Appeal from the Circuit Court of Whiteside county; the Hon.
DAN H. McNEAL, Judge, presiding. Affirmed.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
The plaintiff, Lewis Roberts, brought suit against the defendants, City of Sterling and Ruth W. Geyer, for alleged personal injuries resulting from a fall through a public sidewalk in front of the premises of Ruth W. Geyer in the City of Sterling. A jury returned a verdict for $5,000 against the defendant City, but found the defendant Ruth W. Geyer not guilty. Judgments were rendered on the verdicts. Post-trial motions of the defendant City and the plaintiff were overruled. The defendant City appeals, and the plaintiff files a cross appeal from the verdict and judgment finding the defendant Ruth W. Geyer not guilty, which cross-appeal, the plaintiff says, is prosecuted only in the event the Appellate Court reverses and remands the judgment for the plaintiff against the defendant City. Motions of the defendants for directed verdicts had been denied during the course of the trial.
The complaint consisted of two counts, the first alleging that on March 16, 1957 and for a long time prior thereto the defendants City of Sterling and Ruth W. Geyer, and each or either of them, had possession, charge, control, and maintenance of a sidewalk in the City of Sterling in front of a store building designated as 110 West Third Street, Sterling, owned by Ruth W. Geyer; the sidewalk extended over premises possessed, controlled, and maintained by Ruth W. Geyer, individually or jointly with the City of Sterling; it became the duty of the defendants and each or either of them to keep said sidewalk in a good, safe condition, and to have due regard for the safety of all persons lawfully thereon; the plaintiff was in the exercise of due care for his and others safety; the defendants and each of them negligently permitted said public sidewalk to become and remain in an unsafe condition and dangerous to the use of the plaintiff and other persons using the same; that condition had existed for such a length of time that the defendants and each or either of them had notice, or by the exercise of due diligence could and should have had notice thereof and could and should have repaired the sidewalk or warned the public and the plaintiff of the unsafe condition; on March 16, 1957, the plaintiff was standing upon the sidewalk in front of the premises of the defendant Ruth W. Geyer when, without warning, the sidewalk collapsed, causing the plaintiff to fall through the walk into an area beneath the same, which area beneath was controlled and maintained by the defendant Ruth W. Geyer, thereby proximately resulting in severe injuries and damages to the plaintiff.
The second count, against the defendant Ruth W. Geyer, only, alleged that there was a public sidewalk in front of her premises beneath which was an area controlled and maintained by Ruth W. Geyer; prior to the date of the plaintiff's injuries there was a hole in the walk covered by a grating, which the defendant Ruth W. Geyer attempted to repair or replace by a cement cover; that the repairs or replacement were negligently made by the defendant Geyer, or her agent; the plaintiff was in the exercise of due care; on March 16, 1957 the plaintiff was standing on the walk over the hole which had been so repaired or covered when the cover gave way causing the plaintiff to fall through into the area beneath, proximately resulting in severe injuries and damages.
The defendant City of Sterling in its answer admitted the allegations of Count I of the complaint to the effect that on March 16, 1957 and for a long time prior thereto the defendants, and each or either of them, had possession, charge, control, and maintenance of the sidewalk, and that the sidewalk extended over premises possessed, controlled, and maintained by Ruth W. Geyer individually or jointly with the City of Sterling, and denied, so far as material, the remaining allegations of Count I. The answer of the defendant Ruth W. Geyer denied all material allegations of the complaint.
At the trial the plaintiff offered evidence; no evidence was offered by the defendants.
