author: MORAN, J.

text:
    Robert G. Schaefer, Plaintiff-Appellee, v. Oscar Stamm, d/b/a Stamm Trucking Company, Defendant-Appellant.
    Gen. No. 65-69.
    Fifth District.
    March 9, 1966.

      Johnson, Ducey & Feder, of Belleville (Philip G. Feder, of counsel), for appellant.
    Plattner, Neville and Rice, of East St. Louis (Edward Neville, of counsel), for appellee.
   MORAN, J.

This is an appeal from a plaintiff’s verdict of $7,500 in the trial court. The plaintiff was injured when the defendant’s truck caught a wire laid across Red House Road by the plaintiff’s employer, Union Electric Company, and flipped the plaintiff, who was standing on the wire, into the air and fractured his sacrum.

Robert Schaefer, an employee of Union Electric Company, was, at the time of the accident, acting as a signalman for a work crew stringing wire across Red House Road in St. Clair County, Illinois, directing traffic across the wire and through the work area. An electric company truck was parked on the side of the road with its blinker lights flashing. While directing traffic, the plaintiff was standing on a three-eighths inch shiny copper wire which was lying across the road; plaintiff testified he stood on the wire to reduce the wire’s vibration.

Defendant’s truck had come to a stop at plaintiff’s signal approximately fifty to seventy-five feet from the wire. On Schaefer’s signal to come ahead, the driver accelerated and crossed the wire at a speed between twenty and thirty miles per hour. Defendant’s driver admits he saw the wire lying across the road when it started up. Other trucks which had crossed the wire at three to five miles per hour experienced no difficulty; the trailer of defendant’s truck, however, engaged the wire Schaefer was standing on and the plaintiff was catapulted or flipped into the air. In answer to a question from defendant’s counsel, the plaintiff testified it was his experience as a signalman that excessive speed will cause a wire to be picked up by a vehicle’s wheels.

The plaintiff observed the approach of the truck, but did not signal the driver to slow down and remained standing on the wire. He explained that, while he did see the truck’s approach to the wire, he was glancing in other directions watching for traffic and that he thought the driver would slow to the speed used by previous trucks.

The plaintiff fractured his sacrum in the fall and was unable to work for seven weeks immediately following the accident. His salary was $150 per week. He also missed a total of six additional weeks’ work because of days missed intermittently after his return to work, due to pain in his back or visits to doctors. He has suffered and is suffering recurring pain and was required to wear a back brace for the better part of two years.

The defendant, Stamm Trucking Company, has appealed, alleging that the Circuit Court erred in denying its motion for a directed verdict or a judgment notwithstanding the verdict because the plaintiff failed to prove the defendant was negligent and because the plaintiff is by his own admission guilty of contributory negligence. Defendant also complains the verdict amount of $7,500 was excessive and that the defendant is entitled to a new trial.

The jury heard evidence that a truck with its warning lights flashing marked the work area; that the driver saw the shiny copper wire; that the preceding truck and other trucks had crossed the wire at three to fiye miles per hour in plain view of the defendant’s driver; that defendant’s driver crossed the wire at between twenty and thirty miles per hour; and that excessive speed will cause a vehicle’s wheels to pick up a wire.

Certain facts about the operation of motor vehicles are common knowledge to today’s driver. Among these facts is that a vehicle’s tires will, as they revolve, pick up rocks and other objects the tires cross and spin these objects upward and to the rear. Such occurrences increase in frequency when there is increased weight on the spinning wheel or when the wheel is spinning rapidly. Any driver who has followed another car on a wet road is aware of the spray on his windshield, and if a driver has ever followed a rapidly moving truck on a gravel or rocky road, he is even more aware of the effect a vehicle’s tires have upon objects on the road. It seems reasonable to infer that the driver of a tractor trailer grain truck would know the effect his turning wheels would have on an object they crossed. All men are presumed to know those things which are matters of common knowledge, and should be held to have reasonably anticipated such happenings as in the ordinary course of things reasonable men should know will probably occur. (Kahn v. James Burton Co., 5 Ill2d 614,126 NE2d 836.)

Appellant also takes the position that the plaintiff controlled the defendant driver’s conduct by the hand signals he gave and as such is equally at fault for any damages incurred. The appellant urges “. . . the facts in this case absolutely and positively establish contributory negligence as a matter of law on the part of the plaintiff in his conduct immediately prior to and at the time of the occurrence . . . .” The testimony referred to is that the plaintiff was in control of traffic at that point, signaled the defendant’s driver to proceed, did not signal him to reduce his speed and remained standing on the wire knowing the truck was proceeding across it. Defendant contends that any reasonable person would anticipate that if for any reason the wire was caught, jerked or pulled, that a person standing on it would be thrown off, so that it is likewise, common knowledge that plaintiff placed himself in a position of danger under the circumstances here present.

Contributory negligence is generally a jury question when facts are in dispute; and “even where facts are undisputed or admitted but where a difference of opinion as to the inferences that may legitimately be drawn from them exists, the question ought to be submitted to the jury ... it is primarily for the jury to draw the inference.” (Cloudman v. Beffa, 7 Ill App2d 276, 129 NE2d 286.)

In considering whether to take the decision from the jury by a directed verdict in favor of the defendant or by a judgment notwithstanding the verdict, the court must view the evidence in its most favorable aspect to the plaintiff together with all reasonable inferences therefrom. (Lindroth v. Walgreen Co., et al., 407 Ill 121, 94 NE2d 847.)

The evidence, when viewed most favorably to the plaintiff, indicates that he saw the truck begin to accelerate fifty to seventy-five feet away but he was also engaged in watching for other traffic. From the evidence it cannot be said as a matter of law that it was unreasonable for the plaintiff to expect the driver to slow down before he crossed the wire as he had seen another driver do; and when the wire began to vibrate from the crossing truck, the evidence indicates that the plaintiff tried to get off the wire.

The facts do not show contributory negligence as a matter of law when viewed most favorably to the plaintiff. It could be reasonably inferred that the plaintiff, when he discovered the danger, did all he could to avoid harm. Prior to discovering the risk, he was obeying his employer’s orders in standing on the wire and watching for traffic from other directions. If it is reasonable to infer that the plaintiff did not realize his danger until the truck failed to slow and the wire began to vibrate, then the plaintiff cannot be contributorily negligent as a matter of law for failing to take precautions commensurate with the known risk.

The appellant’s final contention is “the verdict in the amount of $7,500.00 was excessive and the defendant is entitled to a new trial.”

The appellant’s abstract of record indicates the plaintiff suffered a fractured sacrum and lost approximately $900 in wages due to the accident and incurred $90 medical expenses. The trial record indicates that the plaintiff’s wage loss was $1,950, that the plaintiff wore a back brace for the better part of two years and that the plaintiff has suffered and is suffering recurrent pains in his back. The verdict was consistent with the damages the evidence shows the plaintiff to have suffered.

For the foregoing reasons the judgment of the trial court is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: CORYN, P. J.

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Edward Henry, Jr., Appellant.
    Gen. No. 65-84.
    Third District.
    March 1, 1966.

      Gary T. Rafool, of Peoria, for appellant.
    George Kennedy, State’s Attorney, of Peoria, for appellee.
   CORYN, P. J.

This is an appeal by the defendant, Edward Henry, Jr., from the judgment of the Circuit Court of Peoria County entered on a verdict finding him guilty of burglary, and sentencing him to the penitentiary for a term of from 8 to 10 years. The defendant was indicted by the grand jury on July 26, 1962, and the next day was arraigned. At that time he was served with a copy of his purported confession and a list of witnesses, and the trial court appointed counsel to represent him. On September 11, 1962, defendant entered a plea of “not guilty,” and on September 25, 1962, a jury was impaneled to try the case. On September 29, 1962, the jury reported to the court that it was unable to reach a verdict. On November 5, 1962, a second jury was impaneled, which, after a trial of the cause, returned its verdict on November 9, 1962.

The indictment alleges that the defendant “entered into the building owned by Joanna C. Dunne, [a/k/a Mrs. Emmett Dunne] . . . and Leslie Confort; said building [being] located at 1031 West Second Street, Peoria, lilinois, . . . [and being] . . . leased and occupied by Harry H. Smith and Walter A. Reeves, Jr., copartners, doing business under the name and style of the Donald Duck Tavern.” Mrs. Dunne testified that she owned the property at 1031 West Second Street, Peoria, Illinois, on June 28, 1962, the date of the alleged burglary, and was on said date leasing to Harry H. Smith and Walter A. Reeves, Jr., who thereupon operated the Donald Duck Tavern. Mrs. Dunne further testified that Leslie Confort previously owned an interest in said property, but that she bought his interest in December of 1961.

