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Shepard v. City of Aurora

FEBRUARY 17, 1955.




Appeal from the City Court of Aurora, Kane county; the Hon. WALTER R. O'MALLEY, Judge, presiding. Affirmed.


This is an appeal by the defendant, City of Aurora, from a judgment for the plaintiff upon a verdict of $1,500 recovered by the plaintiff in the city court of Aurora, on account of injuries resulting from a fall alleged to have been caused by an unsafe and dangerous condition of a public sidewalk. The defendant claims, as error, (1) the denial by the trial court at the close of the plaintiff's evidence and at the close of all the evidence of its motions for a directed verdict in favor of the defendant; (2) improper admission of certain evidence; and (3) the denial by the trial court of the defendant's motion for a new trial. The defendant made no motion for judgment for the defendant notwithstanding the verdict.

The witnesses for the plaintiff were Evelyn Clover, manager of the Neumode Hosiery Shop (the incident here having occurred just west of the entranceway thereof), Dr. Richard K. Collins, the plaintiff herself, and Jackson Shepard, her brother. The evidence of Dr. Collins and Jackson Shepard is not material to this appeal. The evidence for the defendant was a stipulation as to the plaintiff's testimony on a pretrial deposition and a stipulation as to certain physical circumstances at the scene of the accident. No witnesses testified for the defendant.

The material evidence is to the effect, in substance, that on October 29, 1951, the plaintiff was employed by the S.S. Kresge Co., as a floor supervisor and buyer, at its store in Aurora; was 44 years old, unmarried, and weighed 145 pounds; the day in question was a fair fall day and the sidewalks were dry. About 1:30 p.m., after lunch and before returning to her work, she walked to the Neumode Hosiery Shop on the north side of Fox street, just west of Fox and Broadway, and after making a small purchase there, left the store, walked south out upon the entranceway (which had a flat sloping decline of 6 1/2 inches in its entire length from the doorway to the sidewalk line, a distance of 4 1/2 feet), looked ahead and proceeded to the west, around the corner of the west show window of Neumode, and while walking on the public sidewalk, and intending to go to the next store west, called the Connie Shoe Store, caught her foot on something that threw her out in the middle of the sidewalk, severely injuring her elbow and arm. Plaintiff was wearing a "Shenanigan" shoe with a walking heel of leather about 1 3/4 inches high. Fox and Broadway is one of the busiest corners in downtown Aurora.

In the sidewalk area immediately west of the entranceway to the Neumode store, over which she walked, was a metal trap door, approximately 5 feet square, composed of two sections that open up and out, the sections being closed at the time. The metal trap door had a metal flange around it. There was a raise or elevation of about 1 1/2 inches in the northeast corner of the flange of the trap door up close to the west show window of Neumode. The raise appears to have been a gradual matter starting part way back or south along the east edge of the flange. The sidewalk in front of Neumode is 10-12 feet wide. The trap door opens into the basement of Neumode. It had, however, not been used for five years. The plaintiff had not seen the trap door or elevation therein before the date of the accident, and had not been in front of the Neumode store for a long time prior to October 29, 1951. Evelyn Clover, manager of Neumode, stated that other people had stumbled on the trap door within two months prior to October 29, 1951.

There is no positive, direct evidence as to how the accident happened. Plaintiff says that her foot got caught on something that threw her out on the sidewalk. It would seem to be a fair inference that, in passing along the portion of the sidewalk concerned her shoe did not clear the 1 1/2-inch raise in the trap door at the point in question, she tripped, lost her balance, and fell.

The defendant says, correctly we believe, that the evidence does not show that the concrete or slab, as such, of the sidewalk in the area around the trap door was broken, or in any way itself out of repair; nor does it show that the trap door itself was broken or out of repair (other than as may be reasonably inferred from the abnormal circumstance of the raised portion of the northeast corner of the flange thereof); nor is there any showing what occasioned the approximately 1 1/2-inch raise of that corner of the trap door. The defendant urges that, as a matter of law, plaintiff was guilty of contributory negligence; the defect here was trivial and inconsequential, no reasonable mind could foresee that this accident would occur, and defendant was not negligent and was under no duty to repair; the evidence of prior occurrences of other people stumbling at the trap door was not admissible; and that the verdict and judgment are contrary to the manifest weight of the evidence. The defendant very briefly and mildly suggests also there was no actual or constructive notice to it of the condition of the sidewalk, but it does not stress that argument, and we believe the record sufficiently indicates constructive notice. The plaintiff relies on testimony to the effect that in using the sidewalk she had to pass over the trap door; that the raised portion of the trap door was at the point next to the west show window; and that the raised portion thereof was a defect in the sidewalk, which was concealed from plaintiff's vision by the corner of the west Neumode display window, as she proceeded towards the Connie store next door. With reference to the raise in the trap door, upon cross-examination, she said she could not recall looking down at that particular moment, that she was looking straight ahead, but — "if I was glancing down, I probably would have seen it." The plaintiff claims the issue as to her due care was properly a fact issue for the jury; that the defect here was such that a reasonable person could foresee possible injury to a pedestrian under these circumstances while exercising reasonable care; and the evidence of prior occurrences was admissible and the defendant waived any alleged error as to such admissibility by making only a general objection, which was overruled.

