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Swenson v. City of Rockford

SEPTEMBER 27, 1955.




Appeal from the Circuit Court of Winnebago county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Judgment reversed.

MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT. This action was brought to recover damages for personal injuries sustained by the plaintiff when she fell, on June 13, 1953, while walking along a cement sidewalk on the east side of South Main Street in front of the Galluzzo Market in the City of Rockford. The issues made by the pleadings were submitted to a jury, resulting in a verdict and judgment in favor of the plaintiff for $15,000, and defendant appeals.

There is no question raised as to the pleadings, the admission or rejection of evidence, the general instructions of the court to the jury at the conclusion of the evidence, or the amount of the verdict. The only errors relied upon for reversal are the refusal of the trial court to direct a verdict in favor of the defendant at the close of the plaintiff's case and following the return of the verdict, its failure to sustain defendant's motion for judgment notwithstanding the verdict. It is insisted by counsel for appellant that the evidence discloses no actionable negligence on the part of the city and that plaintiff, as a matter of law, was guilty of contributory negligence.

The plaintiff was the only occurrence witness. She testified that she was sixty-six years of age at the time of the accident, and only wore glasses to read and sew and did not have them on when she left her home between three and four o'clock of the afternoon of June 13, 1953, to go to the Galluzzo Grocery and Market, located at 1418 South Main Street in Rockford. The plaintiff and her husband lived at 1423 Rock Street, which was one block east of the grocery, and had lived there for ten years prior to the date of the accident. In order to reach the grocery, she went out the back door of her house and walked through an alley between a building occupied by a laundry located just south of the grocery and went around the west end of the store building on a concrete sidewalk. She testified she had traveled this course from her home to the grocery four or five times a week for ten years, and upon her first trip to the grocery, on the afternoon of June 13, 1953, she saw the crack in the sidewalk where she fell and had also observed the place where she fell "before June 13, 1953, for quite awhile." She was wearing white low-heeled shoes and, without any mishap, entered the grocery, made her purchases, and returned to her home. When she arrived home she discovered she had forgotten to purchase some article and immediately returned to the store by the same route. She testified that the weather was pleasant and it was a clear, sunny day.

After testifying that she had noticed this long crack in the cement sidewalk not only on her previous trip to the grocery that afternoon but also on other occasions, the plaintiff was then asked by her counsel on direct examination: "Did you fall down any place near a grocery store, Mrs. Swenson?" and her answer was, "Yes, I did." She was then asked: "And where did you fall?" and she replied: "When I went to the grocery store, I noticed this long crack in the sidewalk which had made the sidewalk fall down forming a ridge, and on the end of this ridge was a hunk of cement. When I went to go into the grocery store, I went to go over this ridge and my foot slipped off that ridge and I knocked my foot into that piece of cement and went off balance and fell on my right side." She further testified that after she fell she laid on the sidewalk about a minute and then got up and walked into the grocery and later walked home.

On cross-examination, plaintiff testified that at the time she fell she was walking no faster than usual and as she came around the corner of the building on her way to the store the second time that afternoon, she saw the ridge in the pavement and as she proceeded she placed her left foot on the ridge and her foot slipped off the ridge, which she estimated to be about two inches, and she fell. She further testified that she had seen this ridge before but had never stumbled there prior to the afternoon of June 13, 1953.

The plaintiff's husband, Hjalmar Swenson, testified that he was a painter by occupation and that he and his wife, on June 13, 1953, were living just across the alley from 1418 South Main Street; that he was familiar with the locality and the streets and sidewalks at that address and that he had had occasion to walk upon the sidewalk in question two, three, or four times a week for ten years prior to June 13, 1953. He further testified that there is a crevice or drop in the sidewalk there of two-and-a-half inches and identified four photographs taken a few weeks after the accident and indicated thereon the crevice he testified about, and his testimony is that this condition had existed for over two years prior to June 13, 1953. These photographs were admitted in evidence, and, when shown to the plaintiff, she indicated on each of them the location of the spot where she fell.

