of Dr. Brooks is convincing. It may be said in passing that it
was anticipated by those in charge of the ceremonies that there
might be inclement and unfavorable weather conditions and in
anticipation of such contingency had prepared and drawn up an
alternate program to be used in case of inclement or unfavorable
weather, the plan being known as Plan 6. I am convinced that the
defendant simply made the wrong guess as to the weather
conditions and in that decision committed an act of negligence.
Since these forces of nature could have reasonably been foreseen,
it appears to me that the defendant did not use reasonable care
to guard against said forces of nature.
The defendant should have foreseen that under the loose and
negligent manner in which the ladies' stand was constructed that
it might be blown over by winds common in that section and
community and do injury to those persons occupying the stands.
The defendant relies in its affirmative defense upon the
proposition of law that where a loss or injury is occasioned by
natural causes such as could not be prevented by human skill and
foresight, then the loss or injury is due to an act of God, vis
major, or unavoidable accident, for which defendant is not
liable. The mere fact that a high wind was blowing at and before
the ladies' stand blew over did not make the blowing over of the
stand an act of God so as to exempt the defendant from liability.
A loss or injury is due to an act of God when it is occasioned
exclusively by natural causes such as could not be prevented by
human care, skill and foresight. The collapse of the ladies'
stand was the result of the previous negligence in its
construction which permitted it to be overthrown by a wind that
was not unprecedented; at least it was the type of wind that
could and does occur many times during the month of July in the
community where the Depot was located. It is the opinion of the
Court that there was an intervening human agency which
contributed to cause the damage herein and as such the injuries
were not caused by an act of God, vis major or unavoidable
accident. This question has been aptly discussed in Blue v. St.
Clair Country Club, 7 Ill.2d 359, 131 N.E.2d 31; Jacobs v.
Hagenback Wallace Shows, 198 Mich. 73, 164 N.W. 548; Brewer v.
United States, D.C., 108 F. Supp. 889; City of Chicago v. Smith,
95 Ill.App. 335; Sandy v. Lake Street El. Ry. Co., 235 Ill. 194,
85 N.E. 300; Wald v. Pittsburg, C., C. & St. L. Ry. Co., 162 Ill. 545,
44 N.E. 888, 35 L.R.A. 356; Berg v. New York Central R.R.
Co., 391 Ill. 52, 62 N.E.2d 676; Merlo v. Public Service Company
of Northern Illinois, 381 Ill. 300, 45 N.E.2d 665.
In conclusion I find that this action was properly brought
under the Tort Act, 28 U.S.C.A. §§ 1346, 2671 et seq.; that the
plaintiffs were not guilty of any contributory negligence; that
the defendant was negligent in failing to properly construct the
ladies' stand safely and securely in place so as not to be blown
over by the windstorm of common and usual proportions in that
community; and lastly, that the windstrom which was a natural
force over which the defendant had no control was not the sole or
proximate cause of injury but the injury was the result of
negligence of the defendant.
It is the Order of the Court that the issues on the question of
liability be found in favor of the plaintiffs and against the
defendant. A judgment in conformity with this opinion should be
prepared and presented to the Court. In compliance with Rule 52,
Rules of Civil Procedure, the Findings of Fact and Conclusions of
Law appear in this opinion and the same are adopted as a Findings
of Fact and Conclusions of Law as contemplated by Rule 52.
It is further Ordered that a Pre-Trial conference concerning
the issues of damage be set for May 28, 1958 at 10 o'clock a.m.
in the Federal Court courtroom in Springfield, Illinois, at which
time counsel shall be prepared to submit medical
reports, bills and all pertinent matters touching the question of
damages. Any discovery procedure by either party should be
resolved by that date. The conference will include all of the
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