts II through V in the indictment and recommended a sentence of 20 years in the Department of Corrections. In response to a question from the court, the defendant stated:

“I just — from what I — I’ve already talked to the State’s Attorney, and they’ve explained pretty much what is happening and all the questions have been answered so far.
I just was wondering if the Court could reduce the charge, but I’ve been informed that you could not. That’s the only question I had.”

The court then sentenced defendant to 20 years in the Department of Corrections.

Thereafter, defendant filed a motion to vacate the plea of guilty on May 30, 1980, and new counsel was appointed to represent him. In an amended motion to vacate the plea the defendant alleged:

“6. That there was not substantial compliance with said Supreme Court Rule 402, Chapter 110A, Illinois Revised Statutes. In that, the court did not properly inform him of the nature of the charges pending against him as the Defendant was not advised that intent was an element of the crime that he was pleading guilty to.
7. That the record of the plea of guilty does not state a proper factual basis upon which to base a plea of guilty to the crime of murder.
8. That your Petitioner maintained and continues to maintain that he never intended to murder the victim herein.”

At the hearing on the motion to withdraw the guilty plea, defendant Hopson testified that on December 6,1979, the day the plea was entered, he was given the drugs adapin and tranxene by Deputy Quinn prior to being brought to court. Hopson stated that he had met with attorney William (sic) Zimmerman three or four times prior to the entry of the guilty plea and that at no time did Zimmerman explain the elements of the offense of murder or explain the element of intent. Hopson could not remember the events of the day the guilty plea was entered because his attention was diverted elsewhere. He testified that as the State’s Attorney was relating the factual basis for the guilty plea, his lawyer was informing him that his wife had left for Florida with his son. Finally, when asked if he understood from his conversations with Zimmerman, the State’s Attorney, and the Judge, that the offense of murder involved the element of intent, Hopson replied, “I, I presumed it, but he never explained it to me.”

On cross-examination, Hopson stated that his lawyer gave him the impression that if he didn’t plead guilty, he would receive the death penalty. The defendant also indicated that he could not recall other portions of the proceedings concerning the guilty plea because “when he told me I was going to get 20 years, I was in a state of shock.” Hopson further testified that the drugs adapin and tranxene were administered to him to calm him down. The drugs were supposed to be administered at different times, but, defendant stated, on December 6, both drugs were administered at the same time by Deputy Quinn.

On redirect examination, defendant testified that he responded, “I’m sorry, [y]es” to the State’s Attorney’s question at the December 6, 1979, hearing regarding defendant’s participation in the crime because he did not hear what was said. He also stated that, in his opinion, the drugs he had taken on December 6 impaired his ability to think. Lastly, Hopson testified that had he known that the State would have to prove that he intended to kill the victim, he would not have pleaded guilty.

The State then called David Disharoon, who is employed as a senior medical officer for the Du Page County sheriff’s department. Disharoon is responsible for the administration of medication to the residents of the Du Page County jail. A record of defendant Hopson’s physical examination indicated that he was receiving one tablet of 22.5 milligrams of tranxene and one tablet of 30 milligrams of dalmene daily. Disharoon classified these drugs as mild tranquilizers. Disharoon stated that, in his opinion, people taking these types of medication do not have any particular difficulty understanding what is happening around them, and they are able to understand questions asked them. On cross-examination, Disharoon testified that although the two drugs are never administered together, if they were, “you would not be totally confused, but you would be very sleepy and you would probably sleep.”

Arthur H. Zimmerman, defendant’s lawyer who represented him during the entry of the guilty plea, testified that he had spoken with Hopson seven or eight times prior to the entry of the guilty plea and that they discussed the matter of the guilty plea and the possibility of defenses on those occasions. On December 6, 1979, prior to the time the plea was entered, the two discussed the plea one final time and whether it would be more prudent for Hopson to defend the matter. Zimmerman and Hopson discussed using the defense of compulsion and whether the State’s Attorney’s office would accept a plea of manslaughter. On that day, Zimmerman could not notice any marked difference in Hopson’s manner. Hopson was competent and understood what was said to him. During Hopson’s contacts with Zimmerman, Hopson never related that he wanted to withdraw his plea of guilty.

On cross-examination, Zimmerman stated that Hopson during a part of the time was not paying full attention to the proceeding during the entry of the guilty plea because he was asking Zimmerman about his marital situation and child custody. Zimmerman indicated that he did not discuss in specificity the element of intent with Hopson but that Hopson had frequently told him that he did not intend to kill anyone.

Robert Anderson, the assistant State’s Attorney who had been assigned to prosecute Hopson, was then called by the State. Anderson had conversed with Hopson on December 6,1979, just prior to the entry of the guilty plea. Anderson testified that Hopson seemed fully aware of what was occurring and was competent to enter the guilty plea.

Defendant was granted leave to amend the motion to vacate to conform to the evidence that he had ingested some drugs prior to coming to court on December 6,1979. After hearing arguments from both sides, the court denied defendant’s motion to vacate his guilty plea.

Defendant’s first contention on appeal is that the trial court erred in refusing to vacate his plea of guilty because the factual basis for the plea contained in the record was inadequate to support the charge of murder.

Supreme Court Rule 402(c) requires that the trial court first determine the factual basis of a guilty plea before it enters final judgment on the plea. (Ill. Rev. Stat. 1979, ch. 110A, par. 402(c).) A factual basis for a plea of guilty may be established in a number of ways. The prosecuting attorney may summarize the testimony he would present; the facts in the case may be stated by witnesses; or, the facts of the case may be determined from an examination of the presentence report. (People v. Lumley (1979), 76 Ill. App. 3d 221, 223, 394 N.E.2d 1079.) In the present case, the assistant State’s Attorney recited a factual basis for the plea as set forth above and related the substance of a confession by the defendant given on several occasions. At the conclusion of this recitation, defendant’s attorney stipulated to and defendant acknowledged the truth of the facts asserted.

