Appeal from the Circuit Court of Du Page county; the Hon. MEL
ABRAHAMSON, Judge, presiding. Reversed.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
The defendant, City of Elmhurst, appeals from a verdict and judgment in favor of the plaintiff Irene Arvidson, for $9,000, in a personal injuries suit. The trial was had before the Court and a jury. The defendant filed motions for a directed verdict at the close of the plaintiff's evidence and at the close of all the evidence, for judgment notwithstanding the verdict, and for a new trial. All were denied by the Trial Court.
The plaintiff in her complaint alleged, so far as material, that on October 20, 1950 she was walking upon a sidewalk which ran north and south on the west side of South York Street in Elmhurst; that she was in the exercise of due care for her own safety; that the defendant had control over the sidewalk and owed a duty to the plaintiff to maintain the sidewalk in a good and safe condition; that the defendant allowed the sidewalk to be and remain in bad and unsafe repair and condition, and permitted it to be and remain broken, decayed, uneven, cracked, and lower in level than other portions thereof immediately adjacent thereto; that it was permitted to remain unguarded and without any warning sign; that the dangerous and unsafe condition continued for a long space of time prior to the time of the injuries, at which time the defendant could, or, in the exercise of reasonable care, should have had notice thereof and could or should have repaired it or guarded the condition and warned the public and the plaintiff. The defendant in its answer, so far as material, denied the charges of negligence. There were originally certain other defendants besides the City of Elmhurst, namely, the owners and occupants of the real estate abutting the sidewalk, but their motions for directed verdicts at the close of the plaintiff's case were allowed, and the only matter before us now concerns the defendant City of Elmhurst.
The defendant's theory is that it was free from negligence as a matter of law; that the plaintiff was guilty of contributory negligence as a matter of law; that the plaintiff's instruction Number II was erroneously given; that the Court erroneously refused to give the defendant's instruction Number I; and that the damages are excessive. The plaintiff's theory is that the questions of negligence and contributory negligence were questions for the jury, there was no error in the instructions, and the damages are not excessive.
A review of the evidence indicates that the plaintiff pedestrian fell, while walking northwardly alone, on the west sidewalk which runs north and south in front of French Cleaners and Dyers, Inc., on South York Street, in Elmhurst, about 4:00 p.m., October 20, 1950; the weather was clear and pleasant, and it was light. York Street is a principal street running through the city; the fall occurred near Adelaide and York Streets, in the business section, though most of the stores are a few blocks north of that point. The plaintiff had parked her car on the west side of York Street adjacent to the curb, got out of the car on the driver's side and walked to the parking meter at the front of the car. There were some children waiting for her in the plaintiff's car while she was to do an errand. After she had deposited some coins in the parking meter she turned around, started out on her errand, was walking back towards or in the general direction of her car, looked toward or into the car, spoke to the children about putting another coin in the meter if she stayed longer than expected, took about three steps on the sidewalk, and had covered about one and one-half slabs of concrete when at that point she stepped with her right foot in such a manner that the heel was on a slab, to the south, of a somewhat higher level than the toe or sole and the toe or sole went down on the adjoining slab, immediately to the north, that was somewhat depressed, which caused her ankle to turn and she fell, resulting in some serious injuries to her left ankle, including a fracture. She was wearing a shoe that had a cuban heel, with a strap and buckle on the side.
The difference in level, at its maximum, between the two adjoining slabs of the sidewalk was estimated by the plaintiff and by one other witness, an employee of an abutting store nearby, at "about two inches." Apparently neither the plaintiff nor that other witness actually measured it. That other witness in fact said she did not think she'd ever got down and looked at it, and the plaintiff simply said "I think the difference in level between the slabs was about two inches." Such estimates of "about two inches" constitute the only evidence in the record of what the difference is, except such reasonable inferences as may be made from the photographs in evidence. The lower level slab, the one lying to the north, in the direction the plaintiff was walking, slanted toward the street and the difference in level progressively increased somewhat in the direction toward the street and progressively decreased somewhat in the direction toward the abutting buildings. The condition had existed for at least a year, and probably several years, before the plaintiff fell. The two slabs in question are in a part of the sidewalk immediately adjacent to the curb line. The whole sidewalk appears to be laid in such a way that there are two longitudinal north-south dividing lines between slabs, each dividing line being respectively a few feet west of the curb-line and between the curb-line and the abutting buildings. The depressed slab is so depressed only between the curb-line and the first longitudinal north-south line west of the curb. The balance of that area up to the abutting buildings appears perfectly level. And the balance of the whole sidewalk in the general region appears perfectly level and the slabs appear to be flush with each other.
