Appeal from the Superior Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Reversed and remanded with
JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This is an appeal from a summary judgment entered in the court below finding the defendant not guilty.
The complaint filed by the plaintiff set forth, among other things, the following:
"That on or about March 1st, 1956, defendant installed machinery for use in the defendant's business of window shade manufacture, on defendant's premises above described, and thereupon began and has since continued and is now engaged in the use of said machinery which causes great vibrations which are transmitted through the earth and other strata beneath the aforementioned Des Plaines Street to the lands and properties of plaintiff that necessarily and naturally result in shaking, trembling and displacement of plaintiff's building and did cause the subsidence, settling and cracking of the building of plaintiff and other damages as hereinafter set forth."
"That by reason of said vibrations in and about the dwelling house of the plaintiff during the time aforesaid, and at the present time, the comfort of the plaintiff and her health as well as the enjoyment of her home, have been and are greatly impaired, and the value of said premises diminished, to-wit: Twelve Thousand ($12,000) Dollars; and the plaintiff is thereby prevented from selling the same which she much desires to do to the plaintiff's damage, in the whole, the sum of Twenty Thousand ($20,000) Dollars."
The defendant did not move to strike the complaint as being insufficient in law, but answered. The answer, among other things, contained the following:
"Said defendant admits that on or about March 1, 1956 it installed certain machinery in a certain portion of the plant located on the northerly part of the premises occupied by it, but denies that said machinery has caused vibrations which are transmitted to the lands and properties allegedly owned by the plaintiff and denies that the operation of said machinery has resulted in the sliding, trembling and displacement of the building allegedly owned by plaintiff and denies that the operation of said machinery has caused the subsidence, settling and cracking of the building allegedly owned by plaintiff or any other damage complained of in said complaint."
"Said defendant denies that the comfort and health of the plaintiff or the enjoyment of the home allegedly owned by plaintiff have been impaired or that the value of the premises allegedly owned by the plaintiff has been diminished in any sum whatsoever or that the plaintiff is prevented from selling said premises or that the plaintiff is damaged in any sum whatsoever as a result of any of the acts or things charged in the complaint."
These respective allegations of the complaint and answer raise, without doubt, certain questions of fact.
Defendant filed a motion for summary judgment which set forth as the issues to be resolved in the case the conflicts of facts heretofore pointed out in the pleadings. That motion was accompanied by certain affidavits, which, the defendant says, "conclusively prove" the allegations of their answer. The detailed affidavits were of the defendant's project engineer and of a seismologist, hired by the defendant, who had made tests relating to the alleged vibrations. The affidavits were carefully prepared, made by experts in their field. They were accompanied by exhibits, pictorial as to location and detailed as to the results of the tests. They tended to prove for the defendant that the machinery of the defendant caused no vibrations in the area adjacent to defendant's property, and that such vibrations as did occur within that area were slight and inconsequential insofar as damaging the plaintiff's property was concerned. They certainly tended to support the defendant's answer.
Plaintiff introduced the affidavits of two lay witnesses. Both of them were residents in the property owned by the plaintiff and had been residents before the installation of the new machinery in the defendant's property and, therefore, all of the time involved in the complaint. Each of the affidavits of these lay witnesses divides itself into two parts: one part which attacks the credibility and believability of the expert witnesses, makers of the affidavits of the defendant, heretofore referred to; and secondly, in regard to definite statements of fact relating to the allegations of the complaint.
As to the credibility portion of the affidavit, the affidavit of Cecelia Giudice is as follows:
"That she was present on February 9th, 1957, in her home, when certain tests were conducted in the vicinity of her home, by persons who stated that they were testing the vibrations caused by the new addition, and that at all times during said tests there was some vibration in her residence, ...