However, defendant asserts that the facts read into the record do not conform to the charge contained in count I of the indictment. Count I alleges that William Hopson “without lawful justification and with the intent to kill Scott Brunoehler strangled Scott Brunoehler thereby causing the death of Scott Brunoehler at a time when Scott Brunoehler was an inmate in the DuPage County Jail.” The factual basis as read into the record by the assistant State’s Attorney demonstrated that defendant’s involvement in the crime consisted of holding the victim’s feet down while James Devin strangled the victim. The fact that defendant was not the one who actually strangled the victim is not significant. The factual basis clearly exhibits that defendant would be guilty of the offense of murder pursuant to a theory of accountability. Section 5 — 2 of the Criminal Code of 1961 provides that a person is accountable for the conduct of another when “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c).) The defendant was properly charged in count I of the indictment since it is well established that a person who commits an offense under accountability principles can be charged and tried under an indictment for the substantive offense. People v. Buffington (1977), 51 Ill. App. 3d 899, 902, 366 N.E.2d 1099.

Defendant further contends, however, that the facts fall short of establishing his guilt on a theory of accountability since, to be accountable for the acts of another, the defendant must have the concurrent specific intent to promote or facilitate the commission of the offense. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 68, 405 N.E.2d 1121.) Defendant asserts that, although the factual basis indicates that he held the victim’s feet down, the record does not establish that he was aware that he was facilitating the murder of the victim, and thus, he lacked the necessary, specific intent. This assertion is not borne out by the record. The record indicates that just prior to the victim’s murder, James Devin told defendant that there was going to be a “blanket party” and that “snitches don’t live.” Also, the record indicates that, once it became apparent to defendant that a murder was taking place, defendant did not attempt to prevent the commission of the offense or retract his actions in any way. In fact, after the murder, defendant helped the other inmates in hanging the body from the ceiling of the jail in an attempt to make it appear as if the death was caused by suicide. Although mere presence at the scene of a crime does not make a person accountable for the criminal acts of another, proof of a common design can be drawn from the circumstances surrounding commission of the act. (People v. Kelly (1980), 89 Ill. App. 3d 400, 404, 411 N.E.2d 1012.) We need not decide whether this evidence would have been sufficient to prove that defendant had the requisite intent if the case had gone to trial. It is clear that the quantum of proof necessary to determine if there is a factual basis for the plea is less than that necessary to sustain a conviction after a full trial. (People v. Nyberg (1976), 64 Ill. 2d 210, 215, 356 N.E.2d 80, cert. denied (1977), 430 U.S. 970, 52 L. Ed. 2d 362, 97 S. Ct. 1654.) Accordingly, we find that the factual basis for defendant’s plea of guilty was clearly sufficient.

Defendant next asserts that his motion to withdraw his plea should have been allowed since it was not made voluntarily. Defendant contends that he did not understand the nature of the charge with regard to the requirement of the element of intent for the offense of murder. He further argues that his attorney never explained the indictment to him; that the attorney never explained the elements of the crime to him, particularly that of intent; and that he continually maintained to his attorney that he did not intend to kill anyone. At the time the plea of guilty was entered by the defendant, the court informed the defendant of the nature of the charge against him by stating that defendant was charged with committing the offense of murder “without lawful justification and with intent to kill ° * When asked if he understood the nature of the charge against him, defendant responded, “Yes. I do.” Supreme Court Rule 402(a) has been interpreted to require the trial judge to inform the defendant of the nature of the charge and ascertain whether the defendant understands it prior to accepting a plea of guilty. (People v. Robinson (1976), 63 Ill. 2d 141, 145, 345 N.E.2d 465.) From our review of the record, we are satisfied that the trial judge complied with the requirements of Rule 402.

Defendant, however, cites Henderson v. Morgan (1976), 426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253, in support of his contention that his misapprehension of law rendered his plea involuntary. In Henderson, the defendant was charged with first-degree murder. He later pleaded guilty to the charge of second-degree murder in the State trial court without having been informed by the court of the necessary element of intent to kill. After exhausting his State remedies, defendant filed a writ of habeas corpus in a Federal district court alleging that his guilty plea was involuntary because he was unaware that intent to kill was a necessary element of second-degree murder. On certiorari to the United States Supreme Court, the court held that defendant’s conviction was entered without due process since he did not receive adequate notice of the offense, and hence, his plea was involuntary.

However, we view the recent Illinois Supreme Court case of People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404, as being more relevant. In Barker, defendant pleaded guilty in the trial court to two counts of attempted murder. The defendant’s plea was entered pursuant to an agreement with the State whereby the State agreed to nolle pros the other counts in the indictment along with several other unrelated offenses. It was also agreed that defendant would not receive a sentence of more than 20 years. At the hearing, the defendant was not informed that intent to kill was a necessary element of the offense. The defendant then agreed in substance with the factual basis of the plea as stated by the State’s Attorney. Later, at the sentencing hearing, defendant stated, “I never had no intentions of taking no one’s life.” The court then imposed a sentence of 20 years. The defendant later filed a motion to withdraw his guilty plea and the trial court denied it. The defendant alleged in the supreme court, among other-things, that his pleas were not voluntary since the trial judge failed to admonish him that intent to kill was an essential element of attempted murder.

