William Burke v. State of Illinois

[*380] This is a claim for severe injuries sustained by the claimant when he was an inmate at Menard Penitentiary. l he complaint, stated in three separate counts, contends that claimant’s injuries were caused by respondent’s negligence; a violation of the Structural Work Act; and by respondent’s failure to provide claimant with timely and proper medical care and treatment after he was injured.

Claimant, in his testimony, gave a detailed account of the circiinistances and events before and after his injury which have a bearing on his claim. Respondent offered no rebuttal testimony but challenges the conclusions as to liability that may be drawn from claimant’s statement of the facts.

Claimant was a bricklayer by trade and had followed that occupation for over 17 years 1xior to his incarceration.

On October 22, 1963, while an inmate at Menard, claimant was ordered by the respondent to do certain tuck pointing and masonry work on the penitentiary wall. The wall was approximately 22 feet high. Although claimant had asked the officers in charge for a swinging scaffold, he was required to work on a plank suspended between two 20 ft. wooden ladders with inserted brackets to support the platform plank. Claimant described the wooden ladders as having been repaired with wire and protested to the guards that he did not believe they were safe. He again asked for a swinging scaffold which he said would go up fast and be safer for the workers. In claimant’s unrefuted testimony he quoted Sgt.

Kisro, one of the guards, as saying that the ladders were in; that claimant would have to use them and ordered him to do so.

While claimant was engaged in the directed work, another prisoner who was assigned to the same task came up one of the ladders and stepped onto the plank. As he did so , the supporting brackets gave way, causing the plank to [*381] tilt and the claimant to fall to the ground. Claimant suffered a compound fracture of the left leg. He saw the bone sticking out about three inches above the ankle.

Claimant’s unrefuted account of the medical care and treatment he received shortly after his fall, and for a long period of time thereafter, paints a vivid picture of intense pain and suffering.

Immediately after the accident, claimant lay on the ground for a short period of time before he was finally administered a shot requested for him by a Catholic priest.

About 10 minutes later, he was removed on a stretcher to the prison hospital. There his leg was set by Ilr. Miham and placed in a cast. No anesthesia was administered.

The leg became swollen and he ran a high temperature.

When the leg became very discolored, the cast u7as cut off, the leg was opened and drained without benefit of anesthesia.

For several months, the condition of his leg did not improve. It was constantly draining. ‘Three or four months after the original accident another doctor was called in for consultation. Claimant had requested an orthopedic surgeon shortly after the accident, but none was provided until after he was transferred to Stateville. There Dr. Duffy, an orthopedic surgeon from Joliet, was brought in to see him on April 23, 1964. One week later Dr. Duffy performed an operation on the leg, scraped and cleaned the bone, and put in a hose to keep it draining. There was further surgical procedure in November of 1964 when Dr. Iluffy performed a bone graft and put in a pin or a rod in the claimant’s leg.

In March of 1965, after claimant was paroled, he was transferred to Hines Hospital where he stayed for approximately three and one half to four weeks. From Hines he was transferred to Rockford Memorial Hospital where [*382] Dr. Sam Behr took over. Dr. Behr removed the cast which ,

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extended from the left hip down to the toes. The leg was still troubling the claimant, emitting a strong odor, and j started swelling again. After several months of therapy treatment, Dr. Behr performed a final operation and removed the pins in August of 1965. I

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Respondent, in a well presented brief, has analyzed claimant’s testimony and bases its conclusion, that liability I should be denied, on four theories: 1. Respondent did not know and, in the exercise of reasonable care, could not have known that the rungs would pull out from the ladder at the time in question. 2. Respondent was not guilty of a ‘‘willful”violation of the Structural Work Act. 3. Respondent exercised reasonable care in providing medical treatment for claimant’s injuries. 4. Claimant did not carry his duty of proof by the preponderance of the evidence.

The Court finds that the facts do not support respondent’s first theory. It need not have been foreseeable that “the rungs would pull out from the ladder at the time in question”. We hold that, if the respondent had exercised reasonable care for claimant’s safety, it could have determined that the ladders used were unsafe as claimant had warned, particularly for two men, a plank, and the weight of the working materials. Claimant was a man with long experience in the type of work he was required to do for the respondent, knew the dangers and hazards of such work, and the type of equipment needed to protect the workman. Yet respondent did not heed claimant’s professional opinion and warning that the ladders were not safe and refused his request for a scaffold which he deemed proper. In the absence of any contradictory evidence, we [*383] also a c * c q ) t c.laiiixtnt’s stittctilcnt that Captain Fry, a prison caiirl)lo>w.. ;icltiiitt<d to thc claimant that the ladders had b c v . i i c ~ ) n t l ( t~1 i1 1 c ~ l a 1 1 d s h d < l not have>bee11 \lsed.

We find that the facts in this case support a finding of actionable negligence by the respondent.

