Appeal from the Circuit Court of DuPage county; the Hon.
RUSSELL W. KEENEY, Judge, presiding. Affirmed.
MR. JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
This is a suit resulting in a verdict by a jury in favor of the plaintiff and against the defendant John Clarke, administrator of the estate of Lyle Clarke, d/b/a Clarke Outdoor Spraying Company, and a judgment entered thereon assessing the plaintiff's damages at the sum of $10,000 for certain personal injuries allegedly suffered by the plaintiff as the result of the decedent Lyle Clarke's negligence. The other original co-defendants, Mid-State Freight Lines, Inc. and A.O. Schoen were found not guilty by the verdict and the plaintiff has not appealed from that. The complaint contained counts alleging negligence and counts alleging wilful and wanton conduct. The motions of the defendants for directed verdicts at the close of the plaintiff's evidence and at the close of all the evidence were denied as to the counts alleging negligence and were allowed as to the counts alleging wilful and wanton conduct. The defendant John Clarke, administrator, filed a motion for judgment for that defendant notwithstanding the verdict. He did not file a motion for new trial. The trial court denied the defendant's motion for judgment notwithstanding the verdict and this is an appeal from that order and the judgment entered.
[1-5] The question presented by the appeal, therefore, is the rather narrow issue of whether there is any competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorable to the plaintiff, tending to prove the material elements of the plaintiff's case and from which the jury might reasonably find for the plaintiff and against that defendant to the effect that the plaintiff, while free from contributory negligence, was injured as a direct and proximate result of the negligence of the decedent Lyle Clarke; on this record we are not concerned with the weight or credibility of the evidence; reasonable inferences may be drawn by a jury from established facts, and a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence; only where there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for judgment notwithstanding the verdict: Lindroth v. Walgreen Co. et al. (1950) 407 Ill. 121. The principles applicable on such a motion are the same as are applicable on a motion for a directed verdict, and are well settled: Neering v. Illinois Cent. R. Co. (1943) 383 Ill. 366.
At about 2:15 a.m., August 23, 1952, the plaintiff was injured while riding as a passenger in the right front seat of an automobile driven by one Roland Stinson, on U.S. Route 34, also known as Ogden avenue, in a southwesterly direction about 1/2 mile east of Route 83 and a short way north of the north boundary of Hinsdale, Illinois. Ogden avenue is a 4-lane, heavily travelled, arterial highway passing through Hinsdale in a northeast to southwest direction. The terrain is rolling. The automobile of Stinson collided with the rear of a truck owned and operated by the Mid-State Freight Lines, Inc., of which A.O. Schoen was the driver, then also being driven in a southwesterly direction on Ogden avenue. The point on Ogden avenue where this incident occurred is between Adams and Monroe streets, which are 2 north-south streets running into Ogden avenue. That point and Ogden avenue generally for apparently 1 1/2 to 2 blocks east and about the same distance west of the point is outside the village limits of Hinsdale. But about 1 1/2 blocks east of the point of this occurrence the village boundary line jogs across Ogden avenue and extends north for several blocks and extends east along Ogden avenue some distance. So that, beginning about 1 1/2 blocks east of the point of this occurrence Ogden avenue is for some distance entirely within Hinsdale and Hinsdale there extends northwardly from Ogden avenue for several blocks. And west or southwest of the point of this occurrence Ogden avenue, running diagonally southwestwardly, comes closer and closer to the village limits of Hinsdale, finally forms the north boundary thereof for something more than 2 blocks, and ultimately intersects Route 83 at the northwest corner of the village, Route 83 running north and south and being the west boundary of the village. Ogden avenue at Adams street near the scene of the accident, is about 300 feet north of the village limits. North street is the first through street in the village south of Ogden avenue, it runs east-west, and, topographically, the intersection of North street and Monroe is the highest point in the village, and the point on Ogden avenue where this incident occurred is 20 or 25 feet lower. The area south of Ogden avenue between Monroe and Adams streets and north of North street is vacant, is part of an old "peat bog" and "slough," and is surrounded by higher terrain on all sides to form a natural bowl at Ogden avenue and Monroe, about 1/2 block from the point of this accident on Ogden. That immediate area south of Ogden avenue is brush and weeds. North of Ogden is low land and some trees.