Mamie Galluzzo testified on behalf of the defendant to the effect that she and her husband operated the Galluzzo Grocery at 1418 South Main Street and had operated it seven years prior to June 13, 1953; that the plaintiff was a frequent visitor and patron of the grocery store, coming there three or four times every week; that on the afternoon of June 13, 1953, she came to the store, purchased some groceries and left, later returning to buy some groceries which she had forgotten; that the return trip was made about one-half hour after she bought the first groceries; and that before she came into the store the second time to purchase the items which she had forgotten, she fell. This witness further testified that prior to the time the plaintiff fell, the witness had had no occasion to notice the sidewalk in front of her store, but after plaintiff had fallen she "went out and looked at the sidewalk and saw a little bump. It was about an inch and a half or something like that. I really don't know, 'cause I never measured it. The bump was caused by the fact that the sidewalk was cracked, but I had never noticed it prior to that time."

Joseph Bruno also testified on behalf of the defendant to the effect that he was superintendent of streets of Rockford and that his records did not disclose that any report had ever been made to the city of any defective conditions in the sidewalk in front of 1418 South Main Street.

Other than the plaintiff's testimony as to the injuries she received as a result of this accident and the medical testimony, none of which is abstracted, the foregoing is a fair resume of the evidence found in this record.

In order to sustain the judgment, counsel for appellee cite Franklin v. City of Edwardsville, 4 Ill. App.2d 495; Stevenson v. Byrne, 3 Ill. App.2d 43; City of Mattoon v. Faller, 217 Ill. 273; Village of Clayton v. Brooks, 150 Ill. 97; Ashby v. Irish, 2 Ill. App.2d 9; and White v. City of Belleville, 364 Ill. 577.

In the Franklin case, the court sustained a judgment in favor of the plaintiff, who had only one leg and used two crutches in walking, when he was injured caused by a fall while traveling on a cracked and broken concrete walk when he placed his crutch on a chunk of concrete which tipped under his weight throwing his crutch out, thus causing him to fall.

In Stevenson v. Byrne, 3 Ill. App.2d 43, plaintiff, a tenant in an apartment building, was injured as she was leaving her apartment to go to work. When she reached the front door of the building she found there was no door knob on the door and she put her finger in the hole where the knob should have been, pulled at the door, and when it swung open she stepped into a hole in the cement flooring, tripped and fell through the door onto the outside landing. The court sustained a judgment for the plaintiff and held that plaintiff was not guilty of contributory negligence as a matter of law.

In City of Mattoon v. Faller, 217 Ill. 273, it appeared that the plaintiff stepped on the end of a plank of a wooden sidewalk which was out of repair and in a bad condition and plaintiff knew it was defective. When the plaintiff stepped on this plank, the other end flew up, and in endeavoring to step over that end with his other foot he lost his balance, got his foot caught on the edge of a defective plank and fell receiving serious injuries. The court sustained a judgment for the plaintiff, stating that it is well-settled law in this state that where a man knows of a defect in a sidewalk and walks thereon, his doing so with such knowledge is not negligence per se, as a matter of law, as all the law requires of a man, going upon a public sidewalk with knowledge that it is defective, and with knowledge that there is another way of going, is that he shall be in the exercise of ordinary care for his own safety. The opinion in the Faller case cited Village of Clayton v. Brooks, 150 Ill. 97, and quoted extensively therefrom.

In White v. City of Belleville, 364 Ill. 577, the plaintiff in the trial court recovered a judgment for damages for injuries sustained by her as a result of a fall on a granitoid sidewalk in the City of Belleville. It appeared that the sidewalk, where the accident occurred, had been repaired and that there was a depression in the walk extending nineteen inches north and south and sixteen inches east and west and varying in depth from two to four inches. At the edges of the break in the walk, caused by the detachment of a repaired slab from the main walk, there was a crevice sufficiently wide to permit the heel of a woman's shoe to enter. Plaintiff's testimony was that she walked across or upon the repaired portion of the walk and as she stepped down into the depression, the heel of her shoe dropped into a hole and she was thrown forward and fell upon the street. The Appellate Court held (White v. City of Belleville, 284 Ill. App. 322, 331) that the trial court erred in not directing a verdict for the city because the plaintiff had failed to prove any ...

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