Randolph v. City of Chicago

• Decision Date: 16 June 1942
• Docket Number: Gen. No. 42151.
• Citation: 315 Ill.App. 85,42 N.E.2d 143
• Parties: RANDOLPH v. CITY OF CHICAGO.
• Court: United States Appellate Court of Illinois

315 Ill.App. 85

42 N.E.2d 143

RANDOLPH

v.CITY OF CHICAGO.

Gen. No. 42151.

Appellate Court of Illinois, First District, First Division.

June 1, 1942.

Rehearing Denied June 16, 1942.

Appeal from Circuit Court, Cook County; Joseph E. Daily, Judge.

Action by Richard V. Randolph against the City of Chicago for injuries sustained when plaintiff fell into a coal hole in a sidewalk. From an order granting defendant's motion for new trial, plaintiff appeals.

Reversed and remanded with directions.

McSURELY, P. J., dissenting. Wolfberg & Kroll, of Chicago (C. A. Caplow, of Chicago, of counsel), for petitioner.

Barnet Hodes, of Chicago (James A. Velde and L. Louis Karton, both of Chicago, of counsel), for respondent.

MATCHETT, Justice.

In an action by plaintiff to recover damages on account of injuries sustained October 17, 1938, when he fell into a coal hole in the sidewalk in front of 451 East 35th Street, Chicago, plaintiff obtained a verdict with damages assessed at $2,500. The city made a motion for judgment in its favor notwithstanding the verdict, which was denied. It then made a motion in writing for a new trial for 15 alleged reasons. This motion was allowed. The plaintiff by leave under Section 77 of the Civil Practice Act, Ill.Rev.Stat.1941, c. 110, § 201, appeals to this court.

The court stated its reason in these crisp words: “I consider there is insufficientevidence in the record to prove either actual or constructive notice to defendant. I will therefore allow and grant the defendant's motion for a new trial.”

In Wagner v. Chicago Motor Coach Co., 288 Ill.App. 402, at page 405, 6 N.E.2d 250 at page 252, this court stated the rule applicable in an appeal of this kind, as follows:

“ ‘The action of the trial court in granting or denying a motion for new trial based on the alleged insufficiency of the evidence to sustain the verdict is within the discretion of the court and is not subject to review except where there has been an abuse of discretion, and this fact clearly appears. * * * Where a new trial is granted on the ground of insufficiency of evidence, a stronger case is required to secure a reversal than where it has been denied; and the action of the trial court in granting a new trial will not be disturbed unless the evidence palpably supports the verdict.’ See, also, Tone v. Halsey, Stuart & Co., 286 Ill.App. 169, 3 N.E.2d 142, and Gavin v. Keter, 278 Ill.App. 308.

“In the Tone case, where we allowed an appeal from an order granting a new trial and affirmed such order, we said (286 Ill.App. 169, at page 171, 3 N.E.2d 142, 143): ‘No Illinois case construing this provision of the Civil Practice Act (Sec. 77) is cited, but many decisions of courts where similar statutes have been enacted are cited to the effect that only where the trial court has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law will an order for a new trial be reversed. Even in such cases, decisions indicate courts are reluctant to reverse, and their power to do so is seldom exercised’--citing cases from Kansas, California, Iowa, Oklahoma, Florida, Pennsylvania, and Washington.”

The only evidence introduced by the city at the trial was a photograph of the place where the accident occurred.

For the plaintiff, Harold Adams testified that he knew of the condition of the hole before the accident happened; that when folks would step on the cover of the hole it would rattle; it was loose. He looked at it after the accident and found a chip was broken off the cover, a piece off the edge. There was a chip off the ledge and a chip off the cover. Every time anybody would step on the thing it would start to rattle. He said he went over the sidewalk “a lot of times” before the accident. He had stepped on it and heard it rattle.

John Hill testified that he looked at the hole after the accident, and that the concrete around it was in bad condition and it had a hole in the lid. The hole looked like a piece was cracked off. He looked inside the hole; the concrete was loose in the hole and the lid was broken off. He also said he had observed the condition of the manhole before the accident; had once before walked over it. He lived in the neighborhood all his life. He visited the paper stand on the corner every day. He went by or walked over the hole about seven or eight months before the accident happened. The concrete needed to be fixed, and the lid needed a new one on top of the hole. On cross-examination he said that he saw the need of a new lid seven or eight months before the accident. He could also see it needed new concrete. He could see it from the paper stand. Anybody walking along there could see it needed a new lid, as he noticed it.

John B. Henry operated a newspaper stand about fifteen feet from the hole. He testified that he had been there about three years; that he saw the hole before the accident; that there was a lamp post near there; he would sit there and automatically and unconsciously put his foot in the lid and it would rock; that was during the summer before the accident. When people walked on the sidewalk and on the hole the lid would give a rattling sound, a rattling noise. As often as anybody walked across it it would rattle. This witness also said that he reported this to the Stanton Avenue police station, which was directly across the street from his paper stand. In particular he remembered that he told Policeman John Rose that something should be done because the lid on the top of the hole was so loose somebody might fall through it. He says Rose said he was going to report it. He spoke also to other officers in the police station. They would come over to buy papers, and he would call their attention to it. He saw the hole after plaintiff had departed after the accident. He saw a few inches broken off of the surface of the top of the hole--the lid of it. There were a...