About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

130 Nat'l Corp. Rep. 1 (1954-1955)

handle is hein.journals/natcorprep130 and id is 1 raw text is: DEVOTED TO GENERAL NEWS, LAW, COMMERCE AND FINANCE 24 Published at 1307, 8 S. Dearborn St. Chicago. Ill. Telephone RAndolph 6-0661 ESTABLISHED June 23, 1890. -,ume.130. Number I. CHICAGO,,DECEMBER 24, 1954 Subscription $2 a Year. Ten Cents a Copy RECENT ILLINOIS APPELLATE COURT DECISIONS First Division Presiding Justice Joseph Burke, ustice Hugo M. Friend, Justice rover C. Niemeyer. Second Division Presiding Justice Ulysses S. ,h wartz, Justice Edwin A. Robson, istice John V. McCormick. Third Division Presiding Justice Roger J. Kiley, ustice John Charles Lewe, Justice [ichael Feinberg. Clerk, Leslie V. Beck. .)igested for THE NATIONAL CORPORA- toN REPORTER by Frederick A. Rowe, Jr. 46375. December 13, 1954. eople of the State of Illinois ,x rel. Crnkovich, petitioner- * ppellant, vs. Kroll etc., et al., 2spondents-appellees. Appeal * om Superior Court of Cook ounty. Order reversed and ause remanded with direc- ions. (Friend, J.) Mandamus -Village trustee seeking to ',revent officials from enter- Zaining petition to contest ?ection-Petition filed more ian thirty days after trustee :iclared elected -Board of rustees having exclusive ..,trisdiction to decide election -'ontest-Timely filing of con- test being an important limita- tion-Trustees having duty to decline to entertain petition- Arbitrarily disregarding duty. The relator, who had been elected and declared a trustee of the Village of McCook, filed a petition for a writ of man- damus wherein he sought to prevent the other trustees of the village, its president and ,lerk from entertaining a oetition to contest his election ,,bhich was filed more than t;hirty days after relator had been declared elected. A mo- tion to dismiss the petition was sustained, and an order entered accordingly, from which relator appeals. Upon the pleadings and facts ad- mitted by the motion to dis- miss the petition the question presented is whether the board of trustees had juris- diction to entertain the peti- tion to contest relator's elec- tion, which was admittedly filed more than thirty days after relator had been de- clared elected. The court held that governmental policy, both federal and state, as evi- denced by constitutional and statutory provisions, as well as judicial construction, has always been to vest such ex- clusive jurisdiction.in legisla. tive bodies, and that the village board of trustees being a legislative body, is the sole judge of the election and ,qualification of its own mem. 'bers and has exclusive juris. diction to hear and decide the election contest in question.,I Timely filing of an election contest is an important limita- tion on the right of contest- ants. Part of the basis for the jurisdiction of a village board of trustees over contests of the election of members of that board is the statute making the board the judge of the election of its members. Its power to act in that respect exists because the statute makihig it the judge of the election of its members has been construed to designate it as the body to hear an election contest; but such right is not an unfettered right to act without regard to procedures established to 'regulate elec- tion contests. The trustees of defendant village were elected for a term of two years. If the statute were not inter- preted to include the time limitation, it would be possi- ble for the trustees to wait fifteen or eighteen months after a trustee had been declared elected to entertain a contest. In the meantime, another election of one-half of the board of trustees, who are elected in alternate years, may have been consummated, and it is conceivable that the board would then be so constituted that it could act arbitrarily with respect to the contested trustee and declare his office vacated without any justifica- tion. The writ of mandamus sought by this petition is not one to require respondents to decide an election contest one way or the other. The question presented by the petition was whether respondents were without jurisdiction to ehter- tain the petition. It was their clear legal duty to refuse to receive it and entertain it, and they arbitrarily disregarded that duty. The relator showed a clear and undoubted legal right to the relief prayed, and a corresponding duty on the part of respondent to do the acts sought to be compelled. Because of the time element respondents had a duty to de- cline to entertain the petition. Since they failed to perform [it, the trial court should pro- tect relator's right and the public interest by the issuance of a writ. -.46380. December 13,. 1954. Leone, appellant, vs. Spath, e appellee, Del Giorno, defend- I ant. Appeal from Superior - Court of Cook County. Judg- - ment affirmed. (Burke, P. J:) e (Continued on page 9) PERSONAL INJURIES--PATRON I Digitized from Best Copy Available Entered as Second Claw Matter, October 18, 1890, at the Post Office at Chicago, III., under Act of March 3, 1879. Kill.M, I I I I IN AMUSEMENT PARK STRUCK r BY OVERHANGING TREE BRANCH. In the case of Rathbun vs. Humphrey Company (Court 1 of Appeals of Ohio, Cuyahoga County, February 24, 1953, rehearing denied March 23, 1953), 113 N. E. (2nd) 877, Hurd, Presiding Justice, de- livered the opinion of the court: This is an action of tort instituted by plaintiff in the Court of Common Pleas to re- cover for personal injuries re- ceived during a ride upon an amusement device. Plaintiff appeals from a judgment en- tered pursuant to a jury ver- dict for defendant. Defendant, The Humphrey Company, owns and operates an amusement park in the city of Cleveland known as Euclid Beach Park. One of the at- tractions is a roller coaster called the Thriller. It is composed of three separate cars, with four seats each joined together in a train. The train operates on rails sup- ported by a trestle, built in the form of declivities, dips and curves. It is pulled by a chain from the