The supreme court rejected this argument and held that the trial judge’s admonishments to the defendant were sufficient and that defendant had failed to establish a basis for withdrawal of his guilty plea. In reaching this conclusion, the court noted that the indictments adequately alleged the element of intent, the indictments were read to the defendant before his guilty pleas were accepted, the defendant had received copies of the indictments prior to the hearing, and the defendant indicated at the hearing that he had no question about “what the charge is or what it means.” The court stated that the record satisfactorily showed that the defendant was informed of the nature of the charges, including the requirement of the specific intent to commit murder, and that he understood the nature of the charges. (83 Ill. 2d 319, 330, 415 N.E.2d 404.) The court then distinguished Henderson v. Morgan in the following manner:

“A significant difference between our case and Henderson is found in the fact that no formal charge of second-degree murder was ever made against the defendant in Henderson. He had originally been charged with first-degree murder, a crime which requires a different mental state than second-degree murder.
In our case, unlike in Henderson, the indictment informed the defendant that he was charged with performing certain acts with the intent to commit murder. Since he was charged with having the requisite mental state, as the court stated in Henderson, this element of the offense could be proved by the objective evidence that the defendant fired the shotgun in the direction of the officers. From the evidence summarized in the statement of the factual basis, a jury could find the defendant guilty of attempted murder regardless of his protestations that he did not intend to kill anyone when he fired the gun. We therefore do not agree with the defendant’s contention that his statement made at the sentencing hearing negated the requisite mental state or that it put the court on notice of his misapprehension of the law so as to render his pleas involuntary.” 83 Ill. 2d 319, 331-32, 415 N.E.2d 404, 409-10.

Henderson v. Morgan is inapplicable to the present case for the same reasons. The indictment charged the defendant with committing the act with the intent to kill. Unlike Henderson, the defendant did not plead guilty to a crime with which he was never charged. Also, much the same procedure that was followed in Barker was followed in the present case. Defendant acknowledged that he had received a copy of the indictment prior to the hearing, and the indictment alleged that defendant acted with “intent to kill Scott Brunoehler.” The trial judge informed defendant of the charge against him, including the fact that defendant had acted with the intent to kill, and defendant acknowledged that he understood.

Supreme Court Rule 402 does not require the court to explain to the defendant separately each of the elements of the offense. It requires that he be informed of “the nature of the charge.” (Ill. Rev. Stat. 1979, ch. 110A, par. 402(a)(1).) There is sufficient compliance with the Rule if an ordinary person in the circumstances of the defendant would understand what the charges are. (People v. Bennett (1980), 82 Ill. App. 3d 596, 599-600, 403 N.E.2d 50.) A guilty plea is not rendered involuntary by the failure to inform the defendant expressly that the charged offense requires proof of specific intent. People v. Cosey (1978), 66 Ill. App. 3d 670, 672-75, 384 N.E.2d 95.

Next, defendant contends that his plea was involuntary because his mental state was altered due to the ingestion of certain drugs. Deputy David Disharoon testified that the drugs that defendant had been receiving would not cause a person to have any particular difficulty in understanding what is happening around him. Defendant’s suggestion that his incoherence was caused by ingesting two different drugs at the same time was contradicted by Disharoon’s testimony that tranxene and dalmene were never administered together at the jail, and, if they were, they would not cause the person to become confused but merely sleepy. Also, both Arthur Zimmerman and assistant State’s Attorney Robert Anderson testified that defendant was competent and understood the proceedings on December 6, 1979. Allowing the withdrawal of a guilty plea is, under Rule 604(d), a matter for the trial court’s discretion. (People v. Hale (1980), 82 Ill. 2d 172, 175-76, 411 N.E.2d 867.) We do not find an abuse of discretion in the trial court’s rejection of this contention. '

Defendant’s next arguments on appeal, i.e., that his plea should be vacated because of his lawyer’s statement that if defendant didn’t plead guilty he would receive the death penalty and because he was not paying full attention to the proceedings on December 6 because of his preoccupation with his marital difficulties, are not properly before this court. These issues were not raised in the defendant’s motions to withdraw and could be deemed as waived. (People v. Adkisson (1980), 83 Ill. 2d 1, 7-8, 413 N.E.2d 1238.) Supreme Court Rule 604(d) provides in pertinent part:

“Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (Ill. Rev. Stat. 1979, ch. 110A, par. 604(d); see also People v. Bennett (1980), 82 Ill. App. 3d 596, 599, 403 N.E.2d 50.)

Even if these issues were not waived by defendant’s failure to include them in the motion to withdraw, the record indicates that defendant’s counsel denied telling him that if he didn’t plead guilty he would get the death penalty. Also, the evidence was disputed as to defendant’s attentiveness at the time the plea of guilty was entered. Both of these contentions appear to have been considered and rejected by the trial judge. From our review of the record, we cannot say that this conclusion was an abuse of discretion.

Defendant next contends that he was denied effective assistance of counsel in the proceedings on his motion to vacate his guilty plea. Defendant first cites his counsel’s failure to file a certificate in compliance with Supreme Court Rule 604(d). (Ill. Rev. Stat. 1979, ch. 110A, par. 604(d).) Rule 604(d) provides in relevant part:

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (Ill. Rev. Stat. 1979, ch. 110A, par. 604(d).)

