Linneen v. City of Chicago

• Decision Date: 13 May 1941
• Docket Number: Gen. No. 41269.
• Citation: 34 N.E.2d 100,310 Ill.App. 274
• Parties: LINNEEN ET AL. v. CITY OF CHICAGO ET AL.
• Court: United States Appellate Court of Illinois

310 Ill.App. 274

34 N.E.2d 100

LINNEEN ET AL.

v.CITY OF CHICAGO ET AL.

Gen. No. 41269.

Appellate Court of Illinois, First District, Second Division.

May 13, 1941.

Appeal from Superior Court, Cook County; U. S. Schwartz, Judge.

Action by Robert H. Linneen, administrator of the estate of Louise Linneen, and another, against the City of Chicago and another, for a death and injuries sustained when an automobile struck a bridge abutment. From judgments for plaintiffs, defendants appeal.

Affirmed. Barnet Hodes, Corp. Counsel, of City of Chicago (Alexander J. Resa and L. Louis Karton, Asst. Corp. Counsel, both of Chicago, of counsel), for appellants.

Finn & Miller, of Chicago, for appellees.

FRIEND, Presiding Justice.

Robert H. Linneen, administrator of the estate of Louise Linneen, deceased, and Ignatius J. Benson, brought suit against the City of Chicago and the Sanitary District of Chicago, to recover damages against both defendants for the death of Louise Linneen and for injuries to Benson. Trial by jury resulted in verdicts against both defendants respectively; in favor of the administrator for $10,000 and in favor of Benson for $16,750. Motions for judgments non obstante veredicto and for a new trial were overruled and judgments entered on the verdicts. Defendants joined in an appeal, filing separate briefs.

The accident occurred at about 2:00 a. m. on October 26, 1934, at the juncture of the north approach of the bridge over the Sanitary District canal and Lincoln avenue, in the northwest section of Chicago. Robert H. Linneen, Louise Linneen, his wife, and Benson, were riding in a southeasterly direction along Lincoln avenue in a 1932 Chevrolet coupe belonging to Benson. All three were sitting in the front seat of the car, with Linneen at the wheel. They collided with the northwest abutment of the bridge, and as the result of the collision Linneen's wife was killed and Benson was seriously injured.

Lincoln avenue has long been a public street within the city limits. It was a street long before the building of the Sanitary District canal. When the canal was constructed the Sanitary District acquired property along both sides of the street, cut a channel through the street and built the bridge in question. For many years the roadway of both bridge and street were of the same width, approximately 23 feet. Prior to 1932 the city passed an ordinance for the widening of Lincoln avenue from Diversey avenue to the city limits, which embraced the bridge in question and Lincoln avenue for a considerable distance northwest of the bridge. The improvement, when completed, established a highway approximately 70 feet in width, and consisted of four lanes of traffic. The bridge, however, remained at its original width, so that through the years 1932, 1933 and 1934, the traffic on this 70-foot roadway converged into a bridge roadway of 23 feet within the short space of 60 feet. After the accident a new bridge was built to conform to the newly widened highway, but before this was done numerous accidents had occurred in precisely the same manner as the accident in question and evidence thereof was adduced upon the hearing over the objection of defendants.

On the northwesterly approach a sidewalk was constructed across the bridge which ran between two iron girders. One girder next to the roadway extended 3 feet above the level of the pavement and terminated at the end of the bridge. Northwest of the bridge and extending to within 300 feet thereof was a grass plot in the center of the highway providing a two-lane car roadway on both sides thereof between the grass plot and the curb. This grass plot ended about 300 feet northwest of the bridge and from there on to the bridge the entire roadway was paved. A black line divided the two lanes of the southwestern part of the roadway to the southeast of the grass plot. As the pavement approached the bridge this black line led directly to the sidewalk girder alongside the roadway, and if followed would direct an automobile right onto the sidewalk and into the girder. There were no street lights northwest of the bridge, but beginning about 100 feet south of the southeast end thereof there were high street lights located on the edge of the curb where the highway again reached a width of 70 feet. The bridge was approximately 275 feet in length and the lights to the southeast furnished no illumination to the northwest approach to the bridge.

