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Swenson v. City of Rockford

OPINION FILED MAY 23, 1956.

ANNA C. SWENSON, APPELLANT,

v.

THE CITY OF ROCKFORD, APPELLEE.



APPEAL from the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding. MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 24, 1956.

This was an action commenced in the circuit court of Winnebago County by Anna C. Swenson, as plaintiff, against the city of Rockford, as defendant, to recover damages for an injury to her person, sustained when she fell on June 13, 1953, while walking along a cement sidewalk in front of a grocery store on the east side of Main Street in the city of Rockford.

The issues made by the pleading were submitted to the jury, resulting in a verdict in favor of plaintiff for $15,000 and defendant appealed to the Appellate Court, Second District.

The facts, which are not in dispute, are set forth in the opinion of the Appellate Court as follows:

"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 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 store 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 purchase, 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 when 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 that 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 back 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 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." 7 Ill. App.2d 72.

The errors relied upon for reversal in the Appellate Court were: (1) the refusal of the trial court to direct a verdict in favor of defendant at close of the plaintiff's case; and, following the return of the verdict, (2) its failure to sustain defendant's motion for judgment notwithstanding the verdict.

The Appellate Court found the plaintiff guilty of contributory negligence as a matter of law and reversed the judgment of the circuit court of Winnebago County. We have granted leave to appeal to review the judgment of the Appellate Court.

The sole question presented by the record in this court is whether or not, as a matter of law, the plaintiff was guilty of contributory negligence as ...


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