loading plat- form to the top of the trestle. From there it descends by force of gravity. The ride covers a distance of about 2,800 feet in about two min- utes. Plaintiff, a young woman of about 32 years of age, en- tered the Thriller with her mother. They occupied the first seat of the second car, the mother to the right or outside, the daughter to the left or in- side. The car ahead was filled to capacity with eight persons. The seats in back of plaintiff in the second car were wholly or partially filled. Plaintiff testified that as they were ap- proaching the return curve, she turned slightly to her mother and told her to scream as they were approaching a series of dips. Plaintiff testi- fied further that when she was thus turned slightly to her right, a branch of a tree suddenly whipped down from foliage overhanging the track area on the return or lower curve striking her forehead, nose and left eye, breaking her eyeglasses in such a manner that the left lens was shattered and the frame fell into her mother's lap. She claimed that she was seriously injured be- cause pieces of the shattered lens lodged in her eye. Six grounds of error were assigned, two of which were abandoned in this appeal. Combining the first two as- signments of error, plaintiff asserts- (1) that the trial court erred prejudicially in I permitting the manager of the Thriller to'testify that during the summer of 1948 up to and il including September 26, 1948, S, the date of the injury, no per- b, son had ever complained to V him of having been struck by c a branch or limb of a tree dur- t ing a ride, and (2) in per- mitting defendant to intro- I duce testimony of the number I of persons who rode the roller s coaster on the day of the in- I jury. The courts are divided on v the question of the admissi- I bility and competency of evi- I dence showing non-occurrence or absence of other similar i accidents in negligence cases t generally. Some hold that such N evidence is not admissible for I the purpose of showing that s the place of injury was free t from danger. Others hold that such evidence is admissible for s that purpose and that it tends to show reasonable care, thus t negativing to a certain degree the charge of negligence. In any event, such testimony is admissible only if it has ra- tional probative value bearing upon the issues made upon the pleadings. It is never con- clusive, the persuasive effect or weight being for the jury alone under proper instruc- ti'ons. As a general rule, such testimony is admitted as ap- plicable to static conditions where the danger is not ob- vious. Considering now the issues made by the pleadings in the instant case, the plaintiff al- leges and the defendant denies, (1) that the proximate cause of her injuries was the negli- gence of the defendant in failing to provide a route of travel which was reasonably safe for patrons to use; (2) in designing, operating and maintaining the Thriller in close proximity to abutting and overhanging trees; (3) in failing properly to care for said trees and to exercise vigilance to provide patrons with a ride free from danger, occasioned by the presence of such trees wholly under the control and management of the defendant; (4) in permit- ting said tree and the branches thereof to become a source of danger to patrons using said roller coaster; (5) in failing to warn plaintiff of the dan- ger. From these allegations it appears that plaintiff has created an issue as to the static condition of the amusement device in relation to external conditions surrounding its design, operation and mainte- nance in the particular loca- tion close to overhanging and ' (Continued on page 10) 'inancial-Commercial ***Dun & Bradstreet, Inc., in its weekly review of whole- ale commodity prices, Decem- ber 15, says: The mild down- yard trend in the general ommodity price level con- tinued this week. The Daily Wholesale Commodity Price ndex, compiled by Dun & Bradstreet, Inc., registered a light decline to 275.93 on December 14, from 277.83 a week earlier. It compared with 273.39 on the corres- ponding date a year ago. Prices in leading grain mar- kets continued to fluctuate irregularly with the general trend toward lower levels. Wheat moved in a narrow, range and displayed some strength at time, reflecting a tightening in the cash market as much wheat appeared to be seeking the Government loan. There was a decidedly weaker tone in corn with prices off sharply from recent highs as demand slowed dowrf consid- erably and producer market- ings increased in volume. Oats showed little change for the week as the market rallied fol- lowing a period of liquidation. Rye finished lower despite early strength as the result of sizeable export sales. Ac- tivity in grain and soybean futures on the Chicago Board of Trade was down slightly from the previous week and the same week last year. Book- ings of hard wheat bakery flours this week dropped to the smallest volume in several months following the sharp expansion in buying the prev- ious week when large as well as small buyers covered their needs for the next two to three months. Spot butter prices weakened under increased sell- ing pressure on some accum- ulation of fresh goods. Raw sugar trended lower in quiet trading as the market awaited announcement of quota allot- ments for 1955. Cocoa was al- ternately strong and weak in sympathy with trends in the London market. Sizeable sup- plies of cocoa were reported afloat for the United States. Warehouse stocks here total- led 99,064 bags, against 89,- 221 last week, and 49,821 bags a year ago. Lard sank to new lows for about two years as a lag in export buying and predictions of a good increase in stocks tended to discour- age buying. Hog values were sharply lower as receipts mounted. The average price of barrows and guilts last Thurs- day was $17.13, the lowest since December, 1952. Cattle prices on the other hand were firmer under good demand for (Continued on page 11)

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most