Appeal from the Circuit Court of Sangamon County; the Hon.
WILLIAM H. CHAMBERLAIN, Judge, presiding. Judgment adverse to
Rehearing denied January 3, 1967.
Plaintiffs appeal from the judgment of the Circuit Court of Sangamon County, entered upon a jury verdict finding in favor of defendant, in plaintiffs' suit for personal injuries and medical expenses.
Plaintiff, William F. Sherman, a minor, sues to recover damages for personal injuries suffered on June 26, 1964, while swimming in Lake Springfield, a lake owned and maintained by defendant, City of Springfield. Plaintiff, Robert Lee Sherman, is William's father, and sues to recover for medical expenses incurred by reason of William's injuries.
Plaintiffs complain of numerous errors committed during the trial. The alleged errors, and the evidence adduced by the parties, will be reviewed and discussed to the extent necessary to this opinion.
The evidence shows that the defendant owns a lake known as Lake Springfield. There is a beach and swimming area which is open to the public between Memorial Day and Labor Day. A fee is charged for admission to the beach area. On the east bank of this part of the lake, there is a sanded beach, where the defendant has constructed a beach house. The swimming area is separated from the rest of the lake by a bulkhead made of sheet steel pilings, which lies to the west of the beach. There are lifeguard stations on the sand beach, on a platform on the bulkhead, and near a safety rope which extends north and south through the swimming area.
When the lake and beach area were completed in 1935, a pipe was installed through which water could be pumped into the swimming area. This was used for a dual purpose, to maintain a proper level of water, and to chlorinate the water.
In January and February of 1964, employees of defendant pumped the water out of the swimming area, removed the old pipe, and installed a new one. The new pipe extended from a pump and chemical treatment room located on the south side of the lake, northwardly, for a distance of approximately 338 feet, and was constructed of pipe ranging from 8 inches to 3 inches in diameter. The pipe lengths were connected by means of mechanical joints, using gaskets, but no washers. The reduction connections were made with reducers. The 8-inch pipe was at the southerly end of the beach and the smallest pipe was at the north end. There are approximately 150 one-half inch holes drilled into the pipe, spaced 16 to 18 inches apart. Lee Nickelson, Chief Utilities Engineer for defendant, testified that the holes are needed in order to distribute the water and chlorine into the swimming area. The water and chlorine are pumped through the pipe by means of an impeller pump designed to pump 1,400,000 gallons per day.
Plaintiffs' complaint charged 9 acts of negligence, all but one of which were stricken by the court at the close of the plaintiffs' case. The charge of negligence upon which the case was submitted to the jury was that defendant "carelessly and negligently failed to install said pipe at sufficient depth to be safe for swimmers using said beach."
On June 26, 1964, plaintiff, William F. Sherman, then 17 years of age, was visiting his grandparents in Springfield. He and his brother, Robert, age 15, went to the beach, paid the admission fee, changed to swimming trunks, and entered the water. They walked out to a safety rope which extends in a northerly and southerly direction, in an area where the water is approximately 3 feet deep. They swam in deeper water, plaintiff dived off the diving tower one time, after which the boys returned to the beach, stayed there awhile, and then decided to run into the shallow water as far as they could. After doing this several times, they decided to run out and dive into the water. Plaintiff dove at a point where he estimates the water to be about 3 feet deep. When he dove, his arms were extended above his head, and his head was "straight with his body." His head hit something hard and solid, and he suffered injuries resulting in his being almost completely paralyzed.
James McKee, defendant's employee, called by plaintiffs under section 60 of the Civil Practice Act, testified that he was in charge of the job when the new pipe was installed. The old pipe was removed with a backhoe. At the south end of the beach the pipe was laid in a ditch 3 feet deep, and as it moved northwardly it was shallower, ranging as low as 12 to 14 inches. Despite the pumping there was some water in the area and they were "in the blind somewhat," and were unable to tell the exact depth of the ditch. The bottom of the ditch in which the pipe was laid was clay and mud, with an "inch or two of rock and gravel," and as they dug the ditch, the sides of the sand would fall into the ditch.
Anthony Stockus, superintendent of parks and recreation for the defendant, called under section 60, testified that after the pipe was laid, a crew of men working under his supervision, covered the pipe, tamped the gravel to a depth of 4 to 8 inches, and then placed 4 to 6 inches of sand over the gravel. The pump was turned up and the water came up through the sand and gravel like boiling water. He next checked the cover over the pipe in the middle of May. He made this check, barefoot and wearing swimming trunks, by walking the pipe from north to south, and found the pipe to be working properly. He made no check of the depth of the cover.
Plaintiffs' first complaint of error arises out of a ruling of the court during the testimony of Carter Jenkins, called by plaintiffs as an expert witness. Mr. Jenkins testified that he is a consulting engineer, with many years of experience in the fields of hydraulics, municipal improvements, water systems and recreational facilities. He identified an exhibit described as a topographic map plotted from a survey, to show the beach area, the elevations of the earth surface, the pool level, beach house, diving platform, and various other objects. The survey was made between August 17 and 21, 1964, and on September 1, 1964, at all of which times the beach was in operation. On each of the days on which the survey party worked, the pipe appeared to be functioning, and the water level appeared to be normal. The pipe was located by means of probing rods, and Mr. Jenkins stated that the pipe lay between the beach and the safety rope. The pipe is situated approximately 50 to 75 feet from the water's edge, the distance varying with the curve of the shoreline of the beach, and the 3/4-inch safety rope is located approximately 15 feet west of the pipe. The water is approximately 3 feet deep, with minor variations, both where the pipe is laid, and the rope installed. Mr. Jenkins described the manner in which the survey was made, and identified another exhibit, described as a drawing, showing the types and sizes of the pipe and reducers used in the lake installation.