The record also clearly shows that claimant could not be found guilty of any contributory negligence. The deEenses of assumption of risk and contributory- negligence are often properly available to the respondent in actions brought by a convict, but certainly not under the facts in this case. The rule is vl7elI stated in Moore vs. State, 21 C.C.R. 282, p. 290: “Claimant, as a convict, was rrqiiirccl to take (irclrrs. nncl carry thcni orit. To refuse to do so wonld subject hiin to disciplinary action, and the forfeiture of his limited privileges, including I x o t n p t consid(~ationfor parol(,. Thus, he tlitl not occupy a position of independencc, which a person outsitla a penitentiary occupies.

His choice of action being limitccl, he, thcwfore, kept silrnt and did as he \vas ordered. In fact, he did not possrss, under the circnlristances in this case, the freedom of choice inherent in thv tloctrincs of :issnnicd risk and contributory negligence.”

Respondent undertakes to distinguish Moore from the case at bar. The facts are different, but the rilles of law stated in Moore are applicable here.

Waving determined that claimant is entitled to an award for his injuries, we need not discuss the conflicting arguments presented by the parties concerning the Structural Work Act. Nor do we need to elaborate on the question as to whether respondent exercised reasonable care in providing medical treatment for claimant’s injuries. Suffice it to say that claimant’s injuries are serious and permanent, according to the testimony of Dr. Rehr. The appearance of claimant’s leg, which the Court s a ~ 7when he appeared before us on his crutches, left no doubt in our mind as to the accuracy of Dr. Behr’s conclusion and prognosis.

Dr. Behr stated that claimant has permanently lost ap[*384]proximately 50%of thcx use of his left leg and can do no work that reqiiires the use of that leg. He can walk with the use of crutches but can no longer work at his former trade of bricklayer and stone mason. Claimant was 36 years old, bodily sound, and in good health at the time he sustained his permanent injuries.

Clainiant is hereby awarded damages in the amount of $w,ooo.oo.

(No. 5494-CIaitiia1it : c n w t l t d $20,000.00.)

GERALD T. KOEHLER, Claimant, us. STATE OF ILLINOIS, Respondent.

Opinioti filed April 18, 1972.

RAY H . FREEARK, Attorney for Claimant.

WILLIAM J. SCOTT, Attorney General; WILLIAME.

WEnnER, Assistant Attorney General, for Respondent.

HIGHWAYS-acctrfnrrlntioti of icc. \\'hut. it \WIS rc;ison:rbly forcwc~;~hle th;rt roadway would hecome icy, tlw feilrirc~of rcq)ontl(.iit to erect signs, harricadcs, or other warnings, was negligent.

PERLIN, C.J .

Claimant seeks recovery of $25,000 for injuries suffered on December 22, 1967, as a result of a motor vehiclc accident.

Claimant contends that the accident was the result of respondent's negligence in permitting flood water to cover U.S. Route 50 at a point where it crosses Silver Creek; negligently failing to apply salt to prevent the flood water from freezing; failing to prevent the water escaping from Silver Creek onto the highway; feiling to make inspections; failing to warn the plaintiff of the icy condition on the highway; failing to detour traffic around the alleged dangerous condition; and failing to close the highway.

Claimant testified that he was a teacher and basketball [*212] iiim~oitlabl!~ s\\.en.ed to the right: that claimants’ auto had I i c w in a pliicc of safet!. liehind the snowplow; that there \\-vrc\variiing lights on the truck; that claimant left the area of safctJ- mid tried to pass the s n o w l h v truck on an unclc~arcd path \\.ithoiit giling sufficient clearance to pass respondent’s vehicle; and that the driver of claimants’ car was contributorilj, negligent.

The respondent further charges that the passengers, \ l a r k Ri\.oltorto and Yolanda Komanazzi, \rere guilt). of contribiitor!. negligence because the). allowed themselves to lic pl~iccdin ;i condition of danger and did nothing to rctliicc) or correct the danger, such as asking the dri1Ter of their a r i to to stn!- in the cleared path behind the sno\vplo\v or to mmitl passing the truck too closel!,. \\'hilt> the \\.itnesses \yere not in agreement as to \i.hethcr the sno\\.plo\v blade suddenlj, fell in front of claiinants‘ car or whether the truck skidded in front of claiiii~unts’ car. it n m i i l d appear that respondent n’as n c.g 1i gtw t . ‘I’herc. \\.as no e\.iclence that clainiant was contributori1). ncgligent in passing the sno\vplo\v b!. traveling in the iiiitldlc lane or not swxm-ing into the third lane. \\’eather conditions \ i - ( wnot too tlangeroiis to permit driving on the c>sprc.ss\\-a!.. as e\-itlenced froin the testinion). n~hichestalilislwd lieu\.>.traffic iisiiig the road at the time of the accitlcw t. -.

I hc. claiiiiant citcs the similar case of Hargraoe \?s.

