Friesland v. City of Litchfield

Citation164 N.E.2d 606,24 Ill.App.2d 390
Decision Date18 February 1960
Docket NumberGen. No. 10273
PartiesGeorge FRIESLAND, Plaintiff-Appellee, v. CITY OF LITCHFIELD, Illinois, a municipal corporation, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Frank W. Cooper, City Atty., Litchfield (D. R. Kinder, Litchfield, of counsel), for appellant.

H. B. Tunnell, Litchfield, for appellee.

REYNOLDS, Presiding Justice.

This is a damage suit by the plaintiff against the defendant City of Litchfield, claiming loss of livestock and other damages, by reason of the city permitting untreated or improperly treated sewage to flow into a creek that flowed through the farm of the plaintiff, thereby poisoning his cattle. The plaintiff George Friesland, from September 25, 1955 to February 28, 1958, under a lease, farmed some 135 acres of land near the City of Litchfield. About 35 acres of the farm was in pasture and a creek passed through the southwest corner of this pasture, coming in from the west side and running in an easterly direction through the pasture for about one quarter of a mile. The creek began as a ditch near Illinois Avenue in the City of Litchfield, and ran along and past the sewage disposal plant of the city, prior to entereing the pasture. There was an interceptor sewer of the City which ran from the main outfall of the city sewers to the disposal plant. This interceptor sewer ran through and alongside the ditch. After moving on the farm, some time in December 1955 or early 1956, some of the plaintiff's cattle became ill, and their symptoms were diagnosed as that of scours or diarrhea and off their feed. Eight cows and twelve calves of the plaintiff died while he was on the farm in question, and he was forced to sell three other head because of their condition. In addition he was refused sale of his milk because of odor. Whether this condition of the milk was the result of the water in the creek is questioned and disputed. City water was available to the plaintiff for the use of his cows, except for some short periods. However, at all times, the cows in the 35 acre pasture could drink from the creek. Sometime in 1956, a break occurred in the interceptor sewer, letting raw sewage escape into the creek. During 1956 and 1957 the plaintiff observed oil on the water of the creek and solid particles of raw sewage in the water. At other times the water in the creek was cloudy. There was a definite odor. A sanitary engineer for the State of Illinois Health Department, in May 1957, found raw sewage escaping into the ditch and from it into the creek from a break in the interceptor sewer. The plaintiff testified that he complained to the Mayor and the City Council of the City of Litchfield about the condition of the water in the creek, in April 1956, and was promised that the city council would do something about it, but did not do so. The plaintiff also claims that the city council promised him free water, but the records of the proceedings of the council do not bear out this claim.

Trial was had in the City Court of the City of Litchfield before a jury. The jury returned a verdict for the plaintiff in the amount of $3,000. Upon motion by the defendant, the court entered a remittitur in the amount of $350, which was consented to by the plaintiff. The appeal is taken from the balance of the judgment entered by the court.

The first point urged by the defendant city is that the court erred in refusing to direct a verdict for the defendant at the close of the plaintiff's evidence, at the close of all the evidence, and also erred in overruling defendant's motion for judgment notwithstanding the verdict. This contention in effect, raises three separate question, but since the law governing all of them is essentially the same, they will be considered as one question. Our courts have held that the same rules in deciding a motion for a judgment notwithstanding the verdict, are to be used in passing upon a motion for a directed verdict. Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855; Merlo v. Public Service Company of Northern Illinois, 381 Ill. 300, 45 N.E.2d 665. The question presented by either motion is whether there is any evidence fairly tending to prove the cause of action alleged, or fact affirmed, and the court does not, on such motion, weigh the evidence or consider its preponderance. Todd v. S. S. Kresge Co., 384 Ill. 524, 52 N.E.2d 206; Blumb v. Getz, 366 Ill. 273, 8 N.E.2d 620; Peters v. Peters, 376 Ill. 237, 33 N.E.2d 425. No contradictory evidence, or other evidence of any kind or character, will justify a directed verdict or a judgment for the defendant notwithstanding the verdict, except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense. Merlo v. Public Service Company of Northern Illinois, 381 Ill. 300, 45 N.E.2d 665. The party resisting such a motion is entitled to all the benefits of all the evidence favorable to him. Tidholm v. Tidholm, 391 Ill. 19, 62 N.E.2d 473.

The rule of law to be applied, in determining whether a trial court should have directed a verdict for the defendant, is clear. A motion for a directed verdict should be allowed if, when all evidence is considered, with all reasonable inferences to be drawn therefrom in its aspects most favorable to the party against whom the motion is directed, there is a total failure to prove one or more essential elements in the case. Tucker v. New York C. & St. L. R. Co., 12 Ill.2d 532, 147 N.E.2d 376; Mitchell v. Van Scoyk, 1 Ill.2d 160, 115 N.E.2d 226; Parrucci v. Kruse, 12 Ill.App.2d 30, 138 N.E.2d 91. This court, as a reviewing court, considers only the narrow question, whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. If there is any such evidence, the motions were properly denied.

In applying the law of Illinois as to such motions we must consider the evidence. It is not disputed that the interceptor sewer of the city crossed and ran alongside the ditch which became the creek through the pasture of the plaintiff. It is not disputed that a break occurred in the interceptor sewer and that raw sewage was found in the waters of the creek. It is not disputed that the city had notice of the condition of the water in the creek, and it is not disputed that, from some cause, the cattle of the plaintiff died. All of these matters of evidence raise questions of fact for the jury to determine. All of them present evidence from which reasonable inferences can be drawn to support the essential elements of the plaintiff's case. It may well be, that upon consideration of the whole case, the evidence produced or lack of evidence, the preponderance or weight required of the plaintiff is not present, but that question is not raised by such motions. If there was any evidence, considered with all reasonable inferences to be drawn therefrom, that would support the plaintiff's case, the motions...

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  • Wade v. City of Chicago Heights, 1-90-0467
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    ...413 N.E.2d 1345; Reynolds v. American Oil Co. (1975), 32 Ill.App.3d 905, 912, 337 N.E.2d 403; Friesland v. City of Litchfield (1960), 24 Ill.App.2d 390, 395, 164 N.E.2d 606.) Judgment notwithstanding Page 1304 [159 Ill.Dec. 244] the verdict is improper where reasonable minds may differ as t......
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