Marquardt v. Orlowski

• Decision Date: 16 June 1958
• Docket Number: 11113,Gen. Nos. 11112
• Citation: 67 A.L.R.2d 956,18 Ill.App.2d 135,151 N.E.2d 109
• Parties: , 67 A.L.R.2d 956 Jeannette MARQUARDT and Theodore Marquardt, Appellees, v. Anthony ORLOWSKI a/k/a Antone Orlowski, et al. (Louis Cernocky and Clara Cernocky d/b/a Fox River Picnic Grove, Appellants).
• Court: United States Appellate Court of Illinois

Page 109

151 N.E.2d 109

18 Ill.App.2d 135, 67 A.L.R.2d 956

Jeannette MARQUARDT and Theodore Marquardt, Appellees, v. Anthony ORLOWSKI a/k/a Antone Orlowski, et al. (Louis Cernocky and Clara Cernocky d/b/a Fox River Picnic Grove, Appellants).

Gen. Nos. 11112, 11113.

Appellate Court of Illinois, Second District, Second Division.

June 16, 1958.

Vogel & Vogel, Chicago, C. Russell Allen, Woodstock, for appellants.

Joslyn, Parker & Kell, Woodstock, for appellees.

SOLFISBURG, Justice.

These are appeals, consolidated by order of this Court, from two judgments entered in favor of plaintiffs, Jeannette Marquardt and Theodore Marquardt, upon a verdict of a jury in the Circuit Court of McHenry County, Illinois. The verdict and judgment entered in favor of plaintiff, Jeannette Marquardt, was in the sum of Sixty Thousand Dollars ($60,000) for a loss of a leg, which was sustained when a car belonging to Anthony Orlowski, not now a party to these proceedings, went out of control and rolled down a hill and into plaintiff while she was picnicking on the grounds of the Fox River Picnic Grove owned and operated by the defendants, Louis Cernocky and Clara Cernocky, his wife. The verdict and judgment in favor of Theodore Marquardt, husband of plaintiff, Jeannette Marquardt, was in the amount of Five Thousand Dollars ($5,000) for loss of consortium as a result of the same occurrence.

The complaint alleged the negligence of Anthony Orlowski, the owner of the car which went out of control, his wife and sister. The complaint further alleged the negligence of the defendants Cernocky in the operation of the Fox River Picnic Grove. On plaintiffs' motion Josephine Orlowski and Virginia Orlowski were dismissed as parties defendant at the close of the plaintiffs' case. Verdicts and judgments were rendered against the defendant Anthony Orlowski and the defendants Cernocky. Anthony Orlowski composed his differences after denial of his post trial motion. No issue is raised on the pleadings. The defendants filed post-trial motions renewing their motions for directed verdicts made during trial and requesting the entry of judgments notwithstanding the verdicts. Motions for a new trial were not filed. Upon denial of these motions, these appeals followed.

Defendants urge that their post-trial motions should have been granted because, in their view, on the uncontroverted facts (1) the injuries received by Mrs. Marquardt were the result of a freak accident which could not reasonably have been anticipated by them and (2) the negligent act of defendant Anthony Orlowski in not properly braking his car and the act of his unattended four-year-old daughter in releasing the reverse gear thereby causing the car to careen downhill were independent, efficient causes of the injuries, and no act or omission of these defendants was a proximate cause of such injuries.

Plaintiffs maintain that the trial court did not err because the question of defendants' negligence, the question of whether it proximately contributed to cause the accident and whether there was an independent, efficient intervening cause were matters upon which the judgment of reasonable men might differ and therefore were questions of fact properly submitted to the jury.

The question presented by these appeals is the rather narrow issue of whether there is any competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorable to the plaintiffs, tending to prove the material elements of the plaintiffs' case and from which a jury might reasonably find for the plaintiffs and against defendants, Lindroth v. Walgreen Co., 407 Ill. 121, 130, 94 N.E.2d 847; Neering v. Illinois Cent. R. Co., 383 Ill. 366, 374, 375, 50 N.E.2d 497; McCullough v. Orcutt, 14 Ill.App.2d 513, 517, 145 N.E.2d 109; King v. Mid-State Freight Lines, 6 Ill.App.2d 159, 162, 126 P.2d 868.

The principles applicable on such a motion are the same as are applicable on a motion for a directed verdict and are well settled, Neering v. Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497. We are not concerned with the weight or credibility of the evidence. Reasonable inferences may be drawn by a jury from established facts, and a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence. Only where there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for judgment notwithstanding the verdict. King v. Mid-State Freight Lines, 6 Ill.App.2d 159, 163, 126 P.2d 868.