The defendant argues that because Confort’s name was listed on the indictment as a co-owner, when in fact he had no interest in the premises on the date of the burglary, the indictment was materially defective. We find no merit in this argument. The indictment must allege, and the proof establish, that the ownership or right of possession of the building burglarized, was in a person or persons other than the accused. The purpose for this requirement is to enable the accused to prepare his defense to the charge of burglary, and to plead any former acquittal or convictions in bar of a subsequent prosecution for the same offense. People v. Zangain, 301 Ill 299, 133 NE 783; People v. Johnson, 20 Ill2d 336, 169 NE2d 776. “The premises involved are effectively identified, and the rights of the accused are fully protected by an indictment that charges the unlawful entry of a building in the possession of another.” People v. Stewart, 23 Ill2d 161, at 168, 177 NE2d 237. In the instant case, the indictment alleged, and the proof established, that the property allegedly burglarized by the defendant was being leased and in the possession of Harry H. Smith and Walter A. Reeves, Jr., d/b/a Donald Duck Tavern, and was owned by Joanna C. Dunne. The fact that Leslie Confort, a former co-owner of the premises, was named in the indictment as an owner, was mere surplusage, as the indictment clearly established the rights of ownership and possession in persons other than the defendant.

The defendant next contends that the conviction must be reversed, as it violated the so-called “four month rule.” At ch 38, § 748, Ill Rev Stats (1961), it is stated as follows:

“Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day, in which case the court may continue the cause for not more than sixty (60) days.”

Here the defendant was originally arrested on June 28, 1962, and was first tried by a court having jurisdiction of the offense on September 25, 1962, well within the four-month rule. The first jury was discharged by the court on September 27, 1962, when it was unable to reach a verdict, and the second jury was impaneled on November 5, 1962, and returned a verdict on November 9, 1962. The second trial commenced four months and eight days from the date the defendant was originally arrested and imprisoned, but only thirty-nine days from the date the first jury was discharged. In People v. Jonas, 234 Ill 56, 84 NE 685, it was held that the four-month period begins to run anew from the date of the disagreement of a jury. The ruling of the Jonas case appears to have been modified somewhat by the language of People v. Gilbert, 24 Ill 2d 201, 181 NE2d 167, where the court indicated that the four-month rule did not necessarily begin to run anew in every instance of a mistrial, but that consideration should be given to the defendant’s constitutional right to a speedy trial, especially where the delay is not attributable to the defendant. In the instant case we are satisfied that defendant’s constitutional right to a speedy trial, defined by the requirements of the “four month rule,” were satisfied by the commencement of the second trial thirty-nine days from the date the first jury failed to agree, and four months and eight days from the date the defendant was originally incarcerated.

Defendant further contends that it was error for the court, over objection, to admit evidence of his prior conviction in Marshall County, Illinois, for burglary. At ch 38, § 734, Ill Rev Stats (1961), which was in effect at the time of this trial, it was provided that evidence of conviction of a crime may be shown for the purpose of affecting a witness’s credibility. In the instant case, the defendant testified on his own behalf, and the prosecution, as part of its rebuttal evidence, offered the record of his prior conviction for burglary. Subsequently, the jury was instructed, by People’s Instruction No. 11, and Defendant’s Instruction No. 7, that no person should be disqualified as a witness in a criminal case by reason of his having been convicted of a crime, but that such conviction could be considered by the jury in determining the credibility and weight to be given to that witness’s testimony. We find no error in this procedure. People v. Crump, 12 Ill2d 402, 147 NE2d 76; People v. Parks, 321 Ill 143, 151 NE 563; People v. Bartkus, 7 Ill2d 138, 130 NE2d 187.

Defendant next argues that the jury verdict was contrary to the manifest weight of the evidence. It is our opinion that the record discloses sufficient evidence to support the jury’s verdict. We do not believe it would serve any useful purpose to detail the evidence here. It is sufficient to state that the testimony of the convicted accomplice, Daniel Childs, implicating the defendant, was corroborated by the testimony of several police officers and by defendant’s written confession. We are also of the opinion that although certain remarks of the prosecutor in his final argument were improper, as contended, they do not constitute reversible error, where in each instance defendant’s objection to the prosecutor’s argument was sustained by the trial court, and the jury was properly instructed to disregard the remarks.

We find no reversible error in the record, and therefore the judgment of conviction is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


text:
    Ruby E. Nolin, Plaintiff-Appellant, v. Leffler R. Nolin, Executor of the Estate of Huldah E. Nolin, Deceased, Defendant, and Leffler R. Nolin, Defendant-Appellee.
    Gen. No. 65-74.
    Third District.
    March 2, 1966.
    Rehearing denied March 31, 1966.

      Fleming & McGrew, of Watseka, for appellant.
    Bell, Smith & Danneyl, of Watseka, for appellee.
   CORYN, P. J.

Shortly after the death of Huldah E. Nolin, her son, Leffler R. Nolin, defendant herein, filed a petition with the County Court of Iroquois County requesting that his mother’s will, dated August 5, 1959, be admitted to probate. This petition was allowed on September 3, 1963, and defendant thereupon accepted his testamentary nomination as executor and was so appointed. On April 10, 1964, plaintiff, Ruby E. Nolin, filed her complaint herein in two counts, naming her brother, Leffler R. Nolin, as defendant in both his individual capacity and as executor of the estate of Huldah E. Nolin, deceased. In Count I she complains that certain recitations of her mother’s will are defamatory, and that defendant’s publication of the offensive language of the will, in the probate proceedings, constitutes a slander of title to certain of plaintiff’s real estate for which defendant, as executor of the estate of the person who uttered the words, and individually, as the person who voluntarily published them, by petitioning the court for probate of said will, is liable, to the extent of $80,000. In Count II, plaintiff claims that the publication of the offensive words of the will is libelous per se, and seeks recovery against defendant, in both capacities, to the extent of one million dollars for injury to her reputation and character.

The testamentary recitation complained of is as follows:

“WHEREAS, on or about June 2, 1939, I had certain Deeds of Convenience prepared for me which said Deeds were to be held and retained by me for the purpose of making certain contemplated conveyances in the light of circumstances then existing and contingent upon events which did not occur, and WHEREAS, I acknowledged the said Deeds on the same date, and placed the same in an envelope in my Safety Deposit Box in the Citizens State Bank of Milford, Illinois, to be there kept under my own custody and control without delivery, and, WHEREAS, RUBY E. NOLIN, my unmarried daughter, with whom I shared said Safety Deposit Box, did thereafter in January of 1954, obtain admittance to said box without my knowledge, and by certain representations then made to the custodian of said box gained entry thereto, and withdrew from my said box the said Deeds hereinbefore referred to, which said Deeds she did cause to be recorded in the Office of the Recorder óf Iroquois County, Illinois, on January 20, 1954, as Documents #404356 and #404357, and she did further then and there direct and obtain from the said Recorder an endorsement on said Deeds ‘Do Not Publish,’ and caused the said Deeds to be recorded in Book 672 at Pages 34 and 36 in the said Recorder’s Office without my knowledge or consent, and without the said Deeds ever having been delivered in fact as required by law, and WHEREAS, I did thereafter learn during the month of May, 1959, of the recording of said Deeds, and did immediately demand and request that the said RUBY E. NOLIN, my said daughter, reconvey to me the premises therein described, with which said request she has refused to comply, and, WHEREAS, I am of advanced years, and physically unable to undertake the strenuous course of litigation against the said RUBY E. NOLIN to obtain reconveyance of said property, I, therefore, do direct and command my Executor hereinafter named to institute legal proceedings in the name of my Estate against the said RUBY E. NOLIN to cause and accomplish the reconveyance of said property and obtain the setting aside of said Deeds by due legal proceedings and proper Decree of a Court of competent jurisdiction so that the said premises may be an asset of my Estate and pass according to the terms of my Last Will and Testament following immediately hereafter, vis.

On August 20, 1965, the Circuit Court of Iroquois County, on motion, determined that the facts alleged in the complaint are legally insufficient to sustain a cause against defendant in his individual capacity, and in that capacity, dismissed defendant with judgment for his costs. A motion to dismiss defendant in his representative capacity was denied. Upon a further finding that no just reason exists for delaying appeal, this proceeding for review was perfected by plaintiff.

The sole issue we are called upon to decide is whether a cause of action exists, either for a libel to the character and reputation of a person, or for slander of title to real estate against one who presents for probate a will containing defamatory words, and, if so, whether the complaint here alleges sufficient facts to state such a cause. We are not called upon to consider, and we do not decide, by this appeal, whether a cause of action, under the same facts, exists against the estate of a decedent who makes and executes such a will, nor do we decide whether the recitations complained of in decedent’s will are libelous per se.

The parties have agreed that this is a case of first impression in Illinois, and that precedent from other jurisdictions is minimal. Our own research has failed to uncover a reported case in which an executor was held liable in his individual capacity for having sought the probate of a will containing defamatory recitations, and none are cited by plaintiff. Indeed, what authority there is on the subject sustains the contrary thesis, and plaintiff acknowledges this fact in her brief. In support of her theory of liability, however, she argues that art II, § 19 of the Constitution of Illinois (1870) guarantees to everyone a remedy at law for injury to his reputation and property, and that recovery here ought, therefore, be allowed. The designated portion of the Constitution, upon which she relies, reads as follows:

“Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay.”