S t ( / / ( , . 24 (:.(:.I<. 46’3. 467, in \\-hich the court stated: “ I l t * s l ) o i i d ( w t t,l;iiiii\ t h t thi\ \ \ ;i\ ; in i i i i a \ ~ o i d ; i l > l caccidrnt. It is tlic o 1 ) i i i i o i i of tlir C ; o i i r t tli;it ( lit . t l o c , t r i i it , ot r e \ i l ) \ ; i I o ( i i i it 1 i r is p r o p ( d > . applied in thca c~ist’ :it II;IIKI. \incc. it 1)roIx’i-C“Y* Iiiitl h * w i i i \ ( d . ti s i i o \ ~ y l o ~fraiiie v tlocxs not o r d i i i : i r i l \ . fall o t f ;i triick c;iii\iiic th. triick t o c o i i i ( ~to ;I r i i t l t l t w \top.” rl’lic, tloc.tl-iii(. of ITS i1)s:i lo(lriitiil- has been definetl as f c )llo\\~s: [*385] coach at Althoff High School in Belleville on the date of the accident and at the time of the hearing; that he drove from Belleville to a school game at Breese by way of Route 50, having left Belleville about 6:00 p.m. The eastbound lane of the road was dry and in good condition. Claimant followed the same route back to Belleville about 9:30 p.m. The weather was clear, and he was going fifty to fifty-five miles

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per hour (the speed limit was 65 miles per hour) when the car started to spin. He then blacked out and woke up in the car. He had no previous warning of slickness or icy conditions prior to spinning and sliding and the accident occurred at a level stretch of road. Prior to the accident, he enjoyed good health. Injuries included having his spleen removed, a damaged liver and heart, an injured kidney, ti hole knocked in the orbit of the eye and a broken bone below the left eye.

Claimant further testified that he was confined in the

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hospital from the date of the accident until January 29, I 1968, with a second confinement for an operation to the orbit of his left eye. He lost weight and at the time of the

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hearing in 1968, was still unable to work a full day or play tennis or basketball, activities he had previoiisly enjoyed. I State Trooper John R . Mayer, who investigated the accident, testified that he arrived at the scene about 1025 p.m. He observed that there was rain or water that had I come up on the highway in the eastbound lane and that it was freezing, causing slick conditions. TIe further testified that there were both water and ice on the westbound lane and that after he arrived on the scene, another car swerved off the road at that point. His investigation showed that the Mustang car driven by claimant apparently lost control and came across into the eastbound lane where it was struck in I the side by a 1966 Chevrolet pickup truck. There was a low spot on the road where the water came up. There [*386] was no rain at the time of the occurrence. After the witness completed his investigation, he called the highway department to cinder and salt the highway and put a low spot warning that there was ice on the road. The following day, the road was closed for high water and traffic was rerouted. At the time of the accident, there were no barricades, signs, cinders, or salt on the road.

Leon Streif, who operated a garage and wrecking service, was called to the scene of the accident. Road conditions were “a sheet of ice,” but it was not raining at the time of the accident. He had seen water over the road 011 other occasions, but he had not seen icy conditions. He testified that during the five previous years, water had been on the road after a heavy rain because of Silver Creek “obstruction or congestion.” He remembered floods closing the road at the point in question in 1951 and 1954, and that within five years there had been water on the road on several occasions.

Michael Pier, a student, testified that on the date of the accident, he was driving along Route 50 at the point in question between 8:OO and 8:3O p.m. and noticed the water was high and almost on the road and was up to the side of the pavement. He came home on the highway about 9:OO and slowed down because the road was becoming slick. He had seen water on the road before. He had also, on occasion, seen the highway barricaded when water was on the road.

Charles Gray testified that he was a member of the volunteer fire department for Lebanon and was called to the accident between PO and 11 p m . The creek was on the verge of going over the road. He remembered that 1958 was a time of a big flood. He stated that there is usually a small amount of water which collects after a rain at several [*387] spots. He did not remember if the creek had gone over the road in the last five years.

William Pfeffer, a farmer, testified that part of his farm is between Silver Creek and the channel. He has seen water from Silver Creek overflow at the banks at Highway 50 many times, although he could mot give the dates. Water would come up to the edge of the concrete and the wind would cause it to splash over the road.

Another farmer in the area, Terry Ylah, testified that Silver Creek has overflown its hank and gone up on the pavement at Route 50 about 3 or 4 times during the past five years.

Witnesses for respondent incliided thc following:

Edward Jankowski, Assistance District Maintenance

Engineer of the area in question, a job which he had held since April, 1967, who testified that between December 20- 21,1967, there were 3.35 inches of rain and a trace of rain on December 22, 1967. He did not knou7 of Silver Creek overflowing its banks between 1961 and the date of the accident.

George Huhman, civil engineer with the Division of Highways testified that he inspects highways and oversees twenty-three maintenance sections. On the day of the accident, he encountered flooding at another point and spent most of the day there. He had passed through Silver Creek at 7:OO a.m. and 4 3 0 p.m. that day, but coiild not see too much because of darkness. He had come into the maintenance section in October and was not familiar with the Silver Creek bottom area. He was called to the scene of the accident where he observed ice and water completely across the road. On the day in question, there were floods throughout the area and the maintenance personnel were so [*388] concerned about other areas that they “weren’t hardly paying any attention to Silver Creek.” Mr. Huhrnan explained that the Silver Creek bottom area is a large, flat, marshy area and that whenever Silver Creek is high, it overflows into the area and causes a backup area in the bottom. Mr.