The material evidence, in substance, was to the effect that the plaintiff, on March 16, 1957, was employed at the Sterling Foundry as a molder. In the morning of that day he was standing on the sidewalk with his hands in his pockets immediately in front of a display window of a building owned by Ruth W. Geyer at the address indicated. The building was evidently an older type commercial building, rented as an auto parts store, apparently in the, or a, business district or area of the City. The defendant Ruth W. Geyer had owned the property since 1924. The present tenant had been the tenant for 31 years. There is a photograph in the record of another area of the sidewalk in front of the building a short ways from where this incident happened, which was stipulated to show substantially the same conditions as existed at the place where this incident occurred. The area immediately below the sidewalk where the plaintiff was standing was an excavated area, some five feet deep, which was connected with the building and used by the occupants of the building for coal and other things. There had been a grating at the point in question, and this grating had at some time past been cemented over. It would appear from the photograph that the sidewalk, including the part where the former grating had been cemented over, was not new but had probably been in existence for many years. It was at this particular point that the concrete suddenly gave way and the plaintiff fell to the bottom, injuring his leg and back. He pulled himself up out of the hole. The hole was fourteen inches wide and thirty inches long, lengthwise to the sidewalk.
The defendant City of Sterling contends that before it can be found negligent there must be proof by the plaintiff of two elements namely, that there was a defect in the sidewalk, and that the City had actual notice or constructive notice of the defect; the doctrine of res ipsa loquitur does not apply to this case; the defendant City is not an insurer for injuries sustained on its sidewalks; the verdict is excessive in amount there is no causal connection between the accident and the back injury; and the court erred in giving the plaintiff's instruction number 3. The defendant City of Sterling says in its brief that the plaintiff has proven an accident, an injury, and a lack of contributory negligence on his part, but he has presented no evidence of negligence on the part of the defendant City of Sterling which proximately caused the plaintiff's injuries, that, to prove negligence, he must show that the City of Sterling either had actual notice of a defect or upon the exercise of reasonable care could have discovered a defect, that there is no evidence that the City had any actual notice, that there is no evidence that the City of Sterling by reasonable diligence could have discovered a defect, if one existed, and that the plaintiff failed to prove that any negligence on the part of the City of Sterling was the proximate cause of the accident and injury.
On the other hand, the plaintiff contends that the doctrine of res ipsa loquitur applies to this case and was properly applied by the trial court when it overruled the City's motions for directed verdict; there was no error in plaintiff's given instruction number 3; the verdict and judgment are supported by the evidence; and they are not excessive.
[1-4] The doctrine of res ipsa loquitur is that whenever a thing, act, instrument, or object which produced an injury is shown to have been under the sole control and management of the defendant charged and concerned, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will, as to a party who is himself exercising ordinary care, be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that that injury was not due to his want of care; the presumption or inference of negligence raised by the application of the doctrine is not absolute or conclusive but is rebuttable: Bollenbach v. Bloomenthal (1930), 341 Ill. 539. This is a very ancient and salutary principle of law; it has been the established law of Illinois for many years; in cases of such incidents, where the principle applies, the duty of explanation is thrown upon those having charge of the thing, act, instrument, or object involved, particularly when information concerning the thing, act, instrument, or object itself is within the particular or peculiar knowledge of the defendant; and it has been applied in many cases, in varying types of situations, as against various defendants a few illustrative cases being: Arado v. Epstein (1944), 323 Ill. App. 194; Krueger v. Richardson (1945), 326 Ill. App. 205; Edmonds v. Heil (1948), 333 Ill. App. 497; McCleod v. Nel-Co Corp. (1953), 350 Ill. App. 216.