Most of the cases that have involved issues similar to those presented by this appeal are cited in an annotation at 87 ALR 234, and its supplements. The author of the annotation concludes that an executor incurs no personal liability for libel in publishing a defamatory will merely by petitioning for its probate. At 33 Am Jur, Libel & Slander, § 101, the same conclusion is advanced. See also 53 CJS, Libel & Slander, § 82, at 135; 33 Chicago-Kent L Rev 170 (1955). The rationale advanced by the decisions reported vary considerably. Many of the cases relied upon in the encylopedias and annotations are the reported decisions of judges having original jurisdiction over the probate of wills in the state of New York. In re Payne’s Estate, 160 Misc 224, 290 NYS 407, it was said that an executor who deletes the defamatory words from a will before presenting it for probate would incur no personal liability for the libel. It has been suggested that although the surrogate did not hold in that case that the executor would incur personal liability for failure to delete the defamatory words, it is implied that such a duty exists where the offensive words are not dis-positive ones. The difficulty with the Payne case is, however, that it did not directly involve a libelous will, but offensive words in a book composed by the testator, which the will directed the executor to publish with decedent’s funds. In the case of In the Matter of Meyer’s Will, 72 Misc 566, 131 NYS 27, the surrogate refused to expunge offensive words from a will presented for probate on the grounds that the court probably lacked such power, and that the alteration of a will by the deletion of words is repugnant to the purposes and nature of proceedings in probate. In In re Croker’s Will, 105 NYS2d 190, the court expressed dissatisfaction with the suggestion that offensive words thought nondispositive could be expunged before or at probate. Wills have other legitimate purposes besides the disposition of property, and what is nondispositive may nonetheless be an operative part of a will. In Brown v. Mack, 185 Misc 368, 56 NYS2d 910, an executor, in his individual capacity, was held absolutely privileged in presenting a libelous will for probate. Considering the possibility of injury from the publication by probate of an offensive will in a case where it was known that no assets exist and no other lawful purposes could be effected, it is argued here that there is basis for debate as to whether any privilege extended should be absolute, or one qualified by the condition of demonstrating good motives. The privileges and immunities attending the publication of defamatory matter in judicial proceedings is discussed in Prosser, On Torts, at pages 606 et seq. (2nd Ed, 1955).

In Harris v. Nashville Trust Co., 128 Tenn 573, 162 SW 584, the subject presented for ultimate determination here was considered by a court of review. The rationale adapted there was that since the suppression of a will is felonious, and the nominated executor is under a legal duty to present it for probate, he could incur no personal liability in doing what the law requires of him. Courts of review in other states have applied the maxim, “actio personalis moritur cum persona” to arrive at a conclusion that no cause whatever survives the death of the testate tort-feasor, Carver v. Morrow, 213 SC 199, 48 SE2d 814. In Citizens & Southern Nat. Bank v. Hendricks, 176 Ga 692, 168 SE 313, it was held that the executor was not liable because he is an officer of the court in probating a will and not the agent of decedent-principal for the completion of wrongs not consummated during the testator’s lifetime. This decision has been criticized on the grounds that the executor’s appointment is subsequent to his publication of the will by petitioning for probate. In Harris v. Nashville Trust Co., supra, and Kleinschmidt v. Matthieu, 266 P2d 686 (Sup Ct, Oregon, 1954) the nonsurvivorship maxim itself, insofar as it was used as a shield against the liability of the estate, was rejected on the grounds that the tort did not occur until publication of the will after the death of the testator, and that there being, therefore, no cause during testator’s lifetime, the issue of its survival is moot. In the latter case, the estate alone was held liable, since testator’s publication at the time of making the will preceded a judicial proceeding and was not privileged.

The language of the Illinois Probate Act makes no exception to the requirement that persons having possession of a decedent’s will deliver it to the court, without alteration, within thirty days from the death of the testator, and that the executor, nominated by the will, within thirty days from acquiring knowledge of his nomination, either declare his refusal to act or institute proceedings for probate. (C 3, §§ 60-62, Ill Rev Stats, (1965).) A suppression of a will, or its parts, or a wilful alteration of its terms, is felonious. (C 3, § 61, Ill Rev Stats.) The purpose of this statute is to insure that a testator’s will be presented to the court in an unaltered condition within a short time after his death. This purpose, we believe, might be defeated if we compelled a person named as an executor to determine, prior to the presentation of the will to the court, and without assistance from the court, whether or not the will contains defamatory matter. It being felonious to suppress or alter a will, its presentment, by defendant, for probate, in undeleted form would constitute a publication pertinent to a judicial proceeding. The content and validity of the will was the very purpose and subject of inquiry. Illinois law accepts the principle that defamatory words are privileged where their utterance or publication is pertinent to a judicial proceeding where made. Ginsburg v. Black, 192 F2d 823, cert den, 343 US 934, rehearing den, 343 US 958; Talley v. Alton Box Board Co., 37 Ill App2d 137, 185 NE2d 349; Sarelas v. Makin, 32 Ill App2d 339, 177 NE2d 867; Harrell v. Summers, 32 Ill App2d 358, 178 NE2d 133; Guttman v. Guttman, 21 Ill App2d 512, 158 NE2d 446. The complaint here, which seeks recovery of defendant in his individual capacity, merely for publication of an alleged libelous will by its presentment for probate, is legally insufficient, in our opinion, and does not state a good cause of action.

Article II, § 19 of the Constitution of Illinois (1870) has not been interpreted to abolish immunities extended for the protection of a recognized public interest. Rather, that language of our Constitution has been construed to mean only that remedies known to the common law, though subject to reasonable legislative change for the public welfare, are preserved and may not be destroyed. Heckendorn v. First Nat. Bank of Ottawa, 19 Ill2d 190, 166 NE2d 571; Clarke v. Storchak, 384 Ill 564, 52 NE2d 229.

We hold that no cause of action exists against an executor, individually, merely for presenting a defamatory will for probate. Accordingly, we affirm the order of the Circuit Court of Iroquois County, dated August 20, 1965, which dismissed the cause of action against the defendant, Leffler R. Nolin, and entered judgment in his favor for costs against the plaintiff, Ruby E. Nolin.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: ALLOY, J.

text:
    Thomas J. Mills, et al., Plaintiffs-Appellants, v. Village of Milan, a Municipal Corporation, and National Disposal Service of Illinois, Inc., Defendants-Appellees.
    Gen. No. 65-60.
    Third District.
    March 8, 1966.

      Stewart R. Winstein, of Rock Island, for appellants.
    Stuart R. Lefstein and Robert J. Noe, both of Rock Island, for appellees.
   ALLOY, J.

This cause is before us on an appeal from an order of the trial court granting the motions to dismiss made by the Village of Milan and National Disposal Service of Illinois, Inc., defendants, pursuant to sections 48 and 45 of the Civil Practice Act (Ill Rev Stats 1963, c 110, §§48 and 45). The trial court certified that no reason exists for delay in appealing this cause. We are solely eoncerned with the pleadings involved since the action was disposed of on the pleadings alone.

Plaintiffs Thomas J. Mills, W. K. Rollf, Logan Mills, Tommy Philliber and Jack Blair filed a complaint for injunction and other relief alleging that the dumping of garbage and other refuse would be a statutory nuisance within the provisions of chapter 100%, section 27 of Illinois Revised Statutes and also a common-law nuisance and prayed that defendants be enjoined and restrained from dumping garbage or other offensive matter within the corporate limits of the defendant Village of Milan. It was further requested that the court declare the dumping to constitute a nuisance and to abate it. In conjunction with the motions to dismiss which were filed by the Village of Milan and the National Disposal Service of Illinois, there was filed the affidavit of the attorney for the Village of Milan to the effect that a contract for joint disposal of garbage, refuse and ashes had been entered into on May 18, 1965, and a copy of said contract is attached to the motions. There was also attached to the motions, copies of the ordinances of the City of Moline, Illinois, and the Village of Milan.

On appeal in this court, plaintiffs contend that the trial court erred in granting the motions to dismiss and in dismissing the complaint, on the basis that the documents attached to and supporting the motions do not show an agreement for disposal of garbage, refuse or ashes or other offensive substance between the Village of Milan and the City of Moline within the provisions of chapter 100%, section 27, or chapter 24, section 11-19-1 (Ill Rev Stats 1963) and following, and that the complaint sets forth facts sufficient to allege a nuisance. Under the terms of section 27 (Ill Rev Stats 1963, c 100½) referred to, which prohibits any person from dumping garbage within the limits of a village such as Milan, the section expressly provides for two exceptions: (a) a municipality within the corporate limits in which the garbage or other offensive substance shall have originated may dump the garbage within the municipal limits, and (b) the municipality which has contracted with another municipality within which the garbage has originated for the joint collection and disposal of garbage may dispose of the garbage within the village. It is further noted that under 1963 Illinois Revised Statutes, chapter 24, section 11-19-1, relating to corporate powers and functions of municipalities, it is provided that any city may make contracts with any other city relating either to the collection or final disposition of garbage, refuse and ashes. Under section 11-19-6 of the same chapter, it is provided that any municipality may exercise the powers, individually or jointly, and cooperatively with any municipality, if not in conflict with sections 11-19-7 through 11-19-10. Under section 11-19-7 (f), it is further provided that a contract between municipalities may contain such provisions as shall be deemed necessary to effectuate a workable system of collection and disposal or “solely of collection” or “solely of disposal” of garbage, refuse and ashes.