Huhman further testified that there is a low place along Silver Creek “where the road has a tendency to collect water after a heavy rain.”

Walter Dawson, a section man for the State Highway Department, testified that he was familiar with the water in the Silver Creek area, and that he has known water to come over Silver Creek in 1961 or 1962. He m7as called to the scene of the accident where he put salt on the pavement and noticed about six inches of water on a small strip of pavement. On the afternoon of the accident, he had looked at a red flag he had placed along the water edge to see what the water level was and he had “Water on Pavement” signs with him, but did not put any at that place.

Another section helper, Ralph George Herman, testified that he passed through the Silver Creek area about 8:45 p.ni. the cavcning of the accident and the highway condition looked normal, but noticed water on the highway upon his return at the scene of the accident. He stated that he had worked for the Highway Department since 1963, and that this was the first time he had seen water on the highway.

Joe Madura, also a Highm7ay Ilepartment worker testified that he noticed that the water level had risen during the day of the accident, but the workers did not put up any signs, although they did put up a stake.

Respondent contends that there was no verified flooding since 1961 and that not one witness testified that he had ever seen ice on the pavement due to flooding, therefore the State had no reason to believe that water would encroach upon the highway or if it did, that it would [*389] constitute any more than a nuisance. “Keasonable care,” according to respondent would not appear to include having to anticipate simultaneous circumstances of encroachment and freezing, when encroachment was very rare and encroachment and freezing combined was never known to have occurred before. Respondent also suggests that claimant did not use due care, although no evidence was introduced to support that allegation. The Court fails to understand why no apparent effort was made toward this end to obtain the testimony of Vernon Coleman, the driver of the pickup truck which collided with claimant’s automobile.

No one disputed that there were no barricades or warning signs advising the public of the condition of Silver Creek, nor that there was a history of water upon the road at the spot in question, due to the overflow conditions of Silver Creek.

The instant case is similar to the following Court of Claims cases: in Caw vs. State, No . 4901, the respondent was held negligent for failing to take precautions where an unusual accumulation of ice existed on the highway and the surrounding area was dry. In Bovey vs. State, 22 C.C.K. 95, the respondent was held liable for an accident which occurred on an icy bridge, although it had taken precautions to help alleviate conditions and posted a “Bridge Slippery When Wet-Frosty” sign, because its precautions were inadequate to remedy the situation. The bridge was subject to freezing when there was no evidence of ice, snow, or extremely cold weather in the surrounding area . . . “thus creating a trap for the unwary traveler.” (p. 111)The court cited other cases which involved traps created by unexpected icy areas.

Although the area in question may never have heconie icy in the past when there was water on it, it was reasonably [*390] foreseeable that it would become icy and hazardous when the temperature dropped below freezing after the amount of rainfall it sustained. The failure of respondent to erect signs, barricades, or other warnings of the “trap” was negligent and was the proximate cause of claiinaut’s accident.

Claimant’s physician, John S. Hipskind, testified that claiiiiant suffered interabdominal hemorrhage, a lacerated spleen, which was removed, and a lacerated liver, as well as pneumothorax of the left lung. He testified that there would be residual effects because of loss of the spleen and that there could be a problem with regard to the lung, which would take surgical procedure to correct.

Dr. Lorenzo P. Maun testified that he perforrned plastic surgery on claimant to correct the eye receding into the skull. The doctor stated that claimant would need additional surgery to correct the condition if it recurred and that he has a residiial disability causing a sinus problem and numbness on one side of the face. That surgery was performed on April 10, 1968.

Claimant has incurred substantial damages and medical fees, and is entitled to recover therefor. A total award in the amount of $20,000.00 is hereby made in this case, payable as follows: Gerald 1’.Korhlcr ........................................ $ 8,229.03 Althoff Catholic lligh School and the Maryland Casualty Company, as subrogees ................ 11.77’0.97 (No. S54-Claiiiunt a\wrded !fi7.500.00.)

SEBRONBEARD, Claimant, V S . STATE OF ILLINOIS, Hespondent.

Opinion filed April 18, 1972.

GLENN C. FOWLKES, Attorneys for Claimant.

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W ILLIAM J. SCOTT, Attorney General; SAUL R. WEXLER, Assistant Attorney General, for Respondent.

PRISONERS A N D I N h i A T F s - ~ r o f l ~ ; f r r lincarceration. Where claimant has niadr a prima facie casr that he is innocent of murder, and proved his cast’ by :I preponderanrc only hecaiiw his was the only evidence, the court would be forced to grant an award.