Aside from the legal aspects of the case affecting the liability of defendants, which are of paramount importance in this appeal, it is urged by both defendants that plaintiffs have not established by a preponderance of the evidence that they were in the exercise of ordinary care. Of the three persons involved in the accident, Robert H. Linneen, his deceased wife Louise, and Benson, one was killed and the evidence disclosed that the other two suffered from retrograde amnesia, so that there was not among them any witness as to what happened at the time in question. The only two eyewitnesses to the accident were passengers in an automobile coming from the opposite direction who saw Benson's car approaching while they were crossing the bridge and heard the crash after they had driven about 15 or 20 feet beyond the northwest end of the bridge. They both testified that Benson's car was traveling at a reasonable speed, with the headlights burning, and under proper control. The accident occurred on a dark night with a slight fog arising from the canal. The immediate vicinity of the approach to the bridge was dark and sparsely populated.

There is considerable conflict in the evidence as to the adequacy of existing warning signals at the approach to the bridge at the time of the accident. Defendants adduced evidence tending to prove that there was erected in the parkway northwest of the channel a standard state highway sign, 3 1/2 feet square, which was placed in a diamond shape, containing 8-inch reflector buttons, spelling the word, “Slow,” and immediately below that word, painted in black lettering 5 inches high, the words, “Narrow Bridge;” also a Welsbach flasher signal located outside of the south sidewalk and about 25 feet northwest of the end of the bridge; that there was bolted to the top of the upturned girder at the northwest end of the bridge an oblong box, 6 by 12 inches in dimension, on which were attached reflector buttons covering an area of 8 by 4 inches, which depended for reflection upon the headlights of approaching automobiles; that there was also erected at the end of the girder, and about midway from the top to the bottom thereof, a circular “bull's eye” reflector signal; and that there were fences beginning at the northwest end of the bridge and extending on both sides in a northwesterly direction for a distance of about 75 feet, which were painted white, with black stripes about 12 inches apart, covering the surface.

Although there is substantial agreement as to the existence of the Welsbach flasher signal and the reflector buttons attached to the girder of the bridge, there was a marked disparity between the testimony of witnesses for the respective parties as to the distance from which these warnings were visible, varying from 75 feet to 1,200 feet. As to the other warning signals, the evidence is so conflicting as to cast grave doubt whether they were there at the time of the accident. Several of defendants' witnesses, employees of the sanitary district, when called to describe the state highway sign, admitted they had not been asked about it until a day or two before they testified, and some of them admitted that before taking the stand, which was almost five years after the accident, they had been shown a photograph which tended to refresh their recollection of the sign. When this photograph was taken is not shown of record. Defendants failed to call any witnesses who were present after the occurrence on the night of the accident to testify to the existence of such a sign, although two officers appeared on the scene immediately after the collision. Plaintiffs insist that no such sign then existed, but if there was such a sign, plaintiffs' evidence tended to show that the parkway on which the sign was said to be erected was filled with weeds for several blocks north of the bridge. These weeds were from 6 to 8 feet high, and if the jury believed the testimony of plaintiffs' witnesses, it is extremely doubtful whether the sign could have been visible to a motorist driving along the road.

Defendants complain because the court permitted plaintiffs to adduce evidence of other collisions of automobiles with the northwest end of the bridge coveringa period of more than two years. This testimony was first brought into the case by counsel for the Sanitary District in cross-examining Ernest A. Spiegel, called by plaintiffs. Counsel for plaintiffs examined the witness on direct, with respect to prior accidents, but objections of defendants had been sustained by the court. Spiegel operated a gas station southeast of the bridge for several years. He described the condition of the bridge and the reflectors on the girder and the location of the flicker light, and testified positively that the conditions remained the same from the year 1931, when the roadway was widened, until the time of the accident in the case at bar. The bridge was the same, the street was the same width, and the lights and reflectors were all the same from the time the road was widened until the time of the accident. On cross-examination defendants' counsel elicited from Spiegel that he had frequently walked across the bridge after midnight to call the police for someone who had hit the bridge, and that on these missions he paid attention to the lights and reflectors and found them broken most of the time, because some car or other object had “smashed into those reflector lights on the beam.” Defendants' counsel offered no objection to this testimony, nor...