It is apparent from a reading of the sections referred to that they authorize joint action for collection or for disposal or for both as to garbage. Obviously, the Village of Milan can clearly and lawfully dump the garbage collected within its corporate limits. The contract entered into between Milan and Moline is also one which is clearly within the provisions of the statute (Ill Rev Stats 1963, c 100½, § 27). Such statute provides expressly that garbage and other refuse as to which a municipality has contracted with another municipality “within which garbage has originated for the joint collection and disposal of garbage” is excepted from the provisions of the act. Plaintiffs on appeal in this court contend that the contract between Milan and Moline (since separate contracts in each case with the municipality under consideration do provide for collection of the Milan garbage, etc. and dumping in the land-fill location and collection of the Moline garbage, etc. and dumping in the Milan land-fill location), does not fall within the second statutory exception referred to because the contracts do not call for joint collection and disposal of garbage by the two municipalities.

Prior to 1957, section 27 of chapter 100% herein referred to, did not contain the exceptions referred to and there was no provision in the Cities and Villages Act expressly empowering municipalities to enter into joint contracts with each other for the joint collection and disposal of garbage. By amendment in 1957 of the Cities and Villages Act, such joint contracts were permitted (Ill Rev Stats 1963, c 24, § 40-6). The section now under consideration was also amended by including therein language containing the two exceptions, obviously for the express purpose of exempting therefrom municipalities which entered into joint contracts for disposal of garbage. Section 27 also must be read in conjunction with chapter 24, section 11-19-1 and section 11-19-7 hereinabove referred to which permit the municipality to make contracts with any other municipality relating to the collection and final disposition or relating solely to either collection or final disposition of garbage, refuse and ashes. Section 11-19-7, in outlining the contents of the contract to be used, provides that the contract should specify whether the municipalities shall participate in a joint garbage department or whether they shall enter into a single contract or contracts with a private party or parties with reference to garbage collection and disposal. It is apparent from such statutes, that contracts with private parties are permissible where these contracts provide solely for disposal of garbage.

All of the elements referred to in the section cited are included in the contract between the Village of Milan and Moline. There was no mandatory provision in the statute that the municipalities establish a joint garbage department or that they agree to assume any financial or other responsibilities for the garbage of the other municipality. The contracts under consideration provide for the joint use of the land-fill disposal site in question by the parties to the agreements. It designates National Disposal Service of Illinois, Inc. to operate the site. The contracts specifically provide that all operations thereunder shall be carried on in a healthful and sanitary manner in compliance with all applicable laws and ordinances. The ordinances of Milan and Moline did in fact appoint a three-member committee which is designated to meet with its counterpart in each of the municipalities and make recommendations for the improvement of the garbage disposal system. While the contracts do not specifically provide that they may be opened to admit additional municipalities or counties, it is noted that such alternatives are merely permissive and not required under the terms of section 11-19-7 referred to, although, as a matter of fact, the contract with Milan does provide that it may be modified from time to time as conditions warrant.

The words used in section 27 of the statute (Ill Rev Stats 1963, c 100½, § 27) “joint collection and disposal of garbage” in view of all the related sections referred to, obviously should be construed to mean “joint collection or disposal of garbage.” The words “and” and “or” are used interchangeably in statutes where it is necessary to give effect to legislative intent (John P. Moriarty, Inc. v. Murphy, 387 Ill 119, 55 NE2d 281) and it is consistent to look at prior and contemporaneous statutes relating to the same subject in determining the meaning of the statutory provision (Ashton v. Cook County, 384 Ill 287, 51 NE2d 161). It is obvious from an analysis of this related statute that the dumping of garbage within the corporate limits of the Village of Milan which originates in the Village of Milan and the City of Moline is not a violation of the statute referred to, and is not a nuisance but is specifically authorized by the provisions of the statutes referred to.

The operation of a public dump of the type with which we are concerned is obviously not a nuisance per se and the allegations of plaintiffs’ complaint did not establish that there was a nuisance in fact. The collection and disposal of garbage are acts within the police power of the municipality and have a direct relationship to the promotion and safeguarding of public health and welfare (39 American Jurisprudence, Nuisances, section 11, page 290; Consumers Co. v. City of Chicago, 313 Ill 408, 145 NE 114; Canal Melting Co. v. Columbia Park Co., 99 Ill App 215). The record discloses no specific allegations of fact which would justify the granting of injunctive relief to plaintiff. There is merely an allegation that there will be a proposed dumping which would create a nuisance and that odors would emanate from the dump. Injunctions cannot be based upon speculation or conjecture where the activity to be undertaken is presumptively valid and legal (Nichols v. City of Rock Island, 3 Ill2d 531, 538-539, 121 NE2d 799). As the Illinois Supreme Court has stated in City of Kankakee v. New York Cent. R. Co., 387 Ill 109, 117, 55 NE2d 87:

“It is only in extreme cases, unless the rights of the parties as to the facts of the nuisance have been settled, in action at common law, that a court of equity will take jurisdiction to abate a nuisance by injunction.”

No such facts were alleged in the present case. It is apparent that the court properly dismissed the complaint on the motions filed herein. The judgment of the Circuit Court of Rock Island County is, therefore, affirmed.

Affirmed.

CORYN and STOUDER, JJ., concur.


text:
    Harold Wright, Plaintiff-Appellant, v. Massey-Harris, Incorporated, and Massey-Ferguson, Incorporated, Defendants-Appellees.
    Gen. No. 65-55.
    Fifth District.
    March 10, 1966.
    Hanagan &-Dousman, of Mt. Vernon, for appellant.
    John E. Jacobsen, Craig & Craig, of Mt. Vernon, for appellees.
   MORAN, J.

The plaintiff, Harold Wright, a farm employee, brought an action against the defendant, Massey-Ferguson, Incorporated, to recover for personal injuries sustained while operating a self-propelled corn picker. The defendant’s motion to dismiss the complaint was allowed. The plaintiff elected to abide by his amended complaint and the court entered a final judgment of dismissal. The plaintiff appeals from that judgment:

The complaint alleges:
“(4) That at the time of the occurrence hereinafter complained of, and immediately prior thereto, plaintiff was using and operating a 1958 Massey-Harris self-propelled six cylinder cornpicker in the usual and customary way in a certain corn field, in Wabash County, Illinois, which his employer, Bernard Walters, farmed, and plaintiff was exercising ordinary care and caution for his own safety, and was not guilty of any negligent act or omission directly and proximately resulting in the injurious occurrence herein mentioned.
“(5) That in the year 1953, Massey-Harris, Incorporated, now known as Massey-Ferguson, Incorporated, through its dealer, John Heiser Implement Company of Princeton, Indiana, sold said cornpicker being a 1953 Model Massey-Harris self-propelled six cylinder cornpicker, to Bernard Walters, when they knew that said cornpicker would be used in the State of Illinois by the plaintiff or other employees of Bernard Walters.
“ (6) That the defendant, Massey-Harris, Incorporated, and Massey-Ferguson, Incorporated, by its agents and employees prior to such sale, had negligently designed and manufactured said self-propelled cornpicker in such manner that it was dangerously defective and faulty, and unfit for the purpose for which it was intended, and that the aforesaid machinery did not have thereto attached a reasonably safe shield over the area where corn ears would jam into the chain mechanism, nor over the shucking rollers under the area where jammed corn ears must be manually extracted, and that defendant, Massey-Harris, Incorporated and Massey-Ferguson, Incorporated, by its agents and employees and dealers, then and there negligently delivered said defective, faulty, unsafe and unfit 1953 self-propelled cornpicker which was then sold to Bernard Walters for use by his employees.
“(7) That defendant, Massey-Harris, Incorporated, and Massey-Ferguson, Incorporated, by its agents, employees and dealers, then and there knew or in the exercise of reasonable care should have known that said machine, with the absence of said shield or guard over the shucking rollers above which jammed corn ears would be manually extracted, was thereby defective, faulty, unfit and unsafe as aforesaid, and that plaintiff or any other person using said machine might or would be seriously injured thereby, but said defect and danger was not appreciated nor evident upon an inspection of said chain and shucking roller and the danger was not appreciated by the plaintiff in his use of the defective machinery.
“ (8) That on November 8,1962, at approximately 11:00 a. m., and immediately prior thereto, plaintiff was using and operating said 1953 Massey-Harris self-propelled cornpicker in a certain corn field while in the employment of Bernard Walters, and as a direct and proximate result of the aforesaid negligent design, manufacture, sale and delivery of said corn-picker, plaintiff’s right hand and glove, while cleaning out a jammed ear of corn was caught in the shucking rollers and was drawn into and through said shucking rollers past his right wrist, thereby greatly injuring plaintiff as herein alleged.”

Defendant claims that the foregoing complaint does not state a cause of action because (1) there are no facts alleged sufficient to show that the machine in question was inherently dangerous when put to the use for which it was intended, and (2) the complaint fails to allege facts sufficient to demonstrate that there was any hidden or latent defect in them, but on the contrary, the complaint shows that the danger would be obvious to anyone placing his hands in the corn husking rollers while the machine was in operation and the complaint therefore shows on its face that there is no liability to the plaintiff for the occurrence alleged.