RURKS, J. For time unjustly served in prison, according to the complaint in this action, the claimant asks payment of damages from the State of Illinois pursuant to the provisions of Ch. 37, Sec. 439.8(c), Ill.Rev.Stat., 1971, which confers upon this Court exclusive jurisdiction to hear and determine: (c) All claim against the State for time unjustly served in prisons of this State where the persons iinprisoned prove their innocence of the crime for which they were iinprisoned; provided, the court shall make no award in cxccss of the following amounts: for iinprisonment of 5 years or less, not more than $15,000; for iniprisonnic.nt of 14 years or less brit over 5 years, not more than $30,000;for iniprisonnient of ovvr 14 years, not more than $35,OOO; and provided fiirthrr, thr court shall fix attorney’s fees not to exceed 25%of the award grantrtl.

The claimant, Sebron Beard, was arrested in the City of Chicago on February 24, 1961, charged with and indicted for the murder of one Herbert Holmes. l’he case was tried before a jury in the Criminal Court of Cook County. The jury rendered a verdict finding the defendent guilty. His motions for a mistrial, for a directed verdict, for a new trial, and in arrest of judgment were overruled by this trial court. Judgment was entered on the verdict and Beard was sentenced to a term of 50 years in the State penitentiary.

About 5 years later, on January 21, 1966, the Appellate Court of Illinois reversed the judgment of the Circuit Court of Cook County and remanded the case for a new trial. (People vs. Beard, 67 Ill.App.2d 83; 214 N.E. 2d 577). l’he matter was again placed on the docket of the Criminal Division of the Circuit Court of Cook County for [*392] trial. At the new trial the People did not present any evidence against Beard. No witnesses were called to testify.

On Beard’s motion, an order was entered by the Court discharging him on July 25, 1966.

From February 24, 1961, the date of his arrest, until July 25, 1966, the date of his final discharge, claiiiiant spent a total of five years and five months in custody in the Illinois State Penitentiary and’the Cook County Jail.

The key question before this Court is whether the claimant, Sebron Beard, has proved that he was innocent of the crime for which he was imprisoned. This Court has consistently held that Illinois Statute, cited above, makes it clear in plain language that such proof of innocence is a condition precedent to any recovery of damages under 11- linois l a ~ .

This Court in Jonnia Dirkans vs. State of Illinois, 25 C.C.R. 343 (1965) was called upon for the first time to interpret the then comparatively new $439.8(c)in the Illinois Court Claims Act, which the Legislature had added to this Court’s jurisdiction in 1958, the subsection under which this claim is brought. Our opinion in Dirkans dealt in depth with the intent and meaning of the said subsection and particularly with the words, “Where the persons imprisoned prove their innocence of the crime for which they were imprisoned”. Dirkans held, inter alia, that said language, which is unique in the Illinois law, means that a claimant filing under this subsection must prove affirmatively in this Court, by a preponderance of the evidence, that clainiant was innocent of the “fact” of the crime for which he was convicted.

To hold otherwise would distort the clearly expressed intent of the legislature and open the treasury of Illinois to a flood of claims that were never contemplated by this subsection (c).

[*393] Consistent with the Dirkans decision, supra, which has been cited and reaffirmed many times by this Court, we would merely add a principal of law that is long and well established in this state, namely, “Statutes in derogation of the common law must be strictly construed.” Z.L.P. Statutes $176.

To make a fair determination and judgment of the evidence submitted by the claimant to this Court as proof of innocence, it is necessary to review briefly the conflicting evidence submitted at the original trial.

Evidence in the trial court on behalf of the people was as follows: the decedent, Herbert Holmes, was employed part-time as a bartender at the Anchor Inn Tavern in Chicago. The proprietor of that establishment refused to serve defendant Beard further at about 10:30 or 11:OO p.m. on February 24,1961. Beard - - - left the -_ .< premises , s and returned - 1 almost immediately. The decedent, Holmes, went up to Beard, talked with him for two or three minutes, then escorted him out of the tavern. Ten or fifteen minutes later a gun went off, and Holmes was dead. The People’s key witness, Jearlean Rubio, testified that she had seen the two men “tussle” with each other in front of the Anchor Inn; that Beard pushed Holmes onto the hood of an automobile, and that Beard then came up with a gun. Mrs. Rubio turned her head away and then heard the gun go off three times. When she looked back, Beard was standing over Holmes and was holding the gun in his hand. Holmes staggered onto the street before collapsing and dying. The police arrived about fifteen minutes later, arrested the defendant, and charged him with murder. The police took a gun which the defendant was holding in his hand.

The defendant (claimant before this Court) took the stand in his own behalf and testified that when the decedent pushed him out of the door, the claimant asked [*394] Holmes if he was crazy. Thereupon, Holmes kicked him.

Beard started to grab him, and Holmes came up with this gun. The claimant then grabbed for the gun and the two men started tussling over it. During the struggle the gun went off, and Holmes toppled over dead.

The claimant Beard, also testified that the gun was not his, nor did he have it on his person prior to the tussle. H!. the testimony an issue m7as raised as to whether or not the gun belonged to the decedent and as to whether or not it was discharged while the defendant and the decedent were struggling for its possession.