Although we do not approve of counsel’s failure to file the certificate, Illinois.courts have held that strict compliance with the filing provision of 604(d) is not necessary where the record reveals that counsel has performed all the functions required by the Rule. (People v. Lange (1978), 59 Ill. App. 3d 603, 605, 375 N.E.2d 919; People v. Thompson (1978), 57 Ill. App. 3d 100, 101, 372 N.E.2d 1105.) In such a case, the failure to file the certificate will be viewed as harmless error. (Lange, at 605; Thompson, at 101.) We believe that this is the case here. The record shows that a transcript of the December 6,1979, plea of guilty was filed on May 2,1980. A motion to vacate the plea of guilty was filed on May 30, 1980, and an amended motion to vacate the plea of guilty was filed on August 14,1980, which alleged that defendant lacked the requisite intent and that he was unaware that intent was an element of the crime. The amended motion also alleged an inadequate factual basis. At the hearing on this motion, defendant’s counsel ably questioned witnesses with regard to the defendant’s intent, his ingestion of drugs, and his state of mind at the time of the entry of the guilty plea. Defendant’s counsel was then granted leave to amend the motion to reflect the fact that defendant had ingested drugs on December 6, 1979, prior to the time of the entry of the guilty plea. Further, it appears from our examination of the record of this hearing that defendant’s counsel had examined the court file and report of proceedings of the plea of guilty. We find it evident from the record that defendant’s attorney consulted with the defendant personally to ascertain his contentions of error in the entry of the plea of guilty, that the attorney examined the court file and report of proceedings of the plea of guilty and that he made amendments necessary for adequate presentation of any defects in those proceedings. Also, as in People v. Lange, the defendant was advised by the court in strict compliance with Supreme Court Rule 402. (People v. Lange (1978), 59 Ill. App. 3d 603, 605, 375 N.E.2d 919.) Under these facts counsel’s failure to file the certificate as required by Supreme Court Rule 604(d) was harmless error.

The defendant also argues that he was denied effective assistance of counsel on the motion to withdraw the plea of guilty by his counsel’s failure to present allegations at that hearing on the inadequate representation of defendant by the counsel representing him at the time he entered his plea of guilty.

Our independent review of the record discloses no evidence of actual incompetence of either of defendant’s previous counsel which produced substantial prejudice to defendant and without which the result of the hearing on defendant’s motion to vacate would have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203; People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.) We therefore hold that defendant was not denied the effective assistance of counsel on his motion to vacate his guilty plea.

From a careful review of the record, we find nothing to show that the trial court erred in denying the motion to withdraw the guilty plea or that the ends of justice would be better served by submitting the case to trial.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.


author: Mr. JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY A. REYNOLDS et al., Defendants-Appellees.
    Second District
    No. 80-956
    Opinion filed November 13, 1981.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Robert L. Thompson and Barbara A. Preiner, Assistant State’s Attorneys, of counsel), for the People.
    Robert K. Kilander, of Laraia and Kilander, of Wheaton, and Stephen J. Civinelli, of Civinelli, Bakalia and Culliton, of Bloomingdale, for appellees.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

On November 25, 1979, the defendants were arrested and charged with theft (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)(1)), burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(a)), and possession of burglary tools (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 2(a)). In March of 1980, the trial court granted the defendants’ motion to quash the arrest and suppress the evidence seized at the time of the arrest. The State appeals from the granting of the motion to suppress.

At the hearing on the motion to suppress, the defendants called Officer Glugla of the Hanover Park Police Department. Officer Glugla testified to the following. On November 25, 1979, at approximately 11:15 p.m., he observed a station wagon pulling a trailer which, to the best of his recollection, was about 10 feet long and 4% feet tall. Because the trailer’s taillights were not operating, he stopped the vehicle. After he stopped the vehicle, he approached it from behind the trailer. The open trailer was covered with a tarpaulin, which did not completely cover the back end of the trailer. From this perspective, he determined that the trailer contained several cartons with the word “MAGNAVOX” printed on the sides of the cartons.

The officer then testified that he approached the driver and informed him of the taillight violation. The driver, the defendant Reynolds, then told the officer that they were lost, and that he could not remember to what street address he was going. The officer tried to help him remember by suggesting several street names.

The officer asked the occupants of the car, the defendants, Wright and Reynolds, and a third person, Norman, where they had acquired the equipment in the trailer. The responses differed. The officer asked the defendants if they had a bill of lading on the merchandise. They indicated that they did not.

The officer also asked the identification of all of the occupants. He then ran a radio check on the occupants as well as the station wagon and trailer. The officer learned that there were no warrants on the occupants and that the station wagon was registered to a Mr. Norman and the trailer was registered to a Peckins TV store in Roselle. The officer then requested the Roselle Police Department to do a security check on Peckins TV. While the officer was making these checks, he was standing near the trailer and could again observe the boxes. Because it was a windy, rainy evening, the tarpaulin flapped in the wind and further exposed the contents of the trailer. The Roselle Police Department then radioed the officer and told him that Peckins TV store was secure.

The officer testified that he then asked the defendants to follow him to the police station. When he made this request, he did not tell the defendants that they were under arrest. He did testify, however, that if the driver had decided not to follow him, the officer would have stopped the vehicle again because of the unlit trailer.

The defendants did follow the officer to the Hanover Park Police Station. Another police vehicle followed directly behind them. Fifteen to twenty minutes later, a Mr. Peckins from Peckins TV store arrived at the station. Mr. Peckins indicated that the trailer and the televisions inside the trailer belonged to his store, and that the defendants did not have permission to possess them. At that time, and with Mr. Peckins’ approval, the trailer was searched. The search revealed several television sets and burglary tools.

The officer admitted that he had never mentioned the taillight violation at the preliminary hearing, even though at that hearing he responded in the affirmative to defense counsel’s question as to whether he had related all the conversation that occurred between himself and the defendants. The officer also testified that eventually a traffic citation did issue on the taillight violation.

After the hearing and arguments on the motion, the court found that the defendants were illegally arrested and detained when the officer directed the defendants to follow him to the police station. The court found that this arrest was performed without probable cause. Thus, the trailer and its contents were determined by the court to be the fruit of the illegal arrest and seizure, and the motion to suppress was granted.

