Dee v. City of Peru

• Decision Date: 18 February 1931
• Docket Number: No. 20529.,20529.
• Citation: 343 Ill. 36,174 N.E. 901
• Parties: DEE v. CITY OF PERU.
• Court: Illinois Supreme Court

343 Ill. 36

174 N.E. 901

DEE

v.CITY OF PERU.

No. 20529.

Supreme Court of Illinois.

Feb. 18, 1931.

Action by Harry Dee, administrator of the estate of Joseph G. Dee, against the City of Peru. Judgment for plaintiff was affirmed by the Appellate Court, and defendant appeals on certificate of importance.

Reversed and remanded.Appeal from Appellate Court, Second District, on Appeal from the Circuit Court, La Salle County; Frank H. Hayes, Judge.

Charles W. Helmig, of Peru, and Butters & Butters, of Ottawa, for appellant.

Richolson, Armstrong & O'Meara, of Ottawa (John H. Armstrong, of Ottawa, of counsel), for appellee.

STONE, J.

This cause is here on a certificate of importance of the Appellate Court for the Second district. Appellant seeks to reverse the judgment of that court affirming the judgment of the circuit court of La Salle county in an action for damages for the death of appellee's intestate, Joseph G. Dee, caused by drowning when the automobile in which he was riding as a passenger was driven off a bridge into the Illinois river at Peru through an opening occasioned by the turning of the bridge draw span. The declaration charges negligence on the part of the appellant city in failing to construct proper gates or barriers and to give sufficient warning of the dangers of that place. At the close of the plaintiff's case, and again at the close of all the evidence, appellant moved for an instructed verdict in its behalf, which was denied. The jury returned a verdict for appellee in the sum of $750, and judgment was entered thereon. The Appellate Court affirmed that judgment.

The Illinois river at Peru flows almost east and west. Peru is an incorporated city situated on the north bank of the river. The bridge extends almost north and south across the river, and has a draw-span 320 feet in length. This span swings on a pier built in the center of the river. When the draw span is fully turned, it extends up and down the river. The open space between the north end of the south approach of the bridge and the south side of the center pier is 152 feet in width. This south part of the bridge is about 75 feet in length, and is covered with a concrete floor or roadway. At a point about midway of this approach there was on the date of the accident a gate or barrier constructed of yellow pine lumber 2 inches thick by 6 inches wide, with diagonal braces of like dimensions and with uprights 4 inches by 4 inches at either end. The gate was over 4 feet above the floor of the approach. It was hung by hinges to the iron framework on the east side of the bridge and, when closed, was fastened to the framework of the west side of the bridge by a hook made of half-inch iron. Extending south from this part of the bridge is a gravel-surfaced road along a dike thrown up in the low land south of the river. This road extends straight with the line of the bridge from the approach a distance of approximately 100 feet, and then turns slightly to the southwest, and continues more than a quarter of a mile, where it again turns to the left and continues south. On the west side of this road, near the turn in it nearest the bridge, are some outbuildings and a house occupied by the bridge tender and his family. It is undisputed that, on approaching the bridge from the south, the gate or barrier, when closed, is fully visible for a distance of more than 100 feet. About 7:30 on the morning of June 21, 1927, appellee's intestate, while riding with one George Schuets in a small automobile driven by the latter, crossed this bridge going south from Peru, and about 9 o'clock on that same morning returned in the direction of Peru in the same car. When they returned, the draw span of the bridge had been opened in order to make repairs on the turning mechanism, and the gate or barrier was swung across the approachand fastened in the usual manner, thus closing the approach and bridge to travel. Schuets drove the automobile up to and over the south portion of the bridge, through the barrier and into the river, and appellee's intestate was drowned. Schuets succeeded in disengaging himself from the car, and was taken into a boat by Otto Koehler, who was then on the river at that point.

Appellee's evidence of the occurrence consisted entirely of the testimony of Schuets, who stated that at the time of the accident he was driving at a rate of speed from 30 to 35 miles per hour, and that he did not see the barrier across the approach until he was 20 feet from it. The evidence shows without dispute that, after crashing through the barrier, the car landed in the river on its four wheels at a point more than 100 feet north of the north end of the approach. The witness Koehler testified that it struck the river at a point about 20 feet from the center draw or pier of the bridge, which would make the distance between the point where it went into the water and the north end of the south approach of the bridge about 132 feet. He testified that the car did not come down on either side or end but on all four wheels.

Schuets testified that he knew this bridge, and knew that it had a draw span, that, as he and appellee's intestate were returning to Peru, he was driving, and that he was looking straight ahead at the road. Certain photographs offered in evidence were shown to him, and he testified that they showed the situation as he knew it. He stated that he was just about on the south end of the approach to the bridge when he first saw the barrier, and that he did not see that the span of the bridge was open until he was going through the barrier and off the bridge, and that no one called his attention to the condition of the draw span up to that time. He stated that he was watching the road; that it was broad daylight and the sun was shining; that he got onto the approachbefore he put on his brakes; that, when he put on the brakes, the car slowed down a little, and that he was about two car lengths on the approach before he saw that the gate was shut. On cross-examination he was asked why he did not see the gate before, and he answered: ‘I did not see it.’ Question: ‘You were not looking for it, were you?’ Answer: ‘Why should I be?’ He testified that his eyesight was good, and that he was not dazed, but that he did not see the gate. He also testified that he did not see the bridge tender or his wife standing about 100 feet south of the bridge and waving for them to stop. Asked why he did not see them, he replied that he did not see them.

The proof concerning the photographs showed the measurements of distance from the point at which the camera was placed to the south approach of the bridge and to the gate. One of the photographs introduced in evidence was shown to have been taken 110 feet from the barrier and disclosed the entire gate in the picture, the evidence showing that the camera was placed in the roadway when the picture was taken. The evidence shows that the span of the bridge, when swung, can be seen for...