Calhoun v. Corning

• Decision Date: 10 May 1946
• Docket Number: Gen. No. 43507.
• Citation: 66 N.E.2d 303,328 Ill.App. 493
• Parties: CALHOUN v. CORNING.
• Court: United States Appellate Court of Illinois

328 Ill.App. 493

66 N.E.2d 303

CALHOUN

v.CORNING.

Gen. No. 43507.

Appellate Court of Illinois, First District, Third Division.

April 24, 1946.

Rehearing Denied May 10, 1946.

Appeal from Superior Court, Cook County; Francis B. Allegretti, Judge.

Action by Eugene Thomas Calhoun against Grace Hill Corning, to recover for injuries sustained when plaintiff fell on a sidewalk adjoining defendant's premises. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.Hubbard, Baker & Rice, of Chicago (Alvin Glen Hubbard, of Chicago, of counsel), for appellant.

R. N. Wyckoff and Leo M. Tarpey, both of Chicago (John B. King, of Chicago, of counsel), for appellee.

KILEY, Presiding Justice.

This is a personal injury action arising out of plaintiff's fall upon an icy sidewalk in front of 301-305 West Lake Street in Oak Park, Illinois. The jury found the Village of Oak Park not guilty and gave verdict against Grace Hill Corning, owner of those premises, for $10,000. Judgment was entered on the verdict and Grace Hill Corning has appealed.

Plaintiff was walking west on the south sidewalk of Lake Street on February 12, 1943, about 7 p.m. The sidewalk was covered with ice and snow to a depth of three inches or so. This condition had existed for about three weeks. The night of the accident was dark and foggy. Plaintiff passed the east driveway leading from Lake Street into the premises. He slipped, but did not fall. When he was crossing the west driveway, he slipped, fell and was badly injured. There is no contention made that the injury was not serious or that the verdict is excessive.

There is no question before us on the case against the village. There is no cross-appeal.

Plaintiff alleged his due care as a pedestrian; Grace Hill Corning's ownership, possession and control of the premises abutting the sidewalk where he was injured; the existence of an ordinance at the time which required her ‘at all times' to keep the driveway ‘free and clear’ of ice and snow and remove accumulated snow therefrom; her duty to him by virtue of the ordinance and her violation of the duty; that she had notice of the condition of the sidewalk and driveway; and that as a direct consequence ‘of the foregoing acts and omissions' and as a direct result of the condition of the walk and driveway, plaintiff was injured. He described the driveway in the complaint as having a dangerous pitch and slope and that part of it was elevated several inches above the regular sidewalk level.

Grace Hill Corning, whom we shall hereinafter refer to as the defendant, contends the ice and snow were the result of natural causes and that plaintiff cannot recover; that the village ordinance is unconstitutional and void; that if valid, it conferred no cause of action upon plaintiff; and that, in any event, any action against her would be derivative and, since the village has been found not guilty, she cannot be found guilty.

The driveway had been constructed before defendant purchased the property in 1940. It had not been altered since she became owner. The sidewalk, across which the driveway was built, was 6 feet wide. The length of the driveway from the building line to the curb was 14 feet, 3 inches. The driveway was 10 feet wide. It sloped upward from the curb to the building and, across the sidewalk, was higher than the sidewalk level. The highest point of elevation was 8 inches at the building line. The sidewalk sloped to and from the driveway on either side. These slopes measured 5 feet to sidewalk level. All of these sloped surfaces are corrugated.

The parties agree that the property owner is not liable where the snow and icy condition has been general in the neighborhood and was not aggravated or caused in some way by the owner, but is the result of natural causes. Kelly v. Huyvaert, 323 Ill.App. 643, 56 N.E.2d 638. Plaintiff says, however, that his case comes within the exception, that is, that the condition here was caused by defendant inasmuch as the driveway was of dangerous construction and, when covered with ice and snow, was a trap. He does not contend that defendant had the duty generally to clean snow and ice from the driveway, but that here because of the dangerous driveway she maintained she had the duty. In Graham v. City of Chicago, 346 Ill. 638, 178 N.E. 911, the city was held liable where it neglected to remove ice which resulted...