The test to determine whether an arrest occurred is whether a reasonable, innocent person in the same circumstances would have considered himself arrested. (People v. Gale (1979), 72 Ill. App. 3d 23, 26.) A person is arrested when there has been a restriction of his freedom of movement, or a restraint of his person. People v. Jacobs (1979), 67 Ill. App. 3d 447, 449.

Here, the evidence indicates that the uniformed police officer detained the youths for a period of time. During that time they were asked numerous questions. Eventually, the officer “requested” that they follow him to the police station. Earlier the officer had called for the assistance of an additional unit. On the journey to the police station, the defendants’ vehicle was bracketed between two police vehicles.

The trial court found that these actions constituted an arrest of the defendants. At a hearing on a motion to suppress, it is the function of the trial court to weigh the testimony, to assess the credibility of the witnesses, and to draw reasonable inferences from their testimony. (People v. Brown (1980), 81 Ill. App. 3d 271, 274; see also People v. Akis (1976), 63 Ill. 2d 296, 298.) Once the trial court has ruled on the motion to suppress, a reviewing court will not disturb that order unless it is manifestly erroneous. (People v. Brown (1980), 81 Ill. App. 3d 271, 274.) We cannot say that the trial court’s finding that an arrest occurred is manifestly erroneous.

Similarly, the trial court’s finding that the officer did not have probable cause to arrest the defendants is not against the manifest weight of the evidence. While at the time of the initial traffic stop, there were certain circumstances which would have given Officer Glugla an “articulable suspicion” that criminal activity was afoot, such circumstances only justify a temporary detention of the defendant in order to investigate. (See People v. McGowan (1977), 69 Ill. 2d 73.) In this case, as a result of the officer’s investigation, he learned that Peckins TV store was secure. This information negated the incriminating nature of most of the unusual circumstances present in this case. The trial court did not err in finding that the officer did not have probable cause to arrest, and in suppressing the fruit of that illegal arrest.

The State, citing Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, contends that because the defendants did not own the trailer in which the seized goods were found, the defendants lack standing to assert any fourth amendment rights under the Federal Constitution. The State’s reliance upon Rakas is misplaced.

In Rakas, the defendants attempted to assert that their right of privacy under the fourth amendment had been violated when the police searched the vehicle in which they had been riding. The vehicle was not owned by either of the defendants. In Rakas there was no claim that the police did not have cause to stop the vehicle in which the defendants had been riding or that, prior to the search, they had been illegally arrested. Under such circumstances, the United States Supreme Court held that they did not have standing to assert that their personal right of privacy had been violated by the search of a third person’s property.

In the instant case, the defendants are not claiming a privacy right in another person’s property, rather they are asserting a violation of their basic fourth amendment right to be free from unreasonable seizures of their persons. This basic right has long been recognized and the evidence obtained as a direct result thereof must be suppressed as the fruit of the poisonous tree. Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407; People v. Myles (1978), 62 Ill. App. 3d 931, 934.

The motion to suppress was properly granted.

Affirmed.

SEIDENFELD, P. J., and LINDBERG, J., concur.


author: Mr. PRESIDING JUSTICE KASSERMAN

text:
    JIM BAKER, Plaintiff-Appellee, v. ILLINOIS RACING BOARD, Defendant-Appellant.
    Fifth District
    No. 80-470
    Opinion filed September 22, 1981.

      Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellant.
    Grey Chatham, of Hillebrand, Cook & Shevlin, of East St. Louis, for appellee.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Illinois Racing Board, appeals from an order of the circuit court of St. Clair County reversing the Illinois Racing Board’s imposition of a suspension on plaintiff, Jim Baker.

The Illinois Racing Board and stewards are charged by law with regulating horse racing in Illinois pursuant to the Horse Racing Act of 1975 (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 1 et seq.). The Illinois Racing Board is a department of the State, and its members are executive officers appointed by the Governor. (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 4.) Racing stewards are representatives of the Board at race meets licensed by the Board, and they supervise horse racing meets as provided by the rules and regulations of the Board. (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 3.19.) The stewards are empowered to investigate violations of Board rules and to revoke or suspend occupational licenses upon a finding that the rules have been violated. (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 16.) The stewards’ findings may be appealed to the Racing Board for a de novo hearing, and the Board’s decision may be appealed to the circuit court for administrative review. Ill. Rev. Stat. 1979, ch. 8, pars. 37 — 16(c) and 37 — 46.

Plaintiff, Jim Baker, was licensed as a vendor by the Illinois Racing Board. He operated a tack shop, designated as Baker’s Turf Supply, at the Cahokia Downs and Fairmont Park race tracks. On March 15, 1978, plaintiff received a notice from the State stewards that he was charged with violating Harness Rules 21.5(b) and 21.6. The notice of hearing stated:

“March 15,1978
TO: Mr. Jim Baker
You are hereby advised of a scheduled Stewards’ hearing regarding your alleged violation of Illinois Racing Board rules—
No. 21.5(a)
No person, except a veterinarian licensed by the Board, shall have in his possession within any race track enclosure any hypodermic syringe or needle or any other instrument capable of being used for the injection into a horse of any chemical substance.
No. 21.5(b)
No person, except a veterinarian licensed by the Board, shall have in his possession within any race track enclosure any substance prepared for the purpose of being injected into a living being.
No. 21.6
No person, except a veterinarian licensed by the Board, shall have in his possession within a race track enclosure any chemical substance which is prohibited from being dispensed by any Federal or Illinois law without a prescription, unless he is in possession of documentary evidence that a valid prescription has been issued to him for such chemical substance. For purposes of this rule, a prescription shall not be valid unless it contains a specific dosage for the particular horse or horses to be treated by the chemical substance which is the subject of the prescription.
No. 2.07(g)
Reasons for Denial of License—
No license shall be issued by the board to any person—
G) Who is engaged in any activity or practices that are undesirable or detrimental to the best interest of the public and the sport or racing.
This hearing will be held at 10:00 A.M., March 23,1978, at Cahokia Downs. Should you fail to appear, it may result in your immediate suspension. Also, be advised of your right to have legal counsel present during this hearing.
Richard E. Garrett
Richard E. Garrett
State Steward.”

