Warner v. City of Chicago

• Decision Date: 05 October 1976
• Docket Number: No. 60227,60227
• Citation: 358 N.E.2d 277,43 Ill.App.3d 691,3 Ill.Dec. 110
• Parties: , 3 Ill.Dec. 110 Marion C. WARNER, Plaintiff-Appellee, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 277

358 N.E.2d 277

43 Ill.App.3d 691, 3 Ill.Dec. 110

Marion C. WARNER, Plaintiff-Appellee, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.

No. 60227.

Appellate Court of Illinois, First District, Second Division.

Oct. 5, 1976.

As Modified on Denial of Rehearing Dec. 10, 1976.

William R. Quinlan, Chicago (Daniel R. Pascale, Marsile J. Hughes, Robert Retke, Chicago, of counsel), for defendant-appellant.

Philip E. Howard, Ltd., Chicago (William J. Harte, Ltd., Chicago, of counsel) for plaintiff-appellee.

DOWNING, Justice:

Following a jury trial, plaintiff recovered a judgment in the amount of $53,996.00 against the City of Chicago (City) for damages resulting from the alleged negligence of the City in the maintenance of one of its sidewalks. On appeal the City raises the following issues: (1) is the City an insurer against accidents upon sidewalks; (2) was certain evidence improperly admitted by the trial court; and (3) was the jury verdict against the manifest weight of the evidence.

On March 26, 1965, around 9:30 a.m., the plaintiff, who resided at 1918 North Ridgeway Avenue in Chicago, left her home and walked north on the sidewalk on the west side of Ridgeway. She wore galoshes over her low-heeled shoes. Although it had snowed on the previous day, the sidewalk had been shoveled. However, fresh-fallen snow was on the sidewalk when she walked north, and she walked on a light path made by people walking on the sidewalk. Approximately one-half hour later, plaintiff, on her way home, returned walking south over the same route and following the same light path in the reverse direction. Newly-fallen, slippery snow was on the sidewalk. She stubbed her toe and stumbled over a raised part of the sidewalk. She lost her balance and fell on her right hip and wrist. ¹ She got up and hobbled to her home a few doors away. She described the sidewalk as cracked with one part higher than the other. The higher part of the sidewalk was about two inches above the lower part. She remembered talking to a city policeman after she was admitted to the hospital and testified she did not tell him she had slipped on the ice.

The plaintiff identified a photograph of a sidewalk in front of 4944 North Ridgeway as the way the sidewalk looked, without snow, on the day of the accident. She also identified on the photograph the location of a path through the snow--on which she was walking at the time of the incident--indicating that the path ran along the edge of the sidewalk on the east side closer to the street.

The photograph depicts a parkway hedge next to the east line of the sidewalk, and one of the photographs showed the particular point claimed by plaintiff to be the cause of her fall. This photograph illustrated that on that part of a slab nearest the hedge, the corner was broken off.

A Chicago police officer who interviewed her at the hospital testified the plaintiff told him that she fell at about 4954 North Ridgeway, that she did not specifically mention any defect in the sidewalk, and that he did not ask her the cause of her fall.

The trial court admitted certain photographs of the sidewalk in question after they had been identified by a witness who testified she was familiar with the sidewalk, and that the condition of the sidewalk as depicted in the photographs had been the same for ten years before the incident. The photographs did not show any snow or ice on the sidewalk. The witness further testified that she visited the plaintiff when plaintiff returned from the hospital, was told by the plaintiff that plaintiff tripped and fell, and plaintiff did not say she slipped on the ice.

The City presented evidence that in November 1970 (at the time of the trial), the sidewalk, identified on a photograph as the spot of incident, was six feet wide and had a tilt of 1 1/8 inches at the east edge to zero at the west edge, and the sidewalk was the same then as it was 5 1/2 years after the accident. Also one witness testified that since 1968 the City record shows that no complaint had been received concerning the sidewalk at 4944 North Ridgeway.

In response to certain interrogatories, the jury found that the City was negligent in the maintenance of the sidewalk which was the proximate cause of the injury to the plaintiff; that the snow and ice were not the proximate cause of the injury; and the plaintiff was not negligent in her conduct at the time of the occurrence.

The record indicates that the City filed on December 21, 1970, a post-trial motion setting forth various reasons why judgment should be entered in favor of the City notwithstanding the verdict, a new trial should be granted, or the verdict and judgment vacated and a smaller verdict entered. This post-trial motion was denied until November 29, 1973, the trial court noting that notice of filing of said motion had not been timely served on plaintiff's counsel.

It should also be noted that in assembling the record for appeal, the actual photographs admitted into evidence at the trial could not be located by the parties. By stipulation of the parties, photographs were substituted and filed with the record.

I.

In Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601, 145 N.E.2d 105, our supreme court set forth some principles which we find controlling in this case.

We commence with the fundamental proposition '* * * that the law does not exact of a municipality the duty of keeping all sidewalks in perfect condition at all times, and that slight inequalities in level, or other minor defects frequently found in traversed areas, are not actionable. Storen v. City of Chicago, 373 Ill. 530, 27 N.E.2d 53; 19 McQuillin, Municipal Corporations, 3d ed., sec. 54.80.' (11 Ill.2d at 604, 145 N.E.2d at 106.)

We next consider whether the sidewalk defect in this case presents a question of law for the court to decide, or one of fact for the jury. The supreme court said:

'The rule in Illinois, reiterated in the case law, is that a jury question on the issue of the city's negligence is presented only when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it. (Citations.)' (11 Ill.2d at 605, 145 N.E.2d...