In the Appellate Court, the claimant, Sebron Heard, successfully argued that many alleged errors were committed in the trial court; among others, that the court erred in admitting into evidence People’s Exhibit One-a revolver; in restricting the cross-esamination of the State’s principal witness; in ruling that the defendant’s request addressed to the’Assistant State’s Attorney for statements of witnesses taken before trial would be refused unless the request was-made in the presence of the jur).; and in pre\witing the defendant from having a fair trial because of the prejudicial conduct and remarks of both the trial judge and the Assistant State’s Attorney.

The Appellate Coiirt, after agreeing with se\.eral of Beard’s specific. charges of errors at his trial, concludc~l: “It -is iinnecessar\. to dn~ellupon the man). claiiiis of defendant that he did not receive a fair trial because of the tactics of the State’s Attorne!, and the rulings and Coiniiients of the trial judge during the trial. There were endless objcctions to the form of questions anel to the ansif7ei-s niaelc. 7 - I here \\.ere countless interruptions and continual bickeriiig. j5.c hope. that this jvill not be repeatctl \\,hen the case is retricd. Thc jridgment of the Circllit Court of Cook C h i n t ! . is r w x w d and the case is reiiiandetl.”

[*395] Appareii tl!. there \\.as no bickering ilt the claimant’s new trial in the Circuit Court of Cook County as the People offered no e\-idence against Reartl and he \\’as discharged.

There is no explanation in the record as to \vh!- the State’s ke!? witness, Jlrs. Jearlean Rubio, \vas not called b!. the State at Heard’s second trial since her testiiiion). hac1 tindoubtedl\- carried \\.eight with the jiir!. in seciiriiig claimant’s original con\~iction.T he record shot1.s that JIrs. Hubio died in Chicago on August 7 , 1968, nearl!. two years after Beard’s second trial and shortly after lie filed his case iii the Court of Clailiis. Circiinistantial e\-iclencc.. supported b!. the record, suggests a iiioti1.e and the probiibilit!. that llrs.

Rubio ga1.e perjured testinion!. at the claiinant’s original trial and, therefore, refused to appear at his second trial.

In claimant’s presentation of his case before this Court. he called as a \vitness, Stone\vall Rarksdale who conipletel!. denied all of the sti1teliieiits 111ade b,. the State’s ke!- witness, Jearlean Kubio, at Bcw-cl’s first trial. Harkschle testificcl that he \\-as in thc coin pan!^ of the silid Jearlean Riibio in The Rud\\.eiser ‘I’ii\.c>rii across the street all the time n-hile the fight behveen claiinant and the decedent was going on: that the!. kiie\\. nothing of thcx matter iintil the). heard the shots fired: that tt-hen the!. got out onto the strecht, Holiiies had alread!. been shot: that, coiitrar!. to Jearlean Riibio’s testinion!. in the origin:il trial, she had not seen the shooting or an!’ part of it.

Harksdale’s rebuttal of Jearlean Rubio’s testillion!- in the trial court, \vhile interesting!.is I?!. no liiciilis concliisi\-c> nor entirel!. r ~ ~ l ~ ~ \to ~ ithe l 1 i tessential issiie before this Court.

Rarksdale’s tcstinionj., which \\.e accept for such probiiti\-c value as it ma!. ha\xl, nierc4!- i 1 l ~ ~ ) t ~ ithe i c hcrec\ibilit!- ~ of the State’s ke!. \vitness and siipports the concliision that Beard did not rwci\,c. a fair trial in the Circtiit Coiirt. H t it that fact \\-as estiiblished l?!. thr. .41)l>clliitc> Cotirt’s orc1t.r [*396] reversing and remanding. In this Court, to sustain his claim for damages, it is incumbent upon the claimant to prove, by a preponderance of the evidence, that he is innocent of the crime for which he was imprisoned.

Confining ourselves to this issue and to the evidence submitted before this Court, we next consider a summary of claimant’s own testimony at the hearing before this Court.

The Anchor Inn was located on the northwest corner of Madison and Hermitage Streets in Chicago. On the northeast corner was located the other tavern known as The Budweiser. Claimant testified that he had spent the evening of February 24,1961, going from the one tavern to the other from 4:3O p.m. until approximately 1O:OO p.m. At about 1O:OO p.m., as claimant was leaving The Anchor Inn, the owner of the tavern told him “to get out; that he didn’t want my business.” As claimant was inquiring of him why he took this attitude, Herbert Holmes, the bartender, came up and struck claimant saying, “Get out of here. You heard what the man said. Get out of here. He don’t want your business.” Holmes then pushed claimant out the door of the tavern and closed the door. The door had a small glass pane in it and claimant tried to talk to Holmes through the glass.

Holmes opened the door and kicked claimant. The two men started to fight with each other. While they were struggling, Holmes reached back and pulled a pistol out of his right hip pocket.

Claimant said, “When I went to grab him, he upped with his pistol. I grabbed him and we began tussling; we were going around and around. The gun went off two or three times; somehow, I don’t know exactly how it happened, the gun twisted around and it went off and the bullet hit him in the shoulder and he began to weaken and he turned [*397] the gun loose to me and fell. I did not get the gun in my hand until after he was shot.” “I do not know which hand the deceased used to pull out his pistol; I grabbed the first hand I seen; I never did turn that hand loose; I do not know if he shifted the pistol from one hand to the other; if he did, I don’t know anything about it; I was holding onto the hand that had the pistol in it.”

