Walter v. City of Rockford

• Decision Date: 26 September 1947
• Docket Number: Gen. No. 10152.
• Citation: 74 N.E.2d 903,332 Ill.App. 243
• Parties: WALTER v. CITY OF ROCKFORD.
• Court: United States Appellate Court of Illinois

332 Ill.App. 243

74 N.E.2d 903

WALTER

v.CITY OF ROCKFORD.

Gen. No. 10152.

Appellate Court of Illinois, Second District.

Sept. 26, 1947.

Appeal from Circuit Court, Winnebago County; William R. Dusher, Judge.

Action by Ethel Walter against the City of Rockford, for injuries sustained by the plaintiff as result of falling on a sidewalk in the City of Rockford. The jury returned a verdict for the plaintiff, but the trial court rendered judgment notwithstanding the verdict for defendant, and the plaintiff appeals.

Judgment affirmed.Wilbur E. Johnson and Stuart B. Nordquist, both of Rockford, for appellant.

Charles H. Davis and David F. Madden, both of Rockford, for appellee.

DOVE, Justice.

In an action brought by appellant, Ethel Walter, and her husband, Paul Walter, appellant sought to recover damages against the city of Rockford for injuries sustained by her as the result of falling on a sidewalk in that city. During the progress of the trial the action as to the plaintiff Paul Walter was dismissed. The issues made by the pleadings were submitted to a jury resulting in a verdict in favor of appellant, Ethel Walter, for $1000. Upon motion of the defendant, the trial court rendered judgment notwithstanding the verdict in favor of the defendant and against appellant in bar of the action and for costs. To reverse that judgment the record is brought to this court for review.

The complaint charged that the city, upon one of its main thoroughfares at the southwest corner of the intersection of East State Street and South Water Street in Rockford, permitted the surface of its cement sidewalk to be and remain in a broken, cracked, irregular, crumbled and raised condition and permitted irregularities in the elevation of the surface of adjoining sections of said sidewalk to be and remain there. In support of this charge the plaintiff, 56 years of age at the time of the trial, testified that on Saturday morning, September 9, 1944, about ten o'clock, she, in company with Mabel C. Teggie, a friend and neighbor, were walking along the south side of State Street, proceeding in a westerly direction on a concrete sidewalk and had crossed Water Street, heading west. She continued: ‘We went fifteen feet past the curb on the corner and I stepped on a rise in the sidewalk and it threw me. It twisted me around and I fell on my left hip. My toe caught on the rise * * * It was a joint between two sections of sidewalk. On the day of the injury there was a box and some boards near the place I fell. They were about five or six feet away surrounding a fresh piece of cement. I was looking west as we were walking west. We walked along naturally and were talking. The pavement was dry * * * I glanced at the sidewalk from time to time.’ Upon cross-examination she stated: ‘I could not tell which foot was stubbed-the left toe-my left foot. My left hip was injured. My left foot was stubbed because it hurt me there. I wear glasses. I wore glasses at the time of the accident and on that day. My vision is normal when I wear glasses. My vision with glasses is about as good as the average person of my age.’

Mabel C. Teggie testified that she was with plaintiff upon the occasion in question and as they proceeded west after crossing the Water Street intersection and as they were looking straight ahead the plaintiff fell on an offset or raised place on the sidewalk which was about one inch high; that she, the plaintiff, ‘seemed to catch her toe’ and fell.

Nello Lazzerini testified that he was employed at a tavern on East State Street in June 1944 and saw the crack-just a little crack-in the sidewalk where the plaintiff fell, which he estimated to be three-quarters of an inch and that from June 1944 until the time of the accident, there was no change in the condition of the sidewalk.

The foregoing is all the evidence in the record as to the condition of the sidewalk or how the accident happened. Counsel for appellant state that the sidewalk was in an uneven condition; that one slab of concrete had risen one inch higher than the true level of the walk and that the defect was caused by the rise of the slab of pavement higher than the rest of the sidewalk. Counsel for appellee state that the witnesses described the defect as an offset on the sidewalk or a raised place in the pavement about one inch high. We think a fair inference from all the evidence is that the walk was of concrete marked off into slabs or sections, that there was a crack between these sections of three-quarters of an inch and that a portion of one of the slabs was about one inch higher than a portion of the adjoining section and that plaintiff, in passing along this sidewalk on a clear, bright, September morning did not raise her left foot sufficiently high to clear this one inch raise and as a consequence she stubbed the toe of her shoe, lost her balance and fell.

Counsel for appellant contends that there is no dispute as to the facts, that the evidence disclosed a clear case of liability, that the question of due care upon the part of the plaintiff and of negligence on the part of the city are questions of fact and were properly submitted to the jury to pass upon.

Counsel for appellee state that the position of the City is that the evidence shows that the defect in the sidewalk was so slight that no careful or prudent person would reasonably anticipate any danger from its existence and therefore the City is not liable.

The Trial Court concluded as a matter of law that the plaintiff was not in the exercise of due care for her own safety and that the city was not guilty of the negligence charged. Upon this record the inquiry is restricted in this court as it was in the trial court, to a question of law, as to whether when all the evidence is considered, together with all reasonable inferences drawn therefrom, in its aspect most favorable to the plaintiff, there is any evidence tending to prove any cause of action stated in the complaint. If there is, the motion for judgment notwithstanding the verdict should have been denied as the weight and credit to be attached to it in connection with the other facts and circumstances shown are questions of fact for the jury. Langston v. Chicago and Northwestern R. Co., 330 Ill.App. 260, 70 N.E.2d 852.

In Orban v. City of Chicago, 313 Ill.App. 144, 39 N.E.2d 84, a judgment for the plaintiff was sustained where it appeared that there was a difference in level of adjoining slabs of concrete and the plaintiff stumbled and fell resulting in a broken arm. In Kuhn v. City of Chicago, 319 Ill.App. 525, 49 N.E.2d 562, it appeared that the sole defect in the sidewalk was that the entire length of two adjoining slabs of concrete were not on a level with each...