After the hearing on March 23, Baker was found guilty of violating Harness Rules 21.5(b) and 21.6 on the basis that he possessed and sold prescription drugs while on the grounds of Cahokia Downs and Fairmont Park. It was also stated that Baker was not a licensed pharmacist. The stewards suspended Baker’s vendor’s license for the remainder of 1978. Baker requested a de novo hearing before the Illinois Racing Board. The hearing before the Racing Board was held on August 28, 1978. Baker objected at the commencement of the hearing to the adequacy of the notice he received. At the hearing, Edward Fitzsimmons, an investigator with the Department of Law Enforcement, testified to several conversations with Baker and two visits he made to Baker’s tack shop. Fitzsimmons testified that on January 19, 1978, he had a conversation with Baker. In response to his questions, Baker stated that he had obtained phenylbutazone (“bute”) which he sold to his customers. Phenylbutazone is an anti-inflammatory medication administered to horses. Federal law restricts this drug to use by or on the order of a licensed veterinarian. (21 C.F.R. §520.1720a (1981).) Fitzsimmons stated that on January 20, 1978, he reviewed Baker’s sales records. Baker told the investigators that the cash sales receipts for “bute” were marked either “Vitamin BUT” or “Bt.P.” Fitzsimmons testified that he and Agent McCoy searched the tack shop on January 25 and seized a box labeled Azium powder. Azium powder is a trade name for dexamethasone. Dexamethasone is used to treat inflammatory conditions in horses. Federal law also restricts the use of this drug to licensed veterinarians or on the order of a licensed veterinarian. (21 C.F.R. §520.540b (1981).) Another interview took place at the Illinois Bureau of Investigation’s office in Belleville on January 26, 1978. Fitzsimmons testified that in the January 26 interview Baker said that he had obtained the “bute” from Dr. Morgan, a practicing veterinarian. He also stated that he sold 99 percent of his stock of McKay’s injectables to two veterinarians and the remainder to track people. McKay’s injectables are an anti-inflammatory medication for horses administered by injecting a needle into the horse.

James McCoy, an agent with the Illinois Division of Investigation, also testified. He testified that he and Fitzsimmons had a conversation with Baker on January 31,1978, at Fairmont Park. On that occasion Baker gave his permission for McCoy and Fitzsimmons to search his warehouse and trailer. McCoy testified that a case of McKay’s injectables was found.

Baker testified that he operated a tack shop and that as part of his operation he sold Azium, McKay’s injectables and “bute.” He also testified that he ordered Azium and “bute” on Dr. Morgan’s account because the supplier could not sell directly to him since he was not a licensed pharmacist. Baker also stated that he did not believe there was anything wrong with his sale of Azium or “bute.”

On November 16,1978, the Racing Board entered its order affirming the stewards’ 9-month suspension. The Board found that Baker had sold Azium powder, phenylbutazone tablets, McKay’s injectables and combiotic injectables. The Board further found that Baker was not a licensed pharmacist or veterinarian. The Board concluded that Baker violated Harness Rule 21.5(b) by possessing injectables within the race track enclosure and Harness Rule 21.6 by possessing prescription drugs, Azium and phenylbutazone, without a prescription.

Baker subsequently filed a complaint for administrative review in the circuit court. The complaint alleged that plaintiff was not given adequate notice of the charges against him and that the findings of the Racing Board were against the manifest weight of the evidence. The circuit court, after a hearing, entered an order stating that the notice to plaintiff was insufficiently clear or specific to fully advise plaintiff of the charges against him.

Defendant appeals from this order, contending that the notice sent to plaintiff was sufficiently specific to afford him due process and that the decision of the Board is supported by the evidence.

The charges in administrative proceedings need not be drawn with the same precision required of pleadings in judicial actions. (Kelly v. Police Board (1975), 25 Ill. App. 3d 559, 323 N.E.2d 624.) They need only be sufficiently clear and specific to allow preparation of a defense. (Kelly v. Police Board; Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, 360 N.E.2d 536.) The test of the adequacy of notice is whether the party receiving the notice should have anticipated the possible effects of the hearing on the basis of the notice. Hyon Waste Management Services, Inc. v. City of Chicago (1977), 53 Ill. App. 3d 1013, 369 N.E.2d 179; Department of Revenue v. Jamb Discount (1973), 13 Ill. App. 3d 430, 301 N.E.2d 23.

In the instant case, the notice sent to plaintiff informed him that a hearing would be held regarding his violation of Harness Rules 21.5(b) and 21.6. The rules were set forth in full in the notice of hearing. The rules plaintiff was charged with violating were sufficiently narrow in scope and specific in coverage so as to advise plaintiff of the charges he would be required to defend.

Rule 21.5(b) prohibits the possession within the race track enclosure of any substance prepared for the purpose of being injected into a living being. Plaintiff stocked and sold McKay’s injectables which he admittedly knew were administered to a horse by injection. Plaintiff could readily apprehend from the notice that he would be required to defend himself against the charge of possessing an injectable substance, McKay’s injectables, in his tack shop in violation of Rule 21.5(b). Rule 21.6 prohibits the possession of any prescription drug within the race track enclosure without a prescription stating the specific dosage to be administered to the horse. Plaintiff testified that he asked to see a prescription before selling “bute” to a customer. He also testified that when he ordered the “bute” and Azium powder, he requested that it be billed to Dr. Morgan’s account because the drug company would not sell directly to a person who was not a licensed pharmacist. Plaintiff was sufficiently informed by the notice that he would be required to defend himself against charges of possessing prescription drugs, “bute” and Azium powder within the race track enclosure without valid prescriptions.

