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O'brien v. Musfeldt

OPINION FILED SEPTEMBER 14, 1951

ANSON O'BRIEN AND BARBARA O'BRIEN, PLAINTIFFS-APPELLEES,

v.

MARGARET S. MUSFELDT, DEFENDANT-APPELLEE, AND CENTRAL ENGINEERING COMPANY, DEFENDANT-APPELLANT.



Appeal by defendant from the Circuit Court of Rock Island county; the Hon. RAY I. KLINGBIEL, Judge, presiding. Heard in this court at the February term, 1951. Judgment affirmed. Opinion filed September 14, 1951. Rehearing denied December 13, 1951. Released for publication December 13, 1951.

MR. PRESIDING JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.

Rehearing denied December 13, 1951

On October 21, 1948, Anson O'Brien and his daughter, Barbara, were riding on U.S. Route 67 and Illinois Route 92 in an automobile owned by Anson. They were driving in a southerly direction at a point on said highway which runs north and south between Fourth and Fifth streets in the village limits of Milan, Illinois, and were attempting to pass a truck on said highway. At the same time Margaret S. Musfeldt was driving her car in a northerly direction on said highway, when the two cars collided, and the occupants of both cars were injured.

Anson O'Brien filed a suit in the circuit court of Rock Island county, charging Margaret S. Musfeldt with negligence in operating her car which caused his injury. Barbara O'Brien filed a like suit. Margaret S. Musfeldt filed a suit against Anson O'Brien claiming that it was through his negligence that she was injured.

At the same time Anson O'Brien filed a suit against the Central Engineering Company, a corporation who had a contract with the State of Illinois for improving said highway, and it is claimed through its negligence that he was injured. Barbara O'Brien filed a like suit and Margaret S. Musfeldt filed a like suit. The case was submitted to a jury who found the issues in favor of the plaintiffs. At the conclusion of plaintiffs' evidence appropriate motions were made by the defendant for a directed verdict, also at the conclusion of all the evidence. These motions were denied, and the case submitted to a jury, that found the issues in favor of the plaintiffs and assessed Anson O'Brien's damages at $6,000, Barbara O'Brien's damages at $4,000, and Margaret S. Musfeldt's damages at $25,000. At the conclusion of plaintiffs' evidence Anson O'Brien and Barbara O'Brien dismissed their suit as to Margaret S. Musfeldt and Margaret S. Musfeldt dismissed her suit as against Anson O'Brien, so the case went to trial by the three plaintiffs against the Central Engineering Company.

Count four of Anson O'Brien's complaint is against the Central Engineering Company alone and is as follows: "Anson O'Brien, complaining of Central Engineering Company, alleges: "1. The defendant, Central Engineering Company, is an Iowa corporation, which is duly qualified and authorized to do business in the State of Illinois.

"2. On the 30th day of June, 1947, said defendant, Central Engineering Company, by its officers and agents, entered into a contract with the State of Illinois acting by and through the Department of Public Works and Buildings of said State, to build, construct or repair certain highways in the State of Illinois known as United States Route 67 and Illinois Route 92, and on October 21, 1948, a certain portion of said highway so being constructed or repaired by said defendant under the aforesaid contract and lying between a point one mile south of the junction of United States Route 67 and Illinois Route 92 east in the village of Milan, Illinois, and a point about one quarter of a mile south of the junction of United States Route 67 and Illinois Route 92 west, was still incomplete and under construction by said defendant under the aforesaid contract.

"3. Under the terms of said contract the defendant, Central Engineering Company, a corporation, undertook to furnish certain lights, barricades and warning signs in the language of the contract as follows:

`Barricades, Warning Signs and Lights. In order to insure the safety of traffic, special attention shall be paid to the erection and maintenance of barricades and warning signs, all of which shall be well lighted at night. The Department will furnish and erect the proper warning signs in advance of each end of the job. The contractor shall furnish and erect the necessary barricades, together with the signs required on the barricades, and shall also furnish all lights required on all the signs and barricades, including the lights on the advance warning signs erected by the Department. The contractor shall maintain the signs, barricades and lights in a satisfactory condition at all times. It is understood and agreed that the cost of all work and arrangements outlined above has been included in the bid, and no extra compensation will be allowed.

and said contract further provides that, "The following special provisions supplement the standard specifications for road and bridge construction," adopted July 1, 1942, which govern the construction of S.B.I. Route No. 3 . . . and in case of conflict with any part or parts of said specifications the said special provisions shall take precedence and shall govern.' The standard specifications for road and bridge construction provide as follows:

"Barricades and Warning Signs. When any section of road is closed to traffic the contractor shall provide, erect and maintain barricades, red flags and red lights at each end of the closed section and at all intersecting roads. He shall also erect and maintain at the same points the warning and other signs provided by the Department.

"When the special provisions provide that traffic is to be permitted to use the road during its construction, the contractor shall protect the work and provide for safe and convenient public travel by providing, erecting and maintaining such barricades, red flags and red lights as are necessary, and by erecting and maintaining the warning and other signs provided by the Department.

"Whenever any section of road is opened to traffic before all work on that section is completed, or while construction operations are being conducted thereon, the contractor shall provide, erect and maintain at each end of the section and at intermediate points where traffic may enter said section of road, the necessary barricades, `Travel At Your Own Risk' signs, red lights and flags, and ...


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