While this cause was pending in this court, the Supreme Court of Illinois rendered a landmark decision in the case of Suvada v. White Motor Co., et al., 32 Ill2d 612, 210 NE2d 182, in which it not only shattered the privity defense in Illinois in actions against manufacturers, sellers, contractors, those who hold themselves out to be manufacturers, assemblers of parts, suppliers and manufacturers of component parts, but also held these same parties to strict privity-free liability for any injury or damage caused by any unreasonably dangerous products which one or all of them might place into the stream of commerce.

The Court based its holding solely on the same public policy which had heretofore motivated the Illinois Courts to impose strict liability on the sellers and manufacturers of food, saying at page 619:

“. . . Without extended discussion, it seems obvious that public interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user, as they are in food cases.”

The Supreme Court traced the history of products liability law in Illinois and the various extensions of that law leading up to its decision. It discussed Rotche v. Buick Motor Co., 358 Ill 507, 193 NE 529, and MacPherson v. Buick Motor Co., 217 NY 382, 111 NE 1050, which had adopted the concept “that any article negligently manufactured which is reasonably certain to place life and limb in peril is a thing of danger,” and said also at page 616, 617:

“. . . Implicit in Lindroth v. Walgreen Co., 407 Ill 121, was the view that the general rule, rather than the exception to a so-called ‘general rule,’ is that a manufacturer may be liable for injuries to a person not in privity with him and that such liability is governed by the same principles governing any action for negligence.”

It recognized that public policy was the primary factor for imposing strict liability on the seller and manufacturer of food in favor of the injured consumer, and that implicit in the reasoning of the cases imposing strict liability is that “liability is imposed by law and the refusal to permit the manufacturer to define the scope of its own responsibilities for defective products.”

Specifically, the Suvada case held:

(1) That prior to Suvada, privity was an unessential ingredient to liability in a negligence action against a manufacturer, but “that such liability is governed by the same principles governing any action for negligence.” In other words, such liability is governed by the “foreseeability test” as in any other negligence action without regard to the nature of the product or whether the defendant knew of its dangerous propensities or not.

(2) That lack of privity is no longer a defense in a tort action against the manufacturer, seller, contractor, supplier, one who holds himself out to be a manufacturer, the assembler of parts and manufacturer of component parts.

(3) That henceforth strict tort liability is imposed against the above parties in cases involving products where the defective condition makes them unreasonably dangerous to the user.

(4) The liability of the above named parties is imposed by operation of law as a matter of public policy for the protection of the public for the following reasons:

(a) The public interest in human life and health demands all the protection the law can give against the sale of unreasonably dangerous products;
(b) The manufacturer solicits and invites the user of his product by advertising or otherwise representing to the public that it is safe for use. Having thus induced the use of the product, the law will impose liability for the damage it causes;
(c) The losses caused by unreasonably dangerous products should be borne by those who have created the risk and reaped the profit by placing these products in the stream of commerce.

(5) That Henningsen v. Bloomfield Motors, Inc., 32 NJ 358, 161 A2d 69; Greenman v. Yuba Power Products, Inc., 59 Cal2d 57, 377 P2d 897, and Goldberg v. Kollsman Instrument Corp., 12 NY2d 432, 191 NE2d 81, represent sound judicial reasoning in extending the concept of strict liability to the manufacturer of products whose defective condition makes them unreasonably dangerous to the user or consumer; that this liability is imposed by law and “the refusal to permit the manufacturer to define the scope of its own liability for defective products.”

(6) That the views expressed in Suvada by the cases cited therein and also by Professor Noel, Professor James and Dean Prosser in various articles they have written on the subject of strict liability coincide with the language of Sec 402A, Restatement of the Law, Second, Torts, which is as follows:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to reach the user or consumer in the condition in which it is sold.
“(2) The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

(7) “The plaintiff must prove that his injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.”

The Goldberg case, supra, held that an airplane manufacturer’s implied warranty of fitness of airplane for contemplated use ran in favor of airline passenger riding in such plane despite lack of privity of contract, saying at page 83 of 191 NE2d:

“In MacPherson’s day enforcement required a suit in negligence. Today, we know from Greenberg v. Lorenz; Randy Knitwear, Inc. v. American Cyanamid Co. (supra) and many another decision in this and other States (see, for instance, Henningsen v. Bloomfield Motors, Inc., 32 NJ 358, 161 A2d 69, 75 ALR2d 1, and Thomas v. Leary, 15 AD2d 438, 225 NYS2d 137) that, at least where an article is of such a character that when used for the purpose for which it is made it is likely to be a source of danger to several or many people if not properly designed and fashioned, the manufacturer as well as the vendor is liable, for breach of law-implied warranties, to the persons whose use is contemplated.”

The rationale underlying the cases cited and law scholars quoted by the Supreme Court in Suvada is succinctly stated by Prosser on Torts, Third Edition, Chapter 14, at page 509:

“. . . The problem is dealt with as one of allocating a more or less inevitable loss to be charged against a complex and dangerous civilization, and liability is placed upon the party best able to shoulder it. The defendant is held liable merely because, as a matter of social adjustment, the conclusion is that the responsibility should be his.”

We have refrained from extended comment on any cases predating Suvada because we believe that Suvada inaugurates a new era in products liability law in Illinois to such an extent that almost all of the cases preceding this decision are completely outmoded. In our opinion, the language of Suvada is plain and unambiguous. Hereafter, manufacturers of unreasonably dangerous products are strictly liable in tort to the hapless victims of their machines or products.

The wisdom of Suvada is well illustrated by the result reached in the case of Murphy v. Cory Pump & Supply Co., 47 Ill App2d 382, 197 NE2d 849, relied upon by the defendant. Plaintiff, a seven year old child, lost her leg by falling in front of a power mower with a rotary blade which was being operated by her eleven year old sister. The negligence charged was that the mower was inherently dangerous in that the rotary blade would be likely to injure and maim children and that although the rotary blade appeared to be covered, it lacked a safety screen or bar.

The Appellate Court upheld the action of the trial court in allowing a motion for summary judgment in favor of the defendant, giving as its reason that the manufacturer of this mower owed no duty to the plaintiff.

Murphy illustrates a typical result which Suvada seeks to remedy by placing the losses caused by unreasonably dangerous machines or products on those who have created the risk and reaped the profit rather than on an innocent seven-year-old child.

The desirability of reaching an opposite result from that which was reached in Murphy is illustrated by a cogent statement from another field of learning. McClure, Power Lawn Mower Injuries, 25 The American Surgeon, 70 (1959) says:

“It would be wise, ... , to point out that approximately 30 per cent of all power lawn mowers are made by companies whose primary objective is to turn out a lower priced, sometimes poorly constructed, machine for a profit. These companies have given little or no consideration to safety features of their products and some do not bother to caution the buyer of the machine about its inherent dangers. The low cost of these mowers make them attractive to the unsuspecting customer. On the other hand, some of the more reputable manufacturers have attempted to construct mowers which meet rigid safety standards. These also usually attach a card or booklet of instructions regarding proper operation of the machine and emboss special warnings at the danger points on the machine housing.”

In discussing a manufacturer’s duties, Harper and James say in Volume II at page 1540:

“. . . His specific obligations may be roughly divided into two categories: the first concerns the design, plan, structure, and specifications for the product; the second concerns miscarriages in the process of manufacture because of which the product is not what was intended — it is ‘defective’ in some respect. It is not suggested that this dichotomy has any automatic or uniform legal significance. Certainly the two classes merge imperceptibly into one another.”

The present case involves a claimed defect in design rather than a defect in manufacture and we interpret Suvada to mean that the strict liability imposed upon a manufacturer includes injuries which arise from defects in design as well as defects in manufacture.

Whether the design defect in the present case is of a nature upon which liability can be imposed involves the factual question of whether it creates an unreasonably dangerous condition, or, in other words, whether the product in question has lived up to the required standard of safety.

We believe that the complaint in the present case states a good cause of action in negligence and also a good cause of action in strict liability if we treat all of the allegations in excess of those required by Suvada as surplusage.

. For the foregoing reasons the judgment of the trial court in favor of the defendants is reversed. We remand the case for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH, P. J. and EBERSPACHER, J., concur.


author: EBERSPACHER, J.

text:
    John B. Goodman, Plaintiff-Appellee, v. Terminal Railroad Association of St. Louis, a Corporation, Defendant-Appellant.
    Gen. No. 65-23.
    Fifth District.
    March 16, 1966.

      Roberts, Gundlach, Lee & Stubbs, of East St. Louis (Norman J. Gundlach, Edward W. Stubbs, Jr., and George P. Mueller, of counsel), for appellant.
    C. E. Heiligenstein, of Belleville, for appellee.
   EBERSPACHER, J.

Plaintiff Goodman, employed as a carman’s helper or carman by the Terminal Railroad Association of St. Louis, brought suit against his employer in the Circuit Court of St. Clair County for damages under the Federal Employers’ Liability Act. Trial before a jury resulted in a verdict of $125,000 for the plaintiff. Defendant’s post-trial motion was overruled and the judgment allowed to stand conditional upon the plaintiff filing notice of remittitur, in the amount of $45,000 which notice was filed by plaintiff. Defendant has perfected his appeal to this court, urging that the trial court should have granted defendant’s motion for judgment notwithstanding the verdict and in the alternative that the court erred in refusing defendant’s motion for a new trial.

