72 N.E.2d 326 | Ill. | 1947
The city of Chicago passed an ordinance to build certain subways under designated streets of the city of Chicago, among which was one under Dearborn street, and along the east side of the Hartford Building, located at the corner of Dearborn and Madison streets. The Hartford Building was owned by appellees.
The subway was constructed by what is known as the shield method, which consisted of pushing a circular shield about twenty-five feet in diameter underneath the soil to create the tunnel, which later was surfaced and lined for the purpose of transportation of the public by conveyances. The shield when pushed forward by a number of hydraulic jacks permitted soil in front to flow to the interior through holes or openings in the front, where it was carried away. The size of the openings in the shield was regulated according to the density of the soil, or the substance in front.
Two of these tunnels were built under the surface of the street, parallel with each other, and the bottom of the tunnel was lower than the bottom of the foundations of the Hartford Building. Apprehending danger to their foundations, and hence to the building itself, upon the advice of engineers and architects the owners of the building *621 built caissons under their foundations down to the bed rock, so that any flowage or shifting of the soil would not injure the structure of the building. The theory of the plaintiffs was that there was a duty upon them to reasonably anticipate any damage which might accrue by reason of the construction of the tunnels, and that it was the duty of the city of Chicago to reimburse them for the reasonable costs of installation of the caissons, necessitated by the building of the tunnel.
There seems to be no dispute upon the legal theory on which the plaintiffs brought this suit, but only that what was done by the plaintiffs was not reasonably necessary for the protection of the building, and, if necessary, that special benefit to the property equal to the cost was enjoyed by the plaintiffs by reason of the improvement. The theory of the plaintiffs was that such caisson construction was necessary, and the answer of the defendant, after denying the knowledge of the steps taken by the plaintiffs to minimize the damage, denied that the property, or the persons in the property, would have been damaged in any way by the proposed subway construction, and denied that the installation of the caissons was reasonably necessary for the protection of the plaintiffs' property from any damage which might be caused by the construction of the subway.
The trial of the case centered around the question whether the plaintiffs were reasonably justified in expending the money for the protection of the building, and the trial, in the superior court of Cook county, resulted in a verdict in favor of the plaintiffs, which was affirmed by the Appellate Court, and we have allowed an appeal to this court.
The principal contention made by appellant is the action of the court in sustaining objections to evidence of an expert witness upon the ground the question as propounded to this expert called for an answer that was the question *622 to be determined by the jury. The evidence of the plaintiffs disclosed that the shields which created the tunnel were more than twenty-five feet in diameter, and that the outer wall of the tunnel itself was of less diameter than this, which would allow some loss of ground or soil and permit settlement; that the bottom of the subway was lower than the bottom of the foundations of the Hartford Building; that the pillars of the building rested on concrete mats, and if the ground slipped from under them it would cause a wracking or listing of the building, and not only damage it but cause the mats or footing to tilt sideways, and bring undue stress on certain of the columns. The character of the clay was described, and the liability of the bearing points to slip off the base of the footings and cause damage, and that the reasonably proper way to avoid any damage was to build concrete caissons from below the mats down to the bed rock, which was done at a cost of over $30,000.
The appellant upon its part offered an expert, who testified he was familiar with the building of the subway, with the construction of the Hartford Building, with the pressure of the building per square foot upon the mats, and with the bearing capacity of the clay beneath the building, and gave a general description, after which he was asked the following question: "Have you an opinion, based upon your knowledge of the soil conditions and of the type of construction of the Hartford Building, and having in mind the shield method of construction of the subway, have you an opinion whether shoring or underpinning measures were necessary during the construction of the subway?" The court sustained an objection to this question upon the ground that the answer would invade the province of the jury.
It is to be noted that the question propounded was based upon the witness's own knowledge of the soil conditions, his own knowledge of the bearing capacity of the *623 soil, his own knowledge of other soil investigations made by him, and his own knowledge of the shield method of construction. There was no hypothetical question propounded to the witness. The answer sought, and which he gave out of the presence of the jury, was: "My opinion is that no shoring or underpinning was necessary in the case of the Hartford Building." If the work done by the plaintiffs was not reasonably necessary they were not entitled to recover, and, if it was reasonably necessary, the city was liable to reimburse them. Thus, the answer which the witness proposed to give was exactly the question the jury was to determine in ascertaining whether the plaintiffs or the defendant would receive its verdict.
As early as Chicago and Alton Railroad Co. v. Springfield andNorthwestern Railroad Co.
This case has been cited and followed a great many times. In a malpractice case we held that it was error to permit an expert to give his opinion as to whether, from all of the evidence in the case, the defendant was guilty of malpractice or not, that being a question for the jury. (Hoener v. Koch,
We have also held that it is not proper to ask a witness, called upon as an expert, a question which does not embody a hypothetical statement of the facts, but which directly calls upon the witness to place himself in the place of the jury. (Pyle
v. Pyle,
In Keefe v. Armour Co.
And in Maton Bros., Inc. v. Central Illinois Service Co.,
The holdings in all of these cases go back to what was said inChicago and Alton Railroad Co. v. Springfield and NorthwesternRailroad Co.
Appellant also urges that defendant's instruction No. 22, defining special benefits, was improperly refused by the court. The instruction was abstract in character and did not include all of the essential elements to constitute special benefit under our decisions in such cases, and, besides, was adequately covered by plaintiffs' instruction No. 7 and by defendant's instruction No. 19.
The principal contention in this case has been, and was at the trial, as to the propriety of the court's ruling in sustaining objections to the testimony of appellant's expert. We are of the opinion the court properly sustained the objection made by plaintiffs, for the reasons pointed out above. Other points are raised by appellant, which we have carefully considered, but which it is not necessary to discuss in this opinion.
The judgment of the Appellate Court for the First District is affirmed.
Judgment affirmed. *627