Defendants were the owners and operators of the Fox River Picnic Grove, a picnic grounds along the banks of the Fox River, in the Village of Fox River Grove, Illinois. The tract was a private park consisting of 45 acres fenced on all sides except on the river side. The grounds consisted in part of rolling, wooded hills and in part of level ground. There were some 35 or more outdoor fireplaces, 400 picnic tables, a merry-go-round, children's concessions, a ball diamond, two stands, a bar operated on the premises and swimming facilities. Signs along the highway placed by defendants invited the public to the grounds.

The occurrence in question occurred about 1:30 p. m., on the 4th of July, 1955. The usual 4th of July crowd of picnickers were in attendance, the number estimated by one witness to be 5,000 or 6,000 in the level picnicking area and 100 people on the hill overlooking the picnicking area. Defendant Louis Cernocky testified that the people numbered 'several thousand', I would say, Well, a couple of thousand'. Children were all around the park. Defendant Louis Cernocky testified there were 30 to 50 cars parked on the hill which could be seen from his office. There was neither fence, guard rail, curbing, tree stumps nor logs between where these cars were parked on the upper level and where a sharp descent began.

The defendants made a charge of one dollar per automobile which was collected by an attendant, one Brady, at the entrance to the grove. Brady was the sole attendant on the grounds, and his duties were confined to taking money and issuing tickets. The defendants were both personally present throughout the day and saw the cars parked on the hill. The defendant Orlowski testified that he was told by Brady, the attendant at the gate, to park on the hill where the other cars were, and that Brady pointed to the place where he eventually parked. There were no directional parking signs, and no one was supervising or directing the parking of automobiles. One witness testified that at 11:00 a. m. on the day in question the level area along the road was filled with cars and patrons were told to park anywhere.

Both parties introduced into evidence photographs showing the tract, its terrain and foliage in the portion of the grove where the incident occurred. These photographs and the testimony of the witnesses reveal that the crest of the hill upon which the cars were parked was sloping or slanted and that the lower portion of the hill was steep. The hill, which was a substantial one and part of the natural condition of the terrain, measured 200 to 300 feet from the crest to the bottom.

Defendant Anthony Orlowski testified that after he got up the road and on the crest of the hill he parked his car, a Kaiser 1953 Hydromatic, on a flat patch of ground; that he turned off the ignition and put the car in reverse to hold it in place. There was a hand brake on the car but he did not use it and did not set it. One of the plaintiffs' witnesses, Wayne Just, described the parking level where the Kaiser was parked as resembling the top of an inverted saucer and said the Kaiser was parked so its front was six feet from the crest of the hill. He said the land on which the Kaiser was parked was not level. Another of plaintiffs' witnesses, Charles Fiedler, testified that there was a slight slope where the automobile was parked. Defendant Anthony Orlowski testified further that his front wheels were at least a car length from the sharp descent of the hill and that he had closed the doors and taken the keys with him when he, his wife and his children arrived at the location and selected a picnic bench. They went swimming during the morning and after lunch the older girls had gone swimming again. Defendant Anthony Orlowski and his wife were playing canasta at the picnic table while their youngest daughter, Tony, was sleeping on a blanket on the ground. They placed the picnic table at 4 to 6 feet from the car and the blanket on which their four year old child, Tony, was sleeping, at 3 to 4 feet to the other side of the picnic table. Both the Orlowskis claimed they were watching the child constantly; however, about a minute after they had last looked at the child and noticed her sleeping, they heard a cry 'A car is rolling'. Orlowski glanced, noticed it was his car, ran to the crest and saw his daughter was inside and tried to open the door. When that failed, Orlowski tried to reach in through the left hand door to reach the steering wheel. In the meantime, Mrs. Orlowski had grabbed the rear bumper and was trying to hold the car back. Something knocked Orlowski out and Mrs. Orlowski was unable to hold on to the car. It careened down the hill in an irregular fashion finally smashing into Mrs. Marquardt, the plaintiff, who was picnicking with her group below and pinning her up against the bench which was crushed into a tree.

The gear lever was found to be in neutral after the occurrence.

The witness Fiedler testified that the keys were in the ignition lock when the car came to a stop at the bottom of the hill. The witness Robert Rust, the Town police officer who investigated the occurrence, testified that immediately after the occurrence the hand brake on the Orlowski car was found not to work--it had 'no pull at all'.

We conclude that there is competent evidence,...