[3-5] After reviewing the record in this case, we believe the jury could properly find, under all the circumstances, that the plaintiff was not guilty of contributory negligence as a matter of law. She had no reason to suspect the presence of the raised portion of the trap door before she stepped on it. Although required to use ordinary and reasonable care to avoid danger, a pedestrian is not obliged, as a matter of law, to keep his eyes glued to a sidewalk in search of defects and dangerous places, but may normally assume it is in a reasonably safe condition for travel: Graham v. City of Chicago, 260 Ill. App. 590, affirmed 346 Ill. 638; City of Chicago v. Babcock, 143 Ill. 358. Whether a plaintiff is guilty of contributory negligence is ordinarily a question of fact for a jury. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence: Ziraldo v. W.J. Lynch Co., 365 Ill. 197. Such is not the case here.

It appears that the plaintiff was walking at a normal rate of speed, not hurrying or running; she was looking straight ahead, evidently not inattentive or heedless to what she was doing and where she was going; that the particular place she was walking is a regular part of the traveled public sidewalk and she had a right to be where she was. Though she was not looking down at the precise moment of the incident, she was not necessarily required, as a matter of law, to be looking down at that precise moment, although that circumstance might properly be considered, with all the other relevant circumstances in evidence, by the jury in reaching its determination as to due care. The particular path of travel she was following would seem to be normal for a westbound pedestrian, i.e., towards the right or show window side of the sidewalk, particularly so for a party coming out of one store and proceeding to the next store immediately west. The jury could find that a party under those circumstances would not normally, and certainly not necessarily, swing out a considerable distance into the sidewalk, and perhaps around the trap door, but might quite properly walk rather close to the show window side of the sidewalk and across the portion where the trap door was. She was not loaded down with a lot of heavy or bulky bundles or parcels in her arms which might have impeded her progress, impaired her vision, or distracted her attention.

Upon the record, as to the facts, our inquiry and that of the trial court in regard to the defendant's motions for a directed verdict, is whether, as a matter of law, when all the evidence in favor of the plaintiff is considered, together with all reasonable and legitimate inferences and intendments to be drawn therefrom, in its aspect most favorable to the plaintiff, and when considered to be true, is there any evidence tending to prove the essential elements of the alleged cause of action and might the jury reasonably have found for the plaintiff: Ziraldo v. W.J. Lynch Co., supra; White v. City of Belleville, 364 Ill. 577.

We think there is substantial evidence in support of the charge that an unsafe condition of the public sidewalk, brought about by this raised edge of the flange of the trap door, did exist at the point in question where the accident occurred, that there is evidence tending to prove the essential elements of the alleged cause of action, and that the jury could reasonably have found for the plaintiff. There is evidence on behalf of the plaintiff which, standing alone, entitled her to have the cause submitted to a jury: White v. City of Belleville, supra.

In City of Chicago v. Babcock, 143 Ill. 358, at page 363, the court said:

"A person passing along a sidewalk in a City is required to use ordinary and reasonable care and diligence to avoid danger, but what is such ordinary and reasonable care depends upon the circumstances of each particular case, and is a question of fact for a jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his eyes or her eyes constantly fixed on the sidewalk in search for possible holes or other defects, would be to establish a manifestly unreasonable and wholly impracticable rule."

We think Walter v. City of Rockford, 332 Ill. App. 243, one of the principal cases referred to by the defendant, is clearly distinguishable from this case as to the facts. The principles of law and their application to the facts of that case were entirely correct. The present case, however, is not a situation simply of some irregularity, perhaps slight, and perhaps oft occurring, in the surface of a public sidewalk, or of a difference simply in levels, sometimes caused by weather or similar circumstances, between two adjoining portions or slabs or blocks of a sidewalk. In Walter v. City of Rockford, supra, the plaintiff apparently had a clear, unobstructed view of at least 15 feet of the claimed defect in the sidewalk, there was a box and some boards surrounding a fresh piece of cement a few feet from the claimed defect which should have called her attention to the circumstances, and she was walking with a friend and talking as she walked along. The plaintiff here had no such view, was not put on notice, and was walking alone. Nor do we believe the other Illinois cases cited by the defendant apply to the case at bar. In Powers v. City of East St. Louis, 161 Ill. App. 163, there were involved two adjoining segments of a sidewalk having a difference in levels between them of 1 to 3 inches and having a bevelled edge between the two levels; the difference in height of the segments could be easily seen by a pedestrian for 50 feet or more; there was nothing inherently dangerous therein; there was no concealed defect; and the plaintiff had just prior to the accident and at another point about 25 feet away stepped down on the same walk from the same higher level to the same lower level. In Fleming v. City of Rockford, 303 Ill. App. 224, the plaintiff was walking along with her daughter, the daughter was pushing a baby buggy, the plaintiff was keeping her eyes on a car being pushed along a filling station driveway, because of fear it would strike the buggy, she did not look at the sidewalk, and she was guilty of contributory negligence as a matter of law. In White v. City of Belleville, 284 Ill. App. 322, there was a depression in the sidewalk at a point where the walk had been previously broken and repaired and there were some crevices left by detachment of the repaired part from the rest of the walk; a judgment for the plaintiff was reversed without remanding in the Appellate Court on the basis there was no negligence of the defendant; but this was reversed in the Supreme Court, 364 Ill. 577, the court holding that a directed verdict for defendant would not have been proper, and that it was a jury case; the Supreme Court remanded to the Appellate Court to consider other errors, if any, and either affirm or reverse and remand for a new trial; subsequently, 290 Ill. App. 616 (abst.), the Appellate Court affirmed the judgment for the plaintiff. We have heretofore referred to the Supreme Court opinion, 364 Ill. 577, and White v. City of Belleville, under the circumstances, is authority for the plaintiff's rather than the defendant's position here. City of Chicago v. Norton, 116 Ill. App. 570, involved simply a difference in level of 2 1/2 to 3 inches between two adjoining flagstones in a sidewalk, and the court said that at that ...

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