As respondent points out in its brief, the only person alive when the hearing was held before this Court who could testify as to whether Holmes was murdered, died accidentally, or was killed hy the claimant in self defense, n7as the claimant. Naturally, as respondent contends, claimant’s statement must be viewed as likely to be self-serving. But, self-serving or not, claimant’s statement stands unimpeached before this Court. The respondent failed to offer any rebuttal testimony or any evidence of any kind before this Court. As stated in Gard, Illinois Evidence Manual, on page 661; “Where testimony is uncontr;tdictrd and is not i n h e r c ~ n t li~i i~~ p r o l ~ : i h Ior( ~ otherwise self-impeaching it I I I : I ~ not hc disrt~aartlrd.”

To this Court the claimant also presented Williarii Henry, Jr., an eye witness, who testified that while the struggle was going on he and his girl friend were sitting in the front seat of his car parked immediately east of the intersection on the north side of the street, facing west. They were parked in front of The Riidweiser Tavern and looking towards The Anchor Inn. lie stated that his view of the struggle was unobstructed and he w7as sufficiently close to the scene to watch it. He testified that the gun was at all times in Holmes’ hand iintil after Holmes was shot.

The testimony of this eye witness also stands unimpeached before this Court except for his iinswerving in[*398]sistence that the incident took place in the late afternoon rather than late at night. However, the witness Barksdalc testified that there was ample light from a Bud\\-eiser sign and a street light so that a person “could see good”. “You could see from one side of the street to the other”.

Barksdale said.

Respondent challenged the credibilit). of clainlant’s witnesses, \\~illiani Henr!., Jr. and Stoneuxll Harksclale. because neithqr of them had testified at the original trial of the claimant even though both of thein \\.ere accessible at the time. Respondent contends that this Coilrt, in the Dirkans case, announced the position that the production of a witness at a Court of Claims hearing who \\‘as accessible to the claimant at the criminal trial. but not called at that time to testif!., so impairs that witness’s credibilit3- as to inipeach him. \\’e do not find that the Dirkans case went that far nor stated respondent’s conclt~sionas an inflesible r i i k .

These circumstances are mere]!, factors which this Court will consider in assessing the credibilit!. of witnesses. as \\T did in questioning the credibility of the State’s kej. witness, Mrs. Rubio, who helped convict the clainiant at his original trial but was not presented b!. the State at his second trial although she \\-as accessible.

Finall!., respondent states in its brief, “If Heard has raised a doubt as to whether he coinrnitted niurder, it seems clear that he \\‘as guilt), of manslaughter”. This suggestion o\.erlooks the plain language of the statute which states that the claimant must prove on]!. that he is innocclnt of the crinie “for which he was i m p r i . s o n d . That crinie was murder, not nianslaughter or some lesser crime of xvhicli hc might well ha\-e been found guilt!. under the adniitted facts in this case. Ob\.iousl!z we cmnot :ippl~.a rule of strict construction to one part of the statute and placc~a liberal construction on another part of the saine sentencc.

[*399] I

It appears to us that, under the ordinary rules of evidence, claimant has made a prima facie case before this i Court that he is innocent of murder, the crime for which he was imprisoned. He has done so by a preponderance of the evidence. \\‘e are obliged to acknowledge claimant’s evidence as preponderant because his was the onlj? evidence presented at the hearings before this Court. \\’e realize that the task of obtaining competent evidence concerning a crime committed more than five years earlier is often extremelj? difficult. In this case the respondent apparently found the task impossible, as did the State’s Attorney of Cook County.

This Court takes no pleasure, under these circumstances, in granting an award for time “unjustly” served in prison when the admitted facts in this case would appear to justify a prison sentence had the claimant been charged with a lesser crime than that of murder. However, we must conclude that the time claimant served in prison for the crime of murder was time served for the wrong reason and was, therefore, technically, time unjustly served.

It is the judgment of this Court that claimant be awarded the sum of $7,500.00.

( So . 5SHX-Claiin denied.)

HAROLD HENRY STECE,Claimant, us. STATE OF ILLINOIS Respondent.

Opinion filed April 18, 1972.

GABRIELE AND NUDO,Attorney for Claimant.

WILLIAM J. SCOTT, Attorney General; SAUL K. \I’EXLER, Assistant Attorney General, for Respondent.

H~c~~‘A~s-rnmnitifcrtice of roudrcay. l o rty’m’er for tlamigr~sarising otit c 1 f a defect in the road\va!-, thc defect iiirist be sitbstantial mciugh. and it iiiiist exist for [*400]

I

400 I

such a length of time that reasonable persons would conclude that irnuwdiatc, repairs should be made, or warning signs posted.

HOLDERMAN, J .

In this case claimant is seeking to recover for personal injuries he received under the following circumstances.