The plaintiff, in substance, alleged that Lyle Clarke, the defendant's intestate, then doing business as Clarke Outdoor Spraying Company, had contracted with Hinsdale to spray the village with mosquito control fog from time to time during the summer of 1952 as the need might arise; that Clarke so conducted such fogging operation at the times in question during the night of August 22, 1952 and the early morning of August 23rd, by spraying certain areas of the village; that he had sprayed certain areas both north and south of Ogden avenue near the vicinity of the collision; that the mode of operation of Clarke was to travel along the streets with a motorized spray apparatus, releasing a chemical fog to destroy mosquitoes and other insects; that Clarke depended on the force of the wind to carry this chemically created and saturated fog from the street to areas beyond the curbs, and that at the times in question large patches of such fog were created and blown over and upon Ogden avenue; that the truck of Mid-State Freight Lines, Inc. encountered one of these patches of created mosquito control fog and stopped or nearly stopped therein creating a special hazard to persons lawfully travelling on the highway; that due to the alleged negligence of Clarke the automobile of Stinson, in which the plaintiff was riding, collided with the rear of the Mid-State Freight Lines, Inc. truck, which was so stopped or nearly stopped in such patch of created mosquito control fog, and as a direct and proximate result of Clarke's negligence and the ensuing collision the plaintiff was injured by being thrown in and about the automobile in which he was riding.
The charges of negligence are: (1) Clarke negligently and improperly carried on his spraying operation; (2) Clarke negligently failed to display warning signs of the hazardous situation which he knew or should have known would be created by his operation; (3) Clarke negligently carried on his spraying operation at a point so close to Ogden avenue as to endanger persons lawfully traversing the same, and (4) Clarke negligently carried on his spraying operation at a time when he knew or should have known the wind would carry the fog so created over and upon the highway, obstructing and impairing the vision of persons lawfully traversing the same.
The evidence, viewed in the light and in the manner in which it must be viewed for the purposes of this appeal on the limited issue presented, indicates that Clarke was operating the Clarke Outdoor Spraying Company business and on August 22, 1952 had 2 motorized spray generator units in use in Hinsdale, 1 operated by William Bonow, and the other by John Husa, Clarke's employees. The trucks went up and down each street very slowly, 3-5 m.p.h., and released the mosquito control fog in and at right angles to the wind until the entire village had been covered. The wind was utilized to distribute it over an area, a light wind carrying the fog approximately 300 feet for effective coverage. Wind direction determines whether north-south or east-west streets are used. The fog was white in color and was emitted at the rear of the machine; it was just like a rolling white fog and rolled toward the center of a block and then dissipated rapidly. On cool ground it would tend to stay down for about 100 feet or so and then it gradually billowed up 25 or 30 feet and disappeared, with a little tendency to settle in a depression. If the wind shifted and blew it back toward the truck from which it was being generated the fog would cut down the visibility of the operator. One in the fog cannot see at all for an instant when the full force of the fog hits. The generator trucks had red flasher signals on top to warn people on the highways. The fog is emitted from one side of the truck at the rear from a nozzle close to the curb and at the curb furthest away from the wind. The fog contains fuel oil and DDT, which has a recognized odor. The odor of the fog, which persists from 5 to 6 hours, can be readily recognized, for it smells like any petroleum product. The fog appears white to the vision and is comparable in color to an actual natural fog. The density of the fog varies when it is diluted with air. The fogging operation is done at night, for most effective operation, because then things cool off and the fog stays close to the ground. Latent heat in a surfaced street or road causes the fog to lift. The velocity of the wind and the temperature of the ground have something to do with the time in which the fog dissipates. It ordinarily disappears within 2 or 3 minutes but sometimes not for 30 minutes after spraying or being emitted from the machine. Some droplets making up the fog remain in the air for as much as 5 or 6 hours afterwards.
John Husa, operator of one of Clarke's trucks on the night in question, testified that he was spraying the streets in Hinsdale on the night of August 22nd and early morning of August 23rd, beginning about 7:00 p.m.-7:30 p.m. He divided the area to be sprayed with William Bonow, operator of the other truck. No one gave any definite orders. It was his first spraying operation in Hinsdale. Husa and Bonow had been supplied with maps of the village. Husa took the area south of the Burlington R.R. tracks (which pass diagonally through Hinsdale in a northeast-southwest direction about 7 blocks south of Ogden avenue), and Husa drove down the streets that run east and west, across the then prevailing direction of the wind at that time. No warning signs or any indication of spraying operations were put out or displayed that night. At about 2:30 a.m., August 23rd, after Husa and Bonow had finished their job, Husa arrived in his truck at the corner of York road and Ogden avenue, a short distance west of the point of the accident, and met Bonow, the other driver, there, when and where they both then heard a police ambulance going to the scene of the accident.
