Appeal from the Circuit Court of Cook County; the Hon. B. FAIN
TUCKER, Judge, presiding. Reversed and remanded.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 19, 1969.
Donald Gibson, a minor, by Norman Gibson, his father and next friend, sued the defendants, Healy Brothers and Company, a corporation, the Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation and Thomas B. Healy and Michael S. Healy, doing business under the firm name and style of Healy Brothers and Company, to recover damages for personal injuries. Healy Brothers and Company, a corporation, was dismissed as a party defendant. The jury rendered a verdict in favor of plaintiff and awarded damages in the sum of $250,000 against all the remaining defendants. On appeal they contend: (a) The trial court erred in denying defendants' motions for directed verdict and judgment notwithstanding the verdict since there was no evidence that defendant violated any duty owed plaintiff or that defendants proximately caused plaintiff's injury; and further that plaintiff was contributorily negligent as a matter of law; (b) The trial court erred in denying defendants' motion for a new trial because the trial court erred in instructing the jury; plaintiff's expert witness was not competent; hypothetical questions were based on facts not in evidence; and the verdict was excessive.
The following evidence was adduced at the trial by plaintiff. Healy Brothers and the Sanitary District contracted for the construction of an intercepting sewer tunnel. A portion of the work necessitated the construction of a manhole being brought up from the tunnel to the street level at a site on Ballard Road just east of Maryland Street in Maine Township, an unincorporated area in Cook County, Illinois.
Ballard Road was an asphalt road two lanes wide and ran generally east and west. It was about thirty feet wide and had dirt shoulders. There were no sidewalks or streetlights in the area.
The manhole identified as Shaft No. 18 was located at the north shoulder of Ballard Road and was about seventy-eight feet deep. The shaft was dug out by air spades and hand laborers. Dirt and debris from the excavation were placed in muck boxes and a crane was used to lift the boxes from the shaft. The dirt and debris were then loaded into trucks and hauled away.
Immediately west of the shaft was a large mound of dirt and various equipment. Lighted flare pots were placed around the equipment, excavation and pile of dirt. The flare pots were placed in about the center of Ballard Road on the south side of the excavation, equipment and pile of dirt. They were burning at the time of the accident. A large sign was erected east of the excavation site, that read "DANGER" in large letters.
The fire or flare pots were the usual type and used No. 2 fuel oil which is drawn up a wick where it would vaporize and thus allow burning. The flame would be within less than a two-inch diameter around the four openings in the top of the flare pot. These pots were weighted on the bottom so that they would not tip over unless tipped beyond 60 degrees.
The work on the sewer construction had been in progress since the early part of 1958 and this accident occurred near the site of Shaft No. 18 on the evening of January 15, 1959. The evidence revealed that between January 1st and 15th, 1959, the surface of Ballard Road was muddy and sloppy to a depth of about 3/8 of an inch and during freezing weather the surface of Ballard Road would become rough and uneven.
On the day of the occurrence, plaintiff was fifteen years of age, five foot, eight or nine, and weighed 150 pounds, and was well aware of the excavation site area, having played around it on numerous occasions with his brother. There was snow on the ground and the average temperature was eighteen degrees with a wind velocity of 24.2 mph and gusts up to 32 mph. While going to school that day, plaintiff observed the construction site was rather rough, that there was a lot of dirt on the road and that the flare pots were placed in position.
Prior to the accident, plaintiff was walking west on the south side of Ballard Road alone and had in his possession a flashlight which he did not use. It was between the hours of 6 and 7 p.m. and he was out to see the condition of the ice pond that was located near the construction site off Ballard Road. There was deep snow and ice on the far south side of the road caused by plowing of snow on Ballard Road. He crossed over to the north side of Ballard Road, continued to proceed west toward the danger sign and the excavation area. As he approached the danger sign, he noticed the road was rough with mounds of dirt and was slippery so he crossed to the middle of Ballard Road. Plaintiff observed that dirt and debris extended from the equipment out into the highway where trucks had worn it smooth.
He passed within one foot to eight inches of the first flare pot. These flare pots were set out in the center of Ballard Road. When he walked another 15 or 20 feet he came abreast of another flare pot and he was six inches away from it when he slipped on the dirt and debris, and fell sideways ending up with the flare pot between his legs. The flare pot was overturned on his clothing when he tried to scramble away from it. Plaintiff observed his lower pant legs were on fire. He tried to beat out the flames with his bare hands and finally ran to the nearby field and rolled in small ice ponds to extinguish the flames. He could not remember too much about walking home, but recalls that his coat was still smouldering and he again had to beat the flames with his bare hands.
Evidence was also introduced as to plaintiff's injuries and damages. The defendants chose not to introduce any evidence and they rested their case at the close of plaintiff's case.
Defendants' first contention is that the trial court erred in denying defendants' motions for a directed verdict and judgment notwithstanding the verdict since there was no evidence that defendant violated any duty owed plaintiff or that defendants proximately caused plaintiff's injury; and further that plaintiff was contributorily negligent as a matter of law.
[1-3] This contention must be reviewed in the context of Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967) at page 510:
"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."
See also Bernier v. Skripek, 86 Ill. App.2d 118, 126-127, 229 N.E.2d 890 (1967).
Defendants argue that they were not negligent in causing dirt and clay to accumulate on Ballard Road to form an uneven, rippling surface; since construction was still in progress a certain amount of dirt near the excavation was to be expected, but even if they were negligent the defect present at the scene was trivial. Further, that it was not foreseeable that plaintiff would walk where he did, nor was it foreseeable that the rippled condition caused by the mud, snow and ice would result in plaintiff's injuries. Defendants contend there was neither evidence of negligence on their part in the performance of the work at the construction site nor evidence of any act committed on their part that was the proximate cause of plaintiff's injuries. Defendants allege they had a duty to exercise only ordinary care in the ...