On April 1, 1968, at about 2:OO a.m., claimant was operating his automobile in a northerly direction on and along Route 43 (commonly known as Oak Park Avenue), at or near 18020 South in the Village of Tinley Park, Cook County, Illinois; claimant testified his automobile struck a hole in the road as a result of which his automobile veered off the road, struck a concrete culvert or abutment, and as a result of the impact, sustained severe and permanent personal injuries.

Claimant testified that he was driving about 35 miles per hour. He stated that he saw the rut in the road and attempted to avoid hitting it but that in doing so, caught his right wheel in the rut and that this caused the car to veer to the right striking the cement abutment. As a result of injuries received, he was taken to South Suburban Hospital where he remained for 8.days. Several of his teeth were knocked out and the cuts he received required about 100 stitches.

The law involved in a case like this has been stated on many previous occasions. The State has the duty to maintain its highways in a safe condition or to warn traffic of the existence of unsafe conditions. Rickelman vs. State of 11- Zinois, 19 C.C.R. 54. Also, if the State has knowledge, either actual or constructive, of a dangerous condition on its highway and fails to warn the public of the danger, then it must respond in damages for injuries received as a result.

Bovey vs. State of Illinois, 22 C.C.R. 95, page 108. We have also held, however,’ that the State is not an insurer [*401] i 401 , against accidents on its highways. Bloom vs. State of Zllinois 22 C.C.R. 582. The law is the law of negligence and not the law of warranties.

The issues in cases where a member of the traveling public is injured as a result of a claimed defect in the highway are issues of fact to be determined by the Court.

In the case at hand, the claimant had the burden of proving that there was a defect in the highway, that the State had actual or constructive notice of the defect, and that claimant was free of contributory negligence.

The test of whether or not a fact has been proven is best set forth in Illinois Pattern Jury Instruction where it is said, in defining burden of proof: that this means “. . . . . . . .you must be persuaded, considering all the evidence in the case that the proposition on which (clainiant) has the burden of proof is more probably true than not true.”

Thus, there is room for reasonable doubt and still a fact has been proven. The crux of the definition is whether or not the evidence persuades the Court that the fact is more probably true than not.

In the case at hand, claimant described the hole in the road as being about two or three feet long, seven inches deep at its deepest point and about four inches deep on the edge. His observation was made while traveling and immediately before he hit the hole. The hole was on the righthand edge of the road. Clainiant testified that he had traveled over this road at least once a week for over a year and that approximately one month after the accident the hole had been repaired.

Two police officers of Tinley Park testified. One stated that he viewed the area for approxirnately 300 feet south of the scene and that he observed no chuck holes. The other [*402] police officer testified that on the morning of the accident that he too did not observe any chuck holes. Neither testified, however, that they were on the look out for defects in the highway.

In answer to this, however, claimant produced a photograph of the road at the approximate place at where the accident happened. The pictures showed definitely that a repair had been made to the highway at sometime. The pictures were taken in June of 1968, approximately two months after the accident.

The Court believes that it is more probably true that there was a hole in the road of some sort though not necessarily the size and shape stated by claimant. On this issue the claimant has met his burden of proof.

The claimant also was required to meet the burden of proving that the State had actual or constructive notice of such a defect. The record is silent as to any actual notice, and, therefore, the ultimate issue in the case at hand is whether or not there is sufficient evidence in the record to persuade the Court that the State had constructive notice oi‘ a defect which required fixing or of giving warning. The Court is of the opinion that claimant has failed to meet his burden of proof of this fact. While there is some evidence supporting claimant, it is believed that the evidence is insufficient.

The two police officers did not notice any hole in the pavement. No other person testified as to the presencc of the hole or of having any knowledge of the hole other than an attorney who at one time apparently had some interest in the case on behalf of the claimant. The attorneJr’s testimony was inconclusive in identifying the hole in the highway noticed by him as being the same hole that was involved in the claimant’s accident. The attorney’s testimony was weakened by the fact that he said there was no white line [*403] along the edge of the road. However, photos taken the day after the accident show clearly and plainly that there was a white line along the east side of the road. His observations were not accurate. The Court believes his testimony was too weak to be persuasive.

The Court therefore is of the opinion that the claimant has failed to prove by competent evidence that the alleged defect was of a nature to have been noticed by the State in ample time to repair or to post warnings.

It would be unreasonable for the State to be held liable for every possible defect in its highways.

There are unnumerable rough spots in public highways and such should be anticipated by motorists. Some defects are more unusual or are more glaring than others. These could well be the basis for requiring the State to respond in damages where they exist for such a time that it is reasonable to say that the State should have known of their existence.

The defect must be substantial enough, and it must exist for such a length of time that reasonable persons would conclude that immediate repairs should be made or warning signs posted. The traveling public must anticipate some defects. There is no absolute duty on the State, however, to discover and remedy all defects. Joyner vs.

State of Illinois, 22 C.C.R. 213.

It is evident that claimant has failed to prove his asserted cause of action by preponderance or greater weight of the evidence.

Award to claimant is hereby denied.