Plaintiffs' counsel then asked this question: "Now Mr. Jenkins, I wish to ask you, from your observation of the particular installation, do you have an opinion based upon your experience as to whether this was a proper installation?" Defendant's objection thereto on the ground that "they have not stated all of the elements which are involved in the evidence up to now, as to the installation," was first overruled, and after argument of counsel, sustained. Plaintiffs then propounded a lengthy, detailed hypothetical question, concluding: "Now, Mr. Jenkins, do you have an opinion based on reasonable engineering principles and certainty as to whether the top of the chlorinating pipe installation or construction was at a sufficient depth below the surface of the lake bottom in this pool to prevent its movement or changes in the sand cover? Do you have an opinion?"
In reply, Mr. Jenkins stated that he had an opinion, and expressed the opinion as follows: "My opinion is that the cover is entirely insufficient over the top of the pipe and that the pipe, therefore, could move and that the cover could be moved, also." In explanation of his answer, he stated that the facts hypothesized would result in movement of the pipe, movement of the sand on top of and on the side of the pipe, and the action of the water, through the holes in the pipe, would move the sand and gravel, causing removal of the fill over the top of the cast-iron pipe.
Plaintiffs contend that the court erred in refusing to permit the witness to express his opinion, based upon his personal knowledge and observation, and requiring that the opinion be given in response to a hypothetical question. Plaintiffs argue that the court's ruling weakened the effect of the witness' opinion, to plaintiffs' prejudice. Defendant contends the court did not err, that in fact, plaintiffs' case was strengthened thereby, since it presented plaintiffs' counsel with an opportunity to repeat and emphasize the evidence favorable to them.
In Volume II, Wigmore on Evidence, (3rd edition), in sections 673 through 679, is found a discussion of the question here presented. The conclusion reached is that if an expert witness has knowledge based upon personal observation, no hypothetical presentation is necessary. In Louisville, N.A. & C. Ry. Co. v. Shires, 108 Ill. 617, at page 630, the Supreme Court said: "A medical expert may examine the patient, and from such personal examination give his opinion to the jury. If the medical expert has not made a personal examination of the patient, then the proper practice is to put a question to the witness reciting the supposed facts hypothetically, upon which the opinion of the expert is wanted." In Krueger v. Friel, 330 Ill. App. 557, at page 567, 71 N.E.2d 815, the Appellate Court for the First District said: "The answer sought was one not within the common knowledge of the layman. It was peculiarly within the knowledge of a person with special skill or training. The witness was familiar with the street car and testified from his personal knowledge. When an expert witness has personal knowledge or has personal observation and his opinion is sought, a hypothetical presentation is unnecessary, but he may be examined as an expert upon direct interrogation."
It appears, therefore, that Illinois has followed the rule enunciated in Wigmore, and the trial court erred in not permitting the witness to testify as to his opinion based upon his personal observation.
The alleged failure to consider all of the elements "involved in the evidence" does not affect the admissibility of the expert witness' opinion based on personal observation. Any evidence which it is contended was not considered, and the effect of its consideration upon the opinion expressed, are subjects for cross-examination.
Plaintiffs contend that the trial court improperly instructed the jury that certain testimony of Mr. Jenkins, Herbert R. Williams, Cindy Campbell, Abigail Clauter and Robert L. Sherman could not be considered as any evidence of the conditions and circumstances in existence on the date on which the minor plaintiff was injured.
Following the expression of his opinion, plaintiffs' counsel inquired of the expert witness, Carter Jenkins, whether the survey which he prepared, in any manner modified or altered his opinion. The witness stated that the survey confirmed his opinion that there was a movement of the pipe, the sand fill, and the sand to the side of the pipe. He was then asked what he found when he made the survey. Defendant's attorneys objected, and after considerable colloquy between counsel, and some discussion between counsel and the court, the court stated to the jury: "Ladies and gentlemen of the jury, I'm overruling this objection, and the evidence you're about to receive you can take only in this limited sense: The testimony that you will receive at this point, I'm advising, you are not to consider as to what the condition was on June 26th, 1964, which was the day of the injury to the plaintiff, but may be received only by you in conjunction with the testimony of this witness. Do you follow me?
"In other words, you are limited on this. You can only consider this testimony in connection or in conjunction with this witness's testimony, his line of testimony, but you are not to consider this testimony as to what the conditions on the beach were on June 26th, 1964."
Mr. Jenkins then testified that on August 18, 1964, there was no cover over the flange of the 6-inch by 4-inch reducer, and on September 1, 1964, there were 5 inches of sand cover. He stated that in his opinion the change in cover was due to the movement of the pipe joints, and that there was movement of the sand due to the currents of the water in the swimming area. He fixed the location of the reducer as being 55 feet west of the water's edge, 15 1/2 feet from the safety rope, and approximately 1.2 feet north of the south door of the ...