The injury for which the action was brought was sustained on Saturday, February 3rd, 1962, while plaintiff with two other employees, was engaged in removing a car door weighing 480 pounds, pursuant to a call made by Cox, the assistant yardmaster of defendant’s C. D. Yards, in East St. Louis, over the loudspeaker system, to the effect that a car door had fallen off and was leaning against a car on track 22, and was fouling tracks 23 and 24 so that they could not be switched. All three of the tracks had cars on them. Upon the call being made, plaintiff walked to the shanty from which the call came where he and another carman, Dumstorff, were advised where the door was and proceeded to the spot. Upon arrival Dumstorff tipped the door over on a track and plaintiff and Dumstorff chained it to a switch engine which had been sent by the yardmaster and which pulled it to a clearing. While attaching it to the switch engine, a third carman, Berry arrived, and upon the door being either disconnected from the engine or the chain coming untied at the clearing, the three carmen turned it end over end, two times, in order for it to clear the tracks; the first time without incident, and on turning it over the second time, plaintiff testified, he felt a sharp pain on the right side of his back.

Plaintiff continued on the job until February 7 when he consulted a doctor, and was hospitalized for 12 days. On April 5th he was again hospitalized, a laminectomy performed on April 24th, and surgery to evacuate a clot on May 4th. Although he was discharged from the hospital on May 12, he was returned to the hospital subsequently in an attempt to restore motion to his back by stretching it under anesthesia; the attempt was unsuccessful and he walks with a cane and is bent over twenty to thirty degrees, totally disabled from any gainful employment. Plaintiff has suffered no pain since his surgery but requires medication, as well as treatment for a nervous condition, and wears a brace.

The record also shows that he had had a laminectomy in 1957, followed by hospitalization in April 1958 as a result of attempted suicide, was off work from April 5 to June 16, 1958, and was off work, due to what was diagnosed as a nervous breakdown, from September 5 to the middle of November 1958. He had been employed by defendant as a carman or carmen’s helper for 14 years prior to 1962, and with both Berry and Dumstorff, was at the time of this occurrence under the supervision of the car foreman, Samuel Martin, who was not present in the yards on February 2, 1962, but was on call. Martin knew plaintiff had undergone back surgery in 1957, and testified that plaintiff did the work assigned him without any difficulty. The record is silent as to whether Cox knew of plaintiff’s previous disability, or the size or weight of the door.

There is a conflict in the evidence as to the customary manner of removing fallen car doors; there was testimony that machinery was used to remove them as well as testimony that they were frequently removed by human strength; there was also testimony that when removed by human strength as many as eight men were required and testimony by Dumstorff that similar doors had been and could be safely flipped over by three men. The safety rules provided against any employee engaging in unsafe work. There is undisputed evidence that the three men were not directed in the manner in which they were to remove the door, and that no one of them was in charge of the others. Likewise, it is undisputed that there was available in nearby yards, upon a call from a person in authority, a truck which had been used to pick up doors previously; Cox had authority to call for the truck but the truck was not called for. There is also testimony that cars were on the tracks, so that without switching the cars the truck could not have reached the point at which the door had fallen. The record is silent as to whether the truck crew would have responded to a call from any of the three carmen, including plaintiff.

In the complaint plaintiff charged that defendant negligently, (1) failed to provide plaintiff with sufficient, adequate or proper tools or machinery with which to do his work, (2) failed to provide sufficient employee assistance to perform the assigned duty, and (3) assigned work that defendant knew, or by the exercise of reasonable care should have known, would have caused or aggravated plaintiff’s preexisting condition. The answer denied each and every allegation of negligence and in its additional defenses defendant claimed plaintiff’s injuries were caused by his sole negligence, or in the alternative that his negligence contributed to cause his own injuries; the additional defenses were denied by plaintiff.

The principal issue is whether the evidence was sufficient to go to the jury on the question of negligence. Under the Federal Employers’ Liability Act a carrier is liable in damages for injury resulting in whole or in part from the negligence of any of its officers, agents or employees. Assumption of risk is no defense nor does contributory negligence bar a recovery. In determining whether a verdict in plaintiff’s favor is supported on the record, the sole question is whether there is any evidence, considered in the light most favorable to the plaintiff, that defendant was guilty of negligence which contributed in whole or in part to the injury. (Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212; Hall v. Chicago & N. W. Ry. Co., 5 Ill2d 135, 125 NE2d 77.) In Rogers v. Missouri Pac. R. Co., 352 US 500, it was held that under the Federal Employers’ Liability Act, the test of a jury case is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee’s injury. Where as here, a motion is made for judgment notwithstanding the verdict, a question of law is presented as to whether, when all the evidence is considered together with all reasonable inferences therefrom in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove a necessary element of plaintiff’s case. (Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212; Bonnier v. Chicago, B. & Q. Ry. Co., 2 Ill2d 606, 119 NE2d 254.)

As to whether there was any negligence on the part of either defendant or plaintiff in the state of this record, was a question of fact to be resolved by the jury, from the evidence they heard. Considering the evidence as a whole, we think there is sufficient evidence from which the jury could find that the defendant failed to furnish equipment suitable for the job plaintiff was expected to do or that defendant failed to provide plaintiff with sufficient employee assistance and that such failure contributed at least in part to the injury. The fact that there was a truck with a hydraulic lift that was used on many occasions to move these doors indicates that the defendant recognized that special equipment might be needed for the removal of these doors. They may have reasonably concluded, from the lack of proof that the truck would not have been available to the carmen on the carmen’s call, that a carman had no authority to call; and in view of Dumstorff’s testimony that three men could safely flip such a door, that plaintiff by his participation in selection of the manner of moving the door, was not negligent. There is nothing in the record to show that plaintiff or any of the carmen had authority to refuse to do the work, unless it was unsafe, or order mechanical equipment. The defendant is chargeable with the knowledge of its employee Martin, that plaintiff had preexisting spinal surgery and the jury could have reasonably concluded that defendant was negligent in assigning plaintiff to a duty which could aggravate a preexisting physical condition. The fact that contrary inferences would be equally supported by the evidence is not sufficient to show unreasonableness of the verdict. (Finley v. New York Cent. R. Co., supra.)

Defendant urges that in view of the facts that Cox did not tell the three experienced carmen the manner in which the work was to be done, and was not on the scene when it was done, that the three carmen chose the allegedly unsafe method and that if any negligence was involved it was the negligence of plaintiff who should have best known his own physical limitations, and who participated in the decision to use the allegedly unsafe method, without complaint and without requesting more manpower or mechanical equipment. In support of this contention, defendant urges that Wadiak v. Illinois Cent. R. Co., 208 F2d 925, is factually analogous and that its holding to the effect that the law imposes no liability where the plaintiff has a choice of methods and nothing was done by the defendant to cause injury in the method voluntarily chosen by the plaintiff, is applicable herein.

With this contention we do not agree. The Wadiak case was a comparatively simple f actual situation in which the reviewing court found that adequate equipment with which to do the work safely was available. In the present case the ready availability of equipment and additional manpower are controverted. In the Wadiak case the question of the employee’s negligence was approached on the theory that “the weight of the evidence under the Employers’ Liability Act must be more than a scintilla before the case may properly be left to the discretion of the jury.” That such theory in a case under the Federal Employers’ Liability Act is erroneous is suggested by a host of later cases. In Deckert v. Chicago & E. I. R. Co., 4 Ill App2d 483, 124 NE2d 372, even though making a pronouncement wherein it was stated at page 493:

“If a workman is provided with a safe method of doing his work, but selects another more hazardous method, it might be said that he voluntarily assumed the risk, but even in such case it might be better said that the employer has discharged his duty by providing a safe method, and therefore was not negligent,”

the court distinguished the Wadiak case on the facts, in a case in which the risk of employee’s falling was so obvious that it was only reasonable to assume that the employee perceived it, and affirmed recovery. There the court said at page 491,

“Of course, he could (at least in theory) have refused to perform the assigned task. While the defendant does not state it in plain words, this argument necessarily implies that the plaintiff assumed all the risk, when he undertook to do the work without adequate equipment and appliances.”

Under FELA, a plaintiff assumes no risk, and the rule simply stated is that under FELA, if there is even the slightest evidence from which a jury could reasonably infer negligence of the railroad, the case should go to the jury, regardless of the plaintiff’s negligence, if any. The test in determining if an FELA case should go to the jury is not the negligence of the plaintiff, if any, or the extent of plaintiff’s negligence, but only the question as to whether the carrier might reasonably be found to be negligent in any degree. It is only after a jury has reasonably found from the evidence that there was negligence of the carrier which contributed to the accident that any negligence of the plaintiff is to be considered in their deliberations, and then only for the purpose of determining the extent of the damages.