The notice also cited Harness Rule 2.07 which indicated that these charges constituted grounds for denial of a license. At the bottom of the notice plaintiff was informed that failure to appear at the hearing might result in immediate suspension.

In Hyon Waste Management Services, Inc. and Jamb Discount the court found the notice inadequate because it failed to completely apprise defendants as to the penalties which might result from the administrative proceeding. The notice in the instant case informed Baker that the charges constituted grounds for denying him a license and that his license could be denied or suspended as a result of the hearing, so he was fully informed of the possible consequences of the hearing.

We conclude that the charges contained in the notice were sufficiently clear and specific to allow plaintiff to prepare a defense. Plaintiff was also fully apprised in the notice of the possible effects of the hearing. Moreover, plaintiff was afforded a complete de novo hearing before the Racing Board on the same charges subsequent to the hearing before the State stewards. Plaintiff, therefore, had a second opportunity to prepare a defense after becoming aware of the exact charges against him in the first hearing. Therefore, we conclude that the trial court erred in finding that the notice was insufficiently clear or specific to fully advise plaintiff of the charges against him.

Further, after having reviewed the record before us, we conclude that the evidence was sufficient to find plaintiff in violation of Harness Rules 21.5(b) and 21.6.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed.

Reversed.

KARNS and WELCH, JJ., concur.


author: Mr. JUSTICE WELCH

text:
    SYLVIA McCRORY HICKOX, Plaintiff-Appellant, v. JERRY W. ERWIN, Defendant-Appellee.
    Fifth District
    No. 80-285
    Opinion filed October 13, 1981.

      Robin Todd, of Flora, for appellant.
    James B. Moses, of Smith, McCollum, Riggle & Moses, of Flora, for appellee.
   Mr. JUSTICE WELCH

delivered the opinion of the court:

The plaintiff brought suit in the Circuit Court of Richland County to recover damages for personal injuries allegedly resulting from an auto accident involving the defendant. A jury found for the defendant and the trial court entered judgment on that verdict. The plaintiff appeals from that judgment and argues that (1) the jury’s verdict was against the manifest weight of the evidence, (2) an instruction was improperly given to the jury over plaintiff’s objection, and (3) the trial court unduly restricted plaintiff’s cross-examination of a defense witness.

At about noon on October 14, 1972, an automobile driven by the plaintiff, Sylvia Hickox, was travelling east on U.S. Highway 50, followed by a pickup truck operated by the defendant, Jerry Erwin. Both parties were the sole occupants of their respective vehicles. Erwin had driven behind Hickox since both had left Clay City, Illinois. Each was heading for Olney. It was a “drizzly” afternoon, according to Erwin, and the roads were wet, but the weather did not affect visibility. Erwin and Hickox were travelling at 45 or 50 miles per hour; Erwin remained between 150 and 200 feet behind Hickox.

Approximately three miles after the vehicles had passed the intersection at Noble, Illinois, both drivers noticed a disabled vehicle facing north in a long driveway which ran perpendicular to U.S. 50. The hood on that car was open and two people were standing near the car. At this location, U.S. 50 is a two-lane highway bounded by farmland and occasional houses which are set several hundred feet from the highway. There are no traffic lights, stop signs, major intersections, or obstructions to vision in the immediate vicinity of the driveway.

Erwin saw the disabled vehicle at a distance of 200 or 300 yards. He did not recognize it or the people standing with it. Hickox testified that when she was within “4 or 5 semi-tractor-and-trailer lengths” of the car, she realized that it belonged to her friend, Mona Powell. As soon as she made this recognition, Hickox stated, she started to slow by applying her brakes and she activated her left-turn signal. Neither Powell nor Erwin, both of whom said that they were observing the Hickox auto, remembered seeing a turn signal.

As soon as he saw the brake lights on the Hickox car, Erwin testified, he hit his brakes. Erwin saw those brake lights come on approximately 60 feet west of the driveway occupied by the disabled car, and not 4 or 5 truck lengths away. Erwin pumped his brakes thrice, and did not keep them depressed because his truck slid to the side during braking, due to the wet pavement, as he stated. Erwin realized that he could not stop in time, so he let up on the brakes and tried to swerve to the right of Mrs. Hickox’ car. He was unsuccessful, and instead, the left front of the Erwin truck struck the right rear of the Hickox auto at 15 or 20 miles per hour. Both vehicles moved forward and to the right, in a southeasterly direction, approximately 15 or 20 feet before coming to a halt 20 feet from each other. It is not known whether the Hickox vehicle was stopped when it was hit. The collision left no skid marks on the pavement, but the parties agreed that the impact took place about 20 feet west of the intersection of the driveway and U.S. 50.

In addition to testifying that she did not see a turn signal on the Hickox auto, Mona Powell also stated that, before the impact, the driver’s window on Mrs. Hickox’ car was rolled down, and Mrs. Hickox called out to her. Mona Powell waved her on, for she did not need assistance. At trial, Mrs. Hickox testified that she did not communicate with Mona Powell until after the impact.

The defendant was issued a traffic citation for failure to reduce speed to avoid an accident, in violation of section 11 — 601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95*2, par. 11 — 601(a)). He entered a plea of guilty to this charge and paid a $15 fine.

