Schwartz v. City of Chicago, Gen. No. 50045
| Decision Date | 18 October 1965 |
| Docket Number | Gen. No. 50045 |
| Citation | 63 Ill.App.2d 416,211 N.E.2d 477 |
| Parties | Rose SCHWARTZ, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, Paul Manaster and Jeanette Manaster, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Block & Levy and Alvin R. Becker, Chicago, for plaintiff-appellant.
Raymond F. Simon, Corp. Counsel, City of Chicago, Sidney R. Drebin, Allen Hartman, Chicago, of counsel, for defendant-appellee, City of Chicago.
Levin & Upton, Chicago, Roland C. Upton and Henry H. Caldwell, Chicago, of counsel, for defendant-appellee, Paul Manaster.
Plaintiff Rose Schwartz appeals from a directed verdict at the close of all the testimony in favor of defendants, City of Chicago, and Paul and Jeanette Manaster. She had sued for personal injuries allegedly occasioned by the negligence of the City of Chicago in the maintenance and possession of a 'defective driveway' and on the defendants, the Manasters, in the construction, maintenance and possession of a driveway traversing a public sidewalk adjoining the gasoline station at the northwest corner of Cornelia and Halsted Streets, commonly known as 3500 N. Halsted Street in the City of Chicago.
Plaintiff, who was 64 years of age, resided at 806 West Roscoe Street, and on February 17, 1960 left home at approximately 8 a. m. to go to a friend's house at Addison and Pine Streets, as she had done many times before. As she left her house she noticed patches of ice on the ground in the area. She wore low heels and carried a purse as she proceeded on the west side of Halsted Street toward Cornelia Avenue, one block north of Roscoe. As she crossed Cornelia she noticed people 'waiting for the bus, right near the bus stop.' She went past the people. She said she then slipped on the ice and fell. When asked if she noticed anything unusual about the driveway she said 'It was rough ice, rough and slanting.' The driveway was slanting toward the Halsted Street side. She was taken to a hospital and given treatment. On cross-examination plaintiff did say 'just fell' when she got to the driveway. She remembered having at some time told one of the hospital personnel that she fell in the public street. Her attending physician stated that he had a notation in the medical history as of February 18, 1960 that she fell on the street.
Defendant, Paul Manaster, called by plaintiff as her witness, stated that in January and February of 1960 he was personally in charge of the gas station and the snow removal from the premises. Whenever snow fell he and his helper first removed the snow from the driveways and sidewalk and then cleared the station premises. They would pile the snow on the premises around the telephone booth and the oil curb signs and when they got over to the driveway would put the snow near the fence, as a rule. At the southeast corner of the station is a pole around which is built a frame neon or electric sign and 'we usually packed some snow around there well out of the way on our own property which does not interfere with pedestrians, does not interfere with the cars pulling in or out of the gas station'. Regarding snow from the southeast driveway, he stated that they piled some of it around the signs 'from one side of the driveway to the other side'. If there was any ice they chipped it off with ice scrapers and if that didn't help, they put sand and salt on it. He did not recall the weather conditions or what he did to the driveways on February 16 or on the 17th (the day of the occurrence).
The driveway in question was originally constructed in 1938 by Manaster pursuant to a construction permit issued by the city. Some time in 1951, as part of an improvement program connected with the widening of Halsted Street, the city caused a new driveway to be constructed independently of any approval or consent of the Manasters. The proof indicated that the structural condition was the same at the trial as at the time of the occurrence and had been so since 1951. An engineer called by plaintiff testified that he measured the driveway in question and that there was a varying slope from the property line as the high point to the street curb--the low point. The driveway ran parallel to Halsted Street for about 38 feet. It was 6 feet wide from lot line to curb. Five feet north of the Cornelia sidewalk there was a vertical drop or slope of 6 7/8 inches, 10 feet north of the Cornelia sidewalk, a slope of 7 1/8 inches and 20 feet north of the Cornelia sidewalk, a slope of 6 3/4 inches.
Plaintiff, in her complaint, charged the city with having 'wrongfully and negligently allowed a portion of the * * * sidewalk * * * to become and remain in a dangerously unsafe condition and repair, the surface of said public way being cracked, broken, depressed and covered with snow and ice and other debris'. And as an amendment to this charge she alleged that the city 'wrongfully and negligently allowed or caused to be issued a permit for the construction of a certain driveway adjacent to the premises commonly referred to as 3500 North Halsted Street, Chicago, Illinois, contrary to the provisions of Section 858 of the Municipal Code of Chicago * * *.'
Plaintiff alleged that Paul Manaster maintained a driveway traversing a public sidewalk and connecting the place of business with the street; utilized the same as a means of ingress and egress for his customers and was under a duty to utilize it in such a manner that it did not become hazardous and unsafe for individuals using the sidewalk. She charged that he 'wrongfully and negligently constructed it in such a negligent and improper manner that its surface was pitched and sloped to such an extent creating a hazardous condition for persons using the public sidewalk and * * * wrongfully and negligently failed to maintain the said driveway in such a negligent and improper manner it became cracked, broken, depressed and covered with snow and ice thus creating a hazardous condition * * *.' Plaintiff further alleged that Paul and Jeanette Manaster, as owners of the property, were similarly liable. 1 Although plaintiff says this is not a snow and ice case, she argues that this driveway, which the City possessed, especially when covered with patches of ice, created a hazardous condition to pedestrians which the City did nothing to correct. Since a duty is imposed by law to maintain all driveways abutting a public sidewalk, she contends it is reasonably inferable that the City knew or should have known of the dangerous condition as it has existed at least since 1951.
Section 858 of the Code was the predecessor to the present Section 33-20 and among other things provided that:
No driveway shall be so constructed as to prevent free and unobstructed passage on, over or across the same, or in such a manner as to interfere with the proper drainage and safe grading of the streets. No driveway shall be constructed across intersecting sidewalks. Gradual approaches thereto shall be made from the grade of the driveway. The slope of any driveway and the approaches thereto shall not exceed one inch vertical to one foot horizontal nor be less than 1/4 inch vertical to one foot horizontal in any direction, except that the slope from street curb line shall not exceed one inch vertical to one foot horizontal * * *. (Emphasis ours).
Plaintiff here contends that sufficient facts were adduced as to the dangerous...
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