It being a jury’s function to weigh contradictory evidence, judge the credibility of witnesses and draw the ultimate conclusion as to the facts, its conclusion, whether relating to negligence of either a plaintiff or defendant, causation, or any other factual matter should not be set aside merely because different conclusions could be drawn by reasonable men, or because judges feel that other results are more reasonable. (Finley v. New York Cent. R. Co., supra; Dowler v. New York, C. & St. L. R. Co., 5 Ill2d 125, 125 NE2d 41.) Here there was evidence of urgency to get the tracks cleared, only three men had been provided at the scene to do the job they were directed to do, a machine which could have lifted the door was available on call of an authorized person but was not made available at that time and place and one of the men directed to the job had a physical handicap; from this we cannot say that reasonable minds could only come to the conclusion that there was no negligence of the railroad in either not furnishing adequate manpower, not furnishing proper equipment, or furnishing a handicapped man.

We therefore conclude that defendant’s post-trial motion for a judgment notwithstanding the verdict was properly denied below.

In support of the motion for new trial defendant urges that its motion made during the course of plaintiff’s counsel’s opening statement for a mistrial and withdrawal of a juror should have been granted. Plaintiff, while working for the defendant, had suffered several injuries previous to the one upon which he brought this action. One was a back injury, which injury required surgery at the same level as that in the present suit. Plaintiff told the jury that these injuries were sustained while the plaintiff was working for the defendant and that no claims were made against the Terminal Railroad Association of St. Louis, the defendant, for any injuries. While the remarks were improper, this conduct is not coupled with repeated misconduct, or injection of prejudicial remarks or evidence during the course of a four-day trial. Plaintiff’s physical condition and prior medical history was put into evidence without objection and was also the subject of evidence adduced on cross-examination. The fact that no claim for prior injuries had ever been made appears no other place in the record. The jury was properly instructed with reference to being influenced by sympathy, as to what evidence was to be considered, and pointing out that arguments, statements and remarks of counsel were not evidence. We cannot say in this case that the fact that the jury returned a verdict for a greater amount than the trial court let stand indicates that they were attempting to compensate plaintiff for previous injuries sustained, nor that the trial court in ordering a remittitur, did so under the theory that the jury had taken previous unsettled claims into consideration.

Defendant also contends there was error in the giving of certain of plaintiff’s tendered instructions over defendant’s objection. It argues that the issue instruction, tendered by plaintiff and including the three charges of negligence, was not proper because there was no evidence of defendant’s failing to provide adequate equipment, but that the equipment was available and plaintiff chose not to request it, and because Cox had no knowledge of plaintiff’s preexisting physical condition, nor did he know the means the men might select to move the door. Our previous comments on what conclusions a reasonable jury might reach from this evidence, disposes of this objection. Defendant also argues that IPI instruction 160.02, the “rule of liability” instruction, was not properly given since it contained the insertion “the negligence of any of the officers, agents or other employees of the railroad or by reason of any failure or insufficiency to furnish adequate help or equipment to plaintiff, due to the railroad’s negligence” and thereby sought to tell the jury that defendant is liable when there is a failure to furnish adequate help and machinery, and should not be given without modification, when as here, defendant contends the injury was caused solely by plaintiff’s negligence. The notes in IPI on the use of this instruction recommend its modification when the contention is made and supported by evidence that the employee’s negligence is the sole proximate cause of the accident. We cannot say that the evidence supports the proposition that the employee’s negligence, if any, is the sole proximate cause of the accident, or that as a matter of law plaintiff was negligent, and therefore consider the instruction as given, proper.

Defendant also contends that there was error in giving plaintiff’s instruction 17, IPI 34.04, in which was included the following:

“With respect to a loss of future earnings you may consider that some people work all their lives and others do not; that a person’s earnings may remain the same or may increase or decrease in the future.
“According to the evidence in this case, the life expectancy of a person aged 52 years is 20.88 years and the work expectancy of a person aged 52 years is 10.81 years. This figure is not conclusive. It is the average work and life expectancy of persons who have reached the age of 52. It may be considered by you in connection with other evidence relating to the probable work and life expectancy of the plaintiff in this case, including evidence of his occupation, health, habits, and other activities, bearing in mind that some persons work and live longer and some persons less than the average.
“In computing the damages arising in the future because of injuries, because of future medical expenses or because of the loss of future earnings you must not simply multiply the damages by the length of time you have found they will continue or by the number of years you have found that the plaintiff is likely to work or live,”

because the whole medical evidence in this case as it concerned the plaintiff’s work or life expectancy was from plaintiff’s witness, Dr. Fritsch, who stated that plaintiff, due to causes not related to this injury, was prematurely old, and that because of plaintiff’s condition he would not have lived or worked a normal or average expectancy. The court refused defendant’s instruction 6 which substituted for the quoted language of plaintiff’s instruction 17, the following language:

“According to a table of mortality in evidence, the life expectancy of a person aged 52 years is 20.88 years and according to a table of work expectancy, a person aged 52 years would work 10.81 years. You should consider that the plaintiff will live less than a normal expectancy and he would have worked less than a normal expectancy.
“In computing the damages arising in the future because of injuries or because of future medical expenses or because of the loss of future earnings, you must not simply multiply the damages by the length of time you have found that they will continue or by the number of years you have found that the plaintiff is likely to have lived or to have worked,”

and urges that it was the proper statement of the law under the evidence in this case rather than the quoted portion of plaintiff’s 17. The court also refused defendant’s instruction number 5 which it urges was imperative in order for the jury to get a fair and accurate understanding of the elements of damage after plaintiff’s 17 was given. Defendant’s 5 was in the following form:

“In the event that you find the plaintiff is entitled to damages arising in the future as defined in other instructions, you must determine the amount of these damages.
“In determining the amount such damages, you should relate such damages to the evidence that plaintiff will live less than a normal expectancy and he would have worked less than a normal work expectancy.”

Plaintiff’s instruction 17 pointed out that the mortality table evidence was not conclusive and that it might be considered in connection with other evidence relating to the probable life and work expectancy of the plaintiff, bearing in mind that some persons work and live longer and some persons less than the average. It left room for the jury to exercise their right to consider all the evidence in the light of their own observation and experience in the affairs of life, as they were instructed to do by a tendered instruction of defendant. It did not contain the positive language of defendant’s 5 and 6 that plaintiff “will live less than a normal expectancy and he would have worked less than a normal expectancy.” To require a jury to accept and be bound by a doctor’s prediction of expectancy would deprive them of consideration of their own observation and experience with reference to such predictions. We find no reversible error in the instructions as ruled upon, and considering all the instructions as a series, consider that the jury was fairly and clearly informed of their duties as triers of the facts.

Plaintiff urges that there is sufficient evidence of damage to restore the jury’s verdict of $125,000, and that the trial court should not have reduced the damages awarded the 52-year-old permanently crippled and unemployable plaintiff; while defendant urges that the remaining $80,000 award is excessive in view of plaintiff’s negligence and expectancy. Defendant urges that the jury should have found contributory negligence and thus mitigated the damage, and that the jury erroneously ignored evidence of less than average expectancy.

Reviewing the evidence in this case, we cannot assume that this properly instructed jury either found or did not find contributory negligence, nor can we assume that if they did find any contributory negligence, that they ignored that part of IPI instruction (Plaintiff’s 14) which included the following language :

“Contributory negligence on the part of the injured employee shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.”

and the Contributory Negligence Definition instruction, I PI 11.01, was given. Neither can be assume that because the trial court ordered a remittitur that the jury had erroneously ignored evidence of less than average expectancy. They were instructed by Plaintiff’s 17 that the figures shown by the mortality table were not conclusive and might be considered with other evidence relating to the probable work and life expectancy of plaintiff.

Each verdict for a personal injury must be examined in the light of the particular injury involved, with humble deference to the discretion of the jury in making its determination: in a court of review, the discretion of the trial judge, in ruling on the post-trial motion, is entitled to the same deference. Lau v. West Town Bus Co., 16 Ill2d 442, 158 NE2d 63. He had the opportunity to see and hear the witnesses as well as observe the jury throughout the trial, and unless there is a clear abuse of discretion in granting a new trial his judgment should not be disturbed. Here the trial court’s order denying the post-trial motion for a new trial, was entered on the condition of a notice of remittitur; that action was the same as granting the new trial conditioned on plaintiff’s failing to file notice of remittitur. The discretion of the trial judge in granting a new trial on condition, should be entitled to the same respect as when it is exercised in granting a new trial unconditionally. Here the exercise of that discretion was based on questions of evidence and fact rather than law, and we find no clear abuse of that discretion.

The remittitur will stand, and the judgment of the Circuit Court of St. Clair County is affirmed.

Affirmed.

MORAN and GOLDENHERSH, JJ., concur.

       Rogers v. Missouri Pac. R. Company, 352 US 500; New York, New Haven & Hartford R. Co. v. Henagan, 272 Fed2d 153 (faintest scintilla of evidence suggesting negligence); Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212; Lavender v. Kurn, 327 US 645; Busser v. Noble, 22 Ill App2d 433, 161 NE2d 150; Stowers v. Carp, 29 Ill App2d 52, 172 NE2d 370; Dimucci v. Garnello, 43 Ill App2d 426, 193 NE2d 601; Hinrichs v. Gummon, 41 Ill App2d 428, 190 NE2d 610; Hack v. New York, C. & St. L. R. Co., 27 Ill App2d 206, 169 NE2d 372; Gallick v. Baltimore & Ohio R. Co., 372 US 108, 25 NACCA 251.


author: PER CURIAM.

text:
    Ernest H. Stratmeyer, Plaintiff, v. Champion Life Insurance Company, Defendant, v. Charles F. Sanborn, Third Party Defendant.
    Gen. No. 65-7.
    Fifth District.
    March 17, 1966.
    McGrady and Madden, of Gillespie (Denis A. McGrady, of counsel), for appellant; Drach, Terrell & Deffenbaugh, of Springfield, for appellee.
   Opinion

PER CURIAM.

