Appeal from the County Court of Sangamon County; the Hon.
WILLIAM D. CONWAY, Judge, presiding. Reversed and remanded with
Rehearing denied January 21, 1964.
This is a suit for damages in the amount of $360.34. The jury on a directed verdict returned a verdict for the plaintiff of $245.71. Plaintiff appeals.
Defendant Stenzel was 19 years of age and lived with his parents at Osco, Illinois. He was on his way to Springfield, driving a truck borrowed from a neighbor. He had started from home with a load of cattle and when the truck developed clutch trouble, he came into Springfield, borrowed the truck from a neighbor, went back to Havana, loaded the cattle into the borrowed truck and was on his way back to Springfield when he apparently went to sleep and the truck ran off the road, collided with the pole of the plaintiff light company, breaking the pole and damaging the wire system. The accident occurred December 31, 1961 in the early hours of the morning. The broken pole was replaced and temporary repairs made on the morning of December 31, 1961, which was a Sunday. A snow storm came up and the repairs were not completed until January 2, 1962. The trial court granted a motion for summary judgment against the defendant on the issue of liability and the issue of the plaintiff's damages was left for determination on the trial of that issue.
The plaintiff claimed damages as follows:
Materials 85.39 Less Salvage 1.20 84.19 Plus store's expense at 8.26% 7.05 91.24 Total material cost 91.24
Labor 12 hours at regular rates 38.10 21 hours at double time rates 139.13 177.23 Fringe benefits 23.2% 41.12 Supervision 10.4% 18.43 Total labor costs 236.78
General Overheads 6.5% 21.32 Truck expenses 11 hr. at $1.00 per hr. 11.00 32.32 _________ Total ................................. $360.34
In addition to the labor costs and the material costs the plaintiff claimed store expenses of $7.05, fringe benefits of $41.12 for the labor, supervision costs of $18.43, general overhead expense of $21.32 and truck expenses of $11, as shown by Plaintiff's Exhibit No. 14. The pole broken was one of about 200 to 250 poles making up one of the transmission lines of the plaintiff. The pole broken had about 15 years useful life and the assistant superintendent of construction for the Springfield Division of the plaintiff company testified such a pole had an average useful life of 33 years. The life of the other materials used in the repairs was not established. Some of the materials were retained and used in the repairs. When the repairs were finished the distribution line was restored to substantially the same condition it was before the damage occurred. The pole substituted was a 40-foot pole while the one broken was a 35-foot pole.
The assistant comptroller of the plaintiff testified how he computed the charges for store account, fringe benefits, supervision, general overheads, and truck expense. The store expense was computed by dividing the amount of stores issued into the cost of handling and this amounted to a percentage of 8.26. The fringe benefits were computed by taking the total payroll and dividing it into the costs of these fringe benefits, which were for holidays, time when the employees were ill, pay for time not worked, pensions, and insurance, and this amounted to a percentage of 23.2. Supervision expenses included clerks in offices, and pay of people below the administrative level and above the foreman level, such as the superintendent of construction, superintendent of operation, department line superintendents at Springfield and Peoria, assistant line supervisors, a clerk at Springfield, operations supervisors at Pekin and Lacon and others. The computation was made by dividing the supervisory expense by the total pay of line crews which amounted to a percentage of 10.4. General overhead expenses are the costs of the general office people of the company, such as the general accounting department, the payroll department, administrative officers and employees and other full time employees of the company. The expense of rent for a nine story office building in Peoria was in the general overhead class. The computation on this item was by dividing the total cost of labor and materials into the administrative and general overheads class, which amounted to a percentage of 6.5. The truck expense was based on a determination that operation of the truck cost the company approximately $1 per hour.
The defendant objected to the evidence as to the items for store expense, fringe benefits, supervision expenses, and general overheads, as not directly attributable to the negligence of the defendant. The plaintiff submitted a motion for directed verdict for the sum of $360.34, which included all the items shown in its Exhibit No. 14. Defendant submitted motion for directed verdict against the defendant for the sum of $122.58, being the proportionate part of the plaintiff's labor and materials costs based on the life of the pole, before it was broken, approximately 45%. The court denied the plaintiff's motion for a directed verdict and allowed the defendant's motion for a directed verdict in part as follows: (1) 45% of the cost of materials and store's expenses; (2) 45% of 33 hours of labor at regular rates; 100% of one-half of 21 hours at double time rates; (3) 45% of fringe benefits and supervision; (4) 45% of general overhead expenses; (5) 45% of truck expenses. Apparently, the trial court computed the charges on a 45% basis across-the-board as to everything claimed by the plaintiff except the double time labor rates. According to the computation of the court this amounted to $245.71 which the court directed the jury to find for the plaintiff and against the defendant.
Two questions are presented on this appeal. One, was the summary judgment for the plaintiff and against the defendant on the question of liability proper under the evidence. There is no question that whatever happened, it happened as the result of some action on the part of the defendant. He was driving the truck and no other person or other vehicle was involved. The weather was clear and the pavement was dry. So far as was known there was nothing mechanically wrong with the truck. The only explanation for the happening by the defendant was either that he may have gone to sleep, or that he had been banged up a little in reloading the bulls into the truck, one of them worked him over a little and he was a little stiff and sore and may have been excited.
While the defendant is a minor, admissions showing negligence may be used against him, whether in a pretrial deposition or in the trial. Ferrell v. Chicago Transit Authority, 33 Ill. App.2d 321, 179 N.E.2d 410; Reed v. Kabureck, 229 Ill. App. 36; Tennes v. Tennes, 320 Ill. App. 19, 50 N.E.2d 132. When a party testifies clearly and unequivocably to a fact which is peculiarly within his own knowledge such testimony may be considered as a judicial admission. Tennes v. Tennes, 320 Ill. App. 19, 33, 50 N.E.2d 132. The language in the Tennes case is particularly apt in this case. The court in that case said: "When a car proceeding along a street suddenly swerves into a pole with no apparent cause, and there is no attempt to explain the occurrence, no claim that any other car or person was involved or that there was a hidden defect in the car, but simply a situation where the driver, whether asleep or awake, steered into a pole, it cannot be said that reasonable minds could differ on the question of negligence."
Here there was no conflict in the evidence. Where there is no conflict a question of law is presented as to whether on the facts a verdict should be directed. Biggerstaff v. Estate of Nevin, 2 Ill. App.2d 462, 119 N.E.2d 826. When facts are undisputed and but one reasonable inference can be drawn from them, it then becomes a question of law. Thien v. City of Belleville, 331 Ill. App. 337, 73 N.E.2d 452; Downs v. Baltimore & O.R. Co., 345 Ill. App. 118, 102 N.E.2d 537. In this case, the only inference that could possibly be ...