William Bonow, the operator of the other fog generating truck, began operations about 7:00-7:30 p.m.; he testified to the effect that he did not know exactly which streets he had operated upon that night; he did not know what street he finished up on that night; that he could not be sure of the general section; that he had no recollection of where he was between 2:00 and 2:15 a.m.; that at 2:30 or 3:00 a.m. at York and Ogden the spraying was finished; the entire north half of the village was done; on and north of Ogden avenue (presumably within the village limits) and from Ogden avenue to North street between Route 83 on the west and Vine street (a north-south street 2 1/2 blocks, about, east of the point where the accident occurred) fogging was carried on, as well as around the edges of the area bounded by Ogden, North, Adams, and Monroe (the so-called old peat bog and slough region). He could not remember from what direction he approached the York road-Ogden avenue meeting place with Husa after the operations were finished. He could have approached it from York or Ogden avenue.
Oscar Hein, a police officer of Hinsdale, on the night in question, was aware that it was being sprayed for mosquitoes. He had occasion to investigate the accident in the early morning of August 23rd, on Ogden avenue. He drove southwesterly on Ogden avenue from a point east of the scene of the accident, and on his way to the scene of the accident he noticed a fog and ran through two spots of it. He could not recall the streets where those spots were; it cut down his visibility. After going through those patches of fog he proceeded to the scene of the accident on Ogden avenue between Monroe and Adams street, somewhat north of the village limits of Hinsdale. The accident there involved two vehicles, one belonging to Mid-State Freight Lines, Inc. and the other belonging to Roland Stinson. Hein said he had occasion to smell the mosquito control fog and that such smell was present at the scene of the accident, but no fog was there when he arrived. The odor, he says, lasts much longer than the fog.
Joseph Dawson, another police office of Hinsdale, also investigated the accident with Hein. Dawson says there was no fog at the scene of the accident when he arrived, but he could smell a mosquito fog. He had gone up and down the streets of Hinsdale that night and had both smelled and seen the fog at different times.
Roland Stinson, a witness for the plaintiff, said that he was driving his 1947 Pontiac with the plaintiff, King, in the front seat with him. He had stopped to eat at some place on Ogden avenue, and then started home, travelled 4 or 5 miles, and then all at once ran into a fog, which was right on him before he saw it, and he was blinded. He started to apply his brakes; the plaintiff said something to him about the fog blinding him, and Stinson was then applying the brakes; then at that time he hit the rear of the truck in front; he saw nothing but the fog, no lights; the fog cleared up some after the accident; Stinson said he was going 25 to 30 miles per hour prior to the accident; he had not seen any indication of a fog until immediately prior thereto; he saw no warning signs indicating anyone was then and there spraying for mosquitoes.
A.O. Schoen, the driver of the Mid-State Freight Lines, Inc. truck, said that he had been travelling about 25 miles per hour; had been going downhill when the fog first appeared; he said the fog was gray to grayish-white in color; it seemed to be coming from the south side of the road across to the north side and coming from the direction of certain high weeds; behind the high weeds south of Ogden avenue there are no improvements for a way; he said there was no moisture observable on the windshield of the truck he was driving. The fog seemed to be moving northerly into the woods to the north of Ogden avenue; it was a clear moonlight night and warm; the windows of the truck he was driving were open; when in the fog he could see to the end of the trailer part of his truck and approximately 15 feet beyond; he could see Stinson's headlights about 50 feet behind the truck he was driving; when Schoen entered the fog he took his foot off of the accelerator and applied the brakes, slowed down to about 10 miles per hour and continued at 10 miles per hour until this occurrence; as he got out of the truck after the accident the fog lifted and he then saw no fog in any direction.
The defendant raises the following points: (1) there is no competent evidence and no inferences reasonably to be drawn from the evidence to support the judgment; (2) the fog was not a "mosquito fog," was not created by Clarke, but was of natural origin; (3) Clarke was not guilty of actionable negligence; (4) any "mosquito fog" was not the proximate cause of the ...