It is first argued by the plaintiff that the jury’s decision that the defendant is not liable to her is against the manifest weight of this evidence. In order to establish that she was entitled to a directed verdict in her favor, the plaintiff must show that, viewing the evidence most favorably to the defendant, the evidence so overwhelmingly favors the plaintiff that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

The view of the accident offered by the plaintiff is quite consistent with the version given by the defendant and Mona Powell. In fact, we note only two discrepancies between the two sides — namely, whether the plaintiff had her left-turn signal on, and whether she called out to Mona Powell before the collision. Otherwise, it is undisputed that Erwin was following Mrs. Hickox at 45 or 50 miles per hour at a distance of 150 or 200 feet. Both drivers saw the Powell car, and Mrs. Hickox applied her brakes when she was at least 200 feet away. Erwin first noticed the brake lights when he was 60 feet from the Powell car. He applied his brakes three times, but still collided with the plaintiff’s vehicle.

A driver who follows another vehicle has a duty to maintain sufficient distance behind the preceding vehicle in order to stop or slow his vehicle suddenly, if necessary. (Burroughs v. McGinness (1978), 63 Ill. App. 3d 664, 380 N.E.2d 37; Apato v. Be Mac Transport Co. (1972), 7 Ill. App. 3d 1099, 288 N.E.2d 683; Ill. Rev. Stat. 1979, ch. 95K, par. 11 — 601(a).) He must also maintain a safe lookout for traffic ahead. Burroughs v. McGinness; Gullberg v. Blue (1980), 85 Ill. App. 3d 389, 406 N.E.2d 927; Polkey v. Phillips (1980), 86 Ill. App. 3d 677, 408 N.E.2d 348.

The plaintiff points to this court’s opinion in Burroughs v. McGinness to suggest that the conduct of the defendant violated these principles and constituted negligence. In Burroughs, the defendant testified that he had noticed the plaintiff’s car from nearly one-half mile away. From that distance, he claimed, he could not tell if it was moving. The plaintiff’s car was in the right hand lane of a four-lane road, travelling at 8 or 10 miles per hour while in the process of making a right turn into a shopping center behind another car. The defendant, who was following at approximately 35 miles per hour, did not begin to brake until 50 to 75 feet from plaintiff’s car, and, being unable to stop, struck the rear end of that car. This court, in reversing the jury’s verdict for the defendant, found “abundant evidence” in the record to establish the defendant’s negligence.

The case is extremely similar to Burroughs in many respects. In both cases, the defendant was aware of the plaintiff’s car ahead, but did not brake until about 60 feet away. It was controverted whether plaintiff’s turn signal was on, in Burroughs and here. Both defendants were familiar with the vicinity of the accidents, and it was raining in both incidents, although it was dark in Burroughs.

We are of the opinion that the plaintiff’s case here is somewhat stronger than that presented in Burroughs. Here, the accident took place in mid-day and the plaintiff applied her brakes long before the driveway, while in Burroughs, the setting was night, and the plaintiff was moving forward, and not braking, when struck by the defendant. Moreover, Erwin was cited for, and entered a plea of guilty to, failure to reduce speed to avoid an accident. While this traffic violation, by itself, is insufficient to establish defendant’s negligence (Gullberg v. Blue), it is still some evidence of negligence. Doris v. Bradley (1979), 76 Ill. App. 3d 890, 395 N.E.2d 636.

All of the circumstances presented in this record show that defendant Erwin did indeed fail to keep a proper lookout for the car in front of him. Under the authority of Burroughs, there is abundant evidence to establish defendant’s negligence as the proximate cause of plaintiff’s injuries, if the plaintiff is shown to have been free of contributory negligence.

The defendant urges that the record proves that the plaintiff was contributorily negligent in making a sudden stop on the highway without giving sufficient warning, and by failing to use her left-turn signal. At trial, he offered a pattern jury instruction which incorporates these arguments. It was given over plaintiff’s objection, and, in effect, states that a motorist may not stop, decrease speed or turn unless an appropriate signal is given to the following driver, and that a turn signal must be given 100 feet before turning in a business or residential district and 200 feet if not in such a district. Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971).

There is no evidence in the record to support the inference that the plaintiff came to a sudden stop. All signs point to the conclusion that she began to slow her car a considerable distance away from the driveway, and the absence of skid marks on the road bolsters that conclusion. The plaintiff was thus not contributorily negligent in any way by braking too quickly.

The trial evidence is not conclusive on the presence or absence of a turn signal. However, the argument that this specific omission establishes contributory negligence in a rear-end collision was addressed by this court in Burroughs. There, in the collision described above, it was held that even if the lack of a turn signal might be considered the “failure to exercise ordinary care,” it was not a proximate cause of the collision precisely because it cannot be said that the accident would not have occurred if the plaintiff had used his turn signal. (See also Zaeh v. Huenke (1979), 70 Ill. App. 3d 39, 388 N.E.2d 434.) That conclusion is even more evident in this case, as the plaintiff gave the defendant ample warning of her intent to stop or turn by applying her brake lights. It is difficult to see how a turn signal would have added to that warning. We adopt the holding of Burroughs on this issue, that the plaintiff’s failure to use a turn signal did not show that she was contributorily negligent, for that omission was not a. proximate cause of the accident.

As the defendant’s negligence was the proximate cause of plaintiff’s injuries, and as the plaintiff was not contributorily negligent, we reverse the judgment of the Circuit Court of Richland County which found for the defendant. Although not strictly necessary to our decision, we hold that in the absence of any evidence on the plaintiff’s contributory negligence, it was error to submit defendant’s instructions on contributory negligence, over plaintiff’s objections. We do not decide whether the trial court improperly restricted plaintiff’s cross-examination of a defense witness. This cause is remanded with directions to enter judgment for the plaintiff and to hold a new trial on the issue of plaintiff’s damages only.

Reversed and remanded.

KASSERMAN, P. J., and KARNS, J., concur.