The plaintiff apparently did not actually know the condition of the sidewalk before the fall, although she had been on errands about twice a month for about 6 months previously to the same place where she was going this time; nor did the City of Elmhurst apparently have actual notice or knowledge of the condition prior thereto, though it presumably had constructive notice, at least it makes no point on this appeal as to that.
The immediate area of the difference in level between the slabs was, under these circumstances, and at this time of day, plainly visible and not concealed if the plaintiff had been looking. There was no crevice, crack or break in either of the adjoining slabs at the point of the difference in levels where the fall occurred. There was simply a graduated difference in levels. There is no evidence of prior injuries to this plaintiff or other parties at and because of the particular condition of this sidewalk at this point as tending to show any common cause of several accidents to be a dangerous, unsafe condition or thing. There is some evidence that there had been no previous reports or complaints to the defendant concerning the condition of this particular sidewalk.
Some pictures of the sidewalk are in evidence. Those and the other testimony showed the one slab of the sidewalk, to the south, along the curb, adjacent to the other slab, to the north, which other slab was somewhat depressed and not on a level with the first. From such study of the pictures as it is possible for us to make it would appear that the difference in level at its maximum point, near the curb, is probably not as much as two inches, very likely less, and certainly no more, and becomes gradually lesser away from the curb. The difference in levels was evidently caused by the sinking, for some reason, of the depressed slab, after construction, perhaps because of weather or natural conditions. There is no evidence as to what the specific reason therefor was, but there is no evidence, in any event, that the slabs were originally so constructed with such a difference in levels.
The area where the accident happened apparently was not then congested, there was apparently no traffic to speak of at that point at the time of the injury. The evidence does not show that the heel of the plaintiff's shoe caught on the edge of the slab to the south or that she tripped or stumbled by reason of having the heel caught on the edge of that slab.
[1-3] The alleged obstructions or defects in the streets or sidewalks of a city, to make the municipal corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person, exercising ordinary prudence, cannot avoid danger or injury in passing them, in general, such defects as cannot be readily detected: City of Aurora v. Pulfer (1870) 56 Ill. 270. A city is not required to foresee and provide against every possible danger or accident that may occur; it is not an insurer against accidents; it is under no obligation to keep its streets and sidewalks absolutely safe for users thereof; it is required only to keep its streets and sidewalks in a reasonably safe condition for the accommodation of travelers and pedestrians who are themselves exercising due and reasonable care and caution for their own safety, and is liable only for its failure to exercise ordinary, reasonable care and prudence: City of Chicago v. Bixby (1876) 84 Ill. 82; Village of Mansfield v. Moore (1888) 124 Ill. 133; City of Gibson v. Murray (1905) 216 Ill. 589; Molway v. City of Chicago (1909) 239 Ill. 486; Brennan v. City of Streator (1912) 256 Ill. 468. The alleged defect, to render the municipality liable, must be such as could have been foreseen and prevented by it by ordinary care and prudence, it is not expected to anticipate unusual or extraordinary happenings: Storen v. City of Chicago (1940) 373 Ill. 530. The question arises in each case whether the alleged obstruction or defect is of such a character that the party using the street or sidewalk at the time in question and under the circumstances then existing, in the ordinary way and using ordinary care for his own safety, is exposed to an unnecessary and unreasonable risk; that is usually a question of fact, but it may become a question of law where there is no particular dispute about the material facts and the alleged obstruction or defect is of such a character that reasonable minds cannot differ about it: Brennan v. City of Streator, supra. The liability of a municipality to a party injured is commensurate only with the duty owing to such person at the time and under the circumstances existing when the injury was sustained; in the absence of a duty to perform some act or service for the security of the plaintiff at the time and under the circumstances existing when her particular injury is sustained there is no fault of the municipality in nonperformance so far as she is concerned, even though such duty or some such duty may be owed to her and others at different times or under different circumstances: City of Monmouth v. Sullivan (1880) 8 Ill. App. 50 (Second Dist.).
Illinois Law and Practice, Vol. 9 (Cities, Villages, Etc.), pp. 54 and 62, summarizes the principles applicable to a case of this kind:
"P. 54 In general, it is the duty of a municipal corporation to use ordinary or reasonable care and prudence to keep its streets and sidewalks in a reasonably safe condition for public travel. It must exercise a degree of care which is commensurate with the danger to be apprehended, and whether it has maintained its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, or has been guilty of negligence, is to be determined in each case by the particular circumstances. Liability to a person injured is commensurate only with the duty owing to such person at the time and under the circumstances existing when the injury was sustained.
"P. 62 In general, obstructions or defects in streets or sidewalks, in order to subject the municipality to liability, must be of such a nature that they are in themselves dangerous, or such that a person exercising ordinary ...