Trojan v. City of Blue Island

• Decision Date: 24 April 1956
• Docket Number: Gen. No. 46801
• Citation: 10 Ill.App.2d 47,134 N.E.2d 29
• Parties: Louise TROJAN, Appellee, v. CITY OF BLUE ISLAND, a municipal corporation, Appellant.
• Court: United States Appellate Court of Illinois

Page 29

134 N.E.2d 29

10 Ill.App.2d 47

Louise TROJAN, Appellee, v. CITY OF BLUE ISLAND, a municipal corporation, Appellant.

Gen. No. 46801.

Appellate Court of Illinois, First District, Second Division.

April 24, 1956.

Paul R. Schreiber, Blue Island, John Dooley, Evanston, of counsel, for appellant.

Kamin & Gleason, Chicago, for appellee.

SCHWARTZ, Judge.

This is an appeal from a judgment on a verdict for $7,500 for injuries sustained by plaintiff as the result of a fall on a sidewalk. Defendant relies on two points:

(1) That the evidence does not disclose actual or constructive notice to it of the existence of the defect complained of; and

(2) That plaintiff was not in the exercise of due care for her own safety.

A third point relating to error in instructions was waived upon oral argument.

The accident occurred at 3:30 p. m., January 26, 1951, on a sidewalk in front of a hospital in Blue Island. Plaintiff and her son had gone to the hospital about 2:00 p. m. to visit her husband. After leaving the hospital they walked on the sidewalk a few feet and plaintiff then stepped into a hole caused by the breaking or disintegration of the cement walk and sustained the injuries complained of. She was taken back to the hospital immediately and given the necessary care and attention. As no complaint is made with respect to the damages, there is no occasion to detail the injuries.

The hole in question extended from the street edge two-thirds to three-fourths of the way across the sidewalk and was described by plaintiff's son as being from 10 to 14 inches wide, tapering down to 4 or 5 inches, about 4 or 5 inches deep, and 3 1/2 to 4 feet long. Thus, it was a defect of substantial size and character and readily discernible. The only evidence offered by defendant was that of two police officers. Both said they had never examined the sidewalk before the accident; that they went there on the same day, after the accident, but could not see the defect because shortly after the accident a fall of snow covered the hole. According to the testimony offered by plaintiff, a retaining wall for the hospital grounds adjoins the sidewalk at the point where she fell and that portion of the sidewalk immediately adjoining the wall is so pitched as to afford some drainage. Leakage therefrom can, of course, produce ice. There was ice on the sidewalk near the retaining wall and as plaintiff, who was 60 years old and was walking with her son, reached the point where the ice was, her son saw the ice, took her arm and drew her closer to the street side of the walk to bypass it. A few seconds later she stepped into the hole.

Plaintiff's son testified that from his observation he would estimate that the hole had been there for a period of one to two months. He admitted it was hard to tell, but felt it was there at least a month. The question presented to us is whether this was adequate proof that the city had notice of the defect in time to remedy it. On this point it should first be noted that the hole was, as we have said, substantial and readily discernible. Proof of noticeto a city of a dangerous condition such as this can seldom be made by evidence of direct communication with city officers prior to the accident. If the city had any such direct notice, the injured person would not be likely to know how to get such evidence. Hence, courts have had the problem, from the inception of these cases, of determining what, in justice to litigants, would be adequate proof of notice to a city. They have taken into account conspicuity and length of time as evidence on this issue.

In Baker v. City of Granite City, 311 Ill.App. 586, 37 N.E.2d 372, 373, a witness for the plaintiff testified that a flange or rim of a catch basin was badly corroded and that the lower edge of the cover was worn off "as thin as a piece of cardboard". This the court held was proof that the defect had been there a sufficient length of time to constitute constructive notice to the city of its existence. The court took into account the fact that no inspection was made of the cover from the time it was installed until after the accident six months later. The court also affirmed the general rule that the issue is for the jury to decide.

In City of Taylorville v. Stafford, 196 Ill. 288, 63 N.E. 624, affirming 99 Ill.App. 418, the plaintiff was injured by stumbling over a staub (stake) driven into the ground to fill a hole in a sidewalk. The stake had worked its way two inches above the rest of the walk. The court permitted the plaintiff to show that there were other stakes in the neighborhood which had worked up above the walks. This, it was held, was adequate to prove notice.

In Shepard v. City of Aurora, 5 Ill.App.2d 12, 124 N.E.2d 584, 586, a metal trap door in a sidewalk appears to have been the cause of a fall. It had a flange around it with a raise of about 1 1/2 inches in the northeast corner which 'appears to have been a gradual matter starting part way back or south along the east edge of the flange.' The testimony showed that other people had stumbled on the trap door prior to the accident. While there was no...