Not to be published in full.


author: GOLDENHERSH, P. J.

text:
    The Department of Public Works and Buildings of the State of Illinois, for and in Behalf of the People of the State of Illinois, Petitioner-Appellant, v. Don M. Atkins, et al. (John Busiere and Jessie J. Busiere, Tract No. 244-245), Defendants-Appellees.
    Gen. No. 65-81.
    Fifth District.
    March 21, 1966.

      William G. Clark, Attorney General, of Springfield (William W. Hart, Jr. and Richard 0. Hart, Special Assistant Attorneys General, both of Benton, and Richard E. Quinn, Special Assistant Attorney General, of counsel), for appellant.
    Elmer Jenkins, of Benton, for appellees.
   GOLDENHERSH, P. J.

Petitioner, The Department of Public Works and Buildings, appeals from the judgment of the Circuit Court of Franklin County entered upon a jury verdict in the amount of $38,000, in an action to condemn a parcel of land owned by defendants John and Jessie J. Busiere. Title was vested in petitioner in accordance with the provisions of Chapter 47, section 2.1 et seq., Ill Rev Stats 1965, and at the time of trial the construction of the highway for which the parcel involved was taken, had been completed.

The parcel of land condemned fronted 146 feet on the northerly side of West Main Street, the main thoroughfare in West City, in Franklin County. The westerly 82 feet of the property had a depth of 149 feet, and the easterly 64 feet had a depth of 298 feet. The easterly portion of the land was improved with a building, irregular in shape, with a maximum width of 65.8 feet and a maximum length of 116.6 feet. The building was erected, in stages, from 1941 to 1950. John Busigre, one of the owners, operated a garage, repair and paint shop, in the premises, and it is clear from the testimony that the property was being utilized for its highest and best use. A number of photographs, offered and admitted in evidence, portray the grounds and the interior and exterior of the building.

Five witnesses testified for petitioner; both defendants and 25 additional witnesses testified for defendants. The valuation testimony for petitioner ranged from a low figure of $13,000 to a high of $17,300; the testimony on behalf of defendants ranged from a low of $48,000 to a high of $75,000.

As grounds for reversal of the judgment, petitioner contends that several of the witnesses called by defendants used erroneous methods of evaluating defendants’ property, and the court erred in denying petitioner’s motions to strike their testimony.

The testimony of defendants’ witness, Ritchason, shows that his opinion that the fair cash market value of defendants’ property was $60,000, was based on a replacement value of $45,000 for the improvements and a value of $15,000 for the land. Defendants contend that the opinion of this witness as to value is not based solely on the sum of the separate valuation of the land added to the replacement cost of the building, that the witness considered these figures, among other things, in arriving at his opinion, but a search of the record fails to reveal anything else which was considered by this witness in arriving at the fair cash market value.

The record shows that the opinion of defendants’ witness Taylor was based on the cost of reproducing the building, and again, a search of the record fails to reveal what else, if anything, was considered. It is clear, from his testimony, that in arriving at his opinion he used the reproduction cost without giving any consideration to depreciation of the improvements.

Although the witness Payne answered affirmatively that he had knowledge of real estate values in the vicinity of defendants’ property, the record fails to reveal the basis of that knowledge. His testimony, during cross-examination shows clearly that the sole basis of his opinion was his comparison with what it had cost him to build a building six years earlier. The record fails to reveal the nature and type of construction of the building to which he referred.

Defendants’ witness, Greenberg, based his opinion on the replacement cost of the improvements necessary “to get the man going again.” Although he testified to an acquaintance with the type of property involved, not only in West City, but in a large area in Southern Illinois, it is clear from the record that replacement cost of the building was the sole factor considered in reaching the opinion of value to which he testified.

The witness, Angus Knight, called by defendants, in answer to the question as to what factors he considered in arriving at the valuation of defendants’ property, stated “Well, the only thing I could do was to use my own building.”

Ernie Weeks, testifying as to value, based his opinion on a comparison of defendants’ building with his own building in West Frankfort.

The opinion of Holland Simmons was based on what he paid for his property in Benton, in which property, he operates a retail drug store. There is no evidence to show in what manner a drug store in Benton is comparable to a garage building in West City.

The requirements for qualifying a witness to testify as to value of real estate are not stringent, and anyone who is acquainted with the property in question and has knowledge of values, either in the sale or ownership of property nearby, is competent to testify. Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, 66 NE2d 873. The qualification is “knowledge of values,” which may, among other factors, be based on acquaintance with the property, or sale or ownership of property nearby. Without knowledge of its value, acquaintance with the property, or sale or ownership of nearby property, does not qualify the witness to testify as to fair cash market value.

In an eminent domain proceeding, the owner of property taken is to be compensated for its fair cash market value for its highest and best use, City of Chicago v. Equitable Life Assur. Society, 8 Ill2d 341, 134 NE2d 296. Fair cash market value is the price at which the property taken would be sold if it were sold by a willing seller to a willing buyer. Housing Authority of the City of East St. Louis v. Kosydor, 17 Ill2d 602, 162 NE2d 357. Compensation for land taken is based on the value of the land, as land, with all its capabilities. Department of Public Works & Buildings v. Hubbard, 363 Ill 99, 1 NE2d 383. As stated by the Supreme Court in Department of Public Works & Buildings v. Lotta, 27 Ill2d 455, at page 456, 189 NE2d 238, “We have consistently held that the fair market value of improved property is not the sum of the value of the building and the value of the land computed separately. For this purpose, the whole does not necessarily equal the sum of the parts. The value of unimproved land, adaptable for any use, may diminish, as land, when improved by the construction of a building and so committed to a particular use. For similar reasons, the construction of a building may not produce an increment in value equal to its cost, since the improvement may not be desirably situated. To avoid misleading and confusing the jury, the evidence may properly be confined to the value directly at issue, that is, the value of the improved land as a whole.”

In Department of Public Works & Buildings v. Divit, 25 Ill2d 93, 182 NE2d 749, in holding that the trial court had erred in refusing to strike the testimony of a witness, the court at page 100, said: “The measure of damages for property taken is the amount for which the entire property would voluntarily sell, and although replacement or reproduction cost is one element which may be considered, it is not alone conclusive. (Department of Public Works & Buildings v. Pellini, 7 Ill2d 367, 131 NE2d 55; Forest Preserve Dist. of Chicago v. Chilvers, 344 Ill 573, 176 NE 720.) The test is not what the improvements originally cost or would cost if replaced, but rather the value of the land and buildings considered as a whole. (City of Chicago v. Giedraitis, 14 Ill2d 45, 150 NE2d 577.) Since Ray based his opinion solely upon reproduction costs without regard to what a buyer and seller would agree upon, his testimony concerning the value of the land taken was improper. And since we cannot know the extent to which the jury was influenced by the improper standards employed by the latter witness, it necessarily follows that there must be a new trial to determine the value of the land taken.”

The testimony of the witnesses enumerated should have been stricken and the judgment must be reversed.

Although the conclusion reached makes it unnecessary that this court consider the other grounds for reversal urged by petitioner, one of the issues raised in petitioner’s brief should be discussed.

Petitioner argues that the court erred in denying its motions to limit the number of witnesses for each side on the issue of valuation. Upon retrial, we refer the trial court to the case of Geohegan v. Union El. R. Co., 266 Ill 482, 107 NE 786, in which opinion, at page 488, the court quoted with approval, the following statement from the opinion of the Supreme Court of Michigan in Fraser v. Jennison, 42 Mich 206, 3 NW 882: “There must be some limit to the reception of expert evidence, and that which was fixed in this case was quite liberal enough. To obtain such evidence is expensive, since desirable witnesses are not to be found in every community, but an army may be had if the court will consent to their examination; and if legal controversies are to be determined by the preponderance of voices, wealth, in all litigation in which expert evidence is important, may prevail almost of course. But one familiar with such litigation can but know that for the purposes of justice the examination of two conscientious and intelligent experts on a side is commonly better than to call more, and certainly when five on each side have been examined the limit of reasonable liberality has in most cases been reached. The jury cannot be aided by going farther.”

The judgment of the Circuit Court of Franklin County is reversed and the cause remanded for a new trial.

Reversed and remanded for new trial.

MORAN and EBERSPACHER, JJ., concur.


author: PRESIDING JUSTICE GOLDENHERSH.

text:
    People of the State of Illinois, Appellee, v. Albert Scott, Appellant.
    Gen. No. 65-10.
    Fifth District.
    March 25, 1966.
    Curt C. Lindauer, Jr., of Belleville, for appellant; John M. Karns, Jr., State’s Attorney, of Belleville (Kenneth J. Juen, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.