[5-8] It is necessary for the application of the doctrine that the defendant's control of the immediate cause of the injury be exclusive, and it cannot be invoked without some evidence or other showing tending to prove that the injury complained of was caused by someone under defendant's control, nor where there is divided responsibility: Blade v. Site of Fort Dearborn Bldg. Corp. (1927), 245 Ill. App. 484; Bollenbach v. Bloomenthal (1930), 341 Ill. 539. However, as a matter of law, the entire and complete control of the surface of this public street, including the adjoining public sidewalk, as a part thereof, and everything underneath it was vested in the defendant City of Sterling: Bolger v. Chicago (1916), 198 Ill. App. 123; in the absence of any proof specifically as to who owns the fee it is a presumption of law that the fee of a public street, including the adjoining public sidewalk, as a part thereof, is in the defendant City, although, so far as the determination of the question here involved is concerned, it is immaterial whether the fee was in the City or the abutting lot owner if in the City the abutting lot owner had no right to excavate under the sidewalk without the consent of the City and then only upon such terms as the City should impose if in the abutting lot owner he could make no use thereof inconsistent with the public use and in either event if an excavation of the kind here indicated was to be made beneath the public sidewalk it was the duty of the City to specify the kind of structure to be erected to support the surface of the sidewalk and to require its specifications to be carried out: Sherwin v. City of Aurora (1913), 257 Ill. 458. Further, the defendant City of Sterling here in its answer admitted the allegations of paragraph 1 of Count I of the complaint that, so far as material, ". . . on to-wit March 16, 1957, and for a long time prior thereto the defendants, City of Sterling, a municipal corporation, and Ruth W. Geyer, and each of them or either of them, were possessed, had charge and control of and maintained a certain sidewalk . . . that said sidewalk extended over the premises possessed, controlled and maintained by defendant Ruth W. Geyer, either individually or jointly with defendant, City of Sterling." The defendant City thereby expressly admitted, among other things, that it was possessed, had charge and control of and maintained this sidewalk. Under a former practice act it has been held to be firmly established that in a case of this character a defendant desiring to deny allegations of this type and make an issue thereon must plead specially that it was not the owner or in possession, operation, charge, control, or maintenance of the property or instrumentality which has caused an injury, and that a general plea of not guilty did not put such in issue: Chicago Union Traction Co. v. Jerka (1907), 227 Ill. 95; Bolger v. Chicago (1916), 198 Ill. App. 123; cf. Blade v. Site of Fort Dearborn Bldg. Corp. (1927), 245 Ill. App. 484. And under the present Civil Practice Act, Ch. 110, Ill. Rev. Stats., 1957, par. 43, ". . . the facts constituting any affirmative defense, . . . and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer. . . ." The defendant City having not pleaded specially i.e., having not plainly set forth in its answer that it was not the owner or in possession, operation, charge, control, or maintenance of this sidewalk, having not denied the allegations of paragraph 1 of Count I of the complaint but expressly admitted, inter alia, that it was possessed, had charge and control of and maintained the sidewalk, and the entire and complete control of this public sidewalk and everything underneath it being, in any event, vested, as a matter of law, in the defendant City, including, presumptively, the fee ownership thereof, the defendant City's control and management of the immediate cause of the injury here concerned the sidewalk was sole and exclusive.
[9-11] An action will lie against a municipal corporation for damages growing out of a neglect to perform a legal duty; it is the duty of a city to use reasonable care to keep its sidewalks in a reasonably safe condition for the use of such of the travelling public as themselves exercise ordinary care; a neglect to perform that duty, resulting in damage to a person exercising due care, will render the City liable for damage sustained; the City has an affirmative duty of observation, inspection, and inquiry to ascertain whether its such structures are in fact safe for public travel; this involves the anticipation of defects that are the natural and ordinary result of use and climatic influences; so wherever there is neglect on the part of the City to make a sufficiently frequent examination of a particular structure the City will not be relieved from liability although the defect may not be open and notorious: Sherwin v. City of Aurora (1913), 257 Ill. 458; City of LaSalle v. Porterfield (1891), 138 Ill. 114.
In Bolger v. Chicago (1916), 198 Ill. App. 123, in which certiorari was denied by the Supreme Court, as the plaintiff stepped on a manhole cover while crossing a public street an explosion underneath the manhole occurred, the cover was blown in the air, the plaintiff fell in the opening with his hands on the edge of the opening, and the cover came down on his hands, severly injuring him. The explosion was caused by ignition of gases in the chamber underneath the street which extended from manhole to manhole. The defendant City offered no evidence. It had pleaded only the general issue. There was a judgment for the plaintiff, and that was affirmed. The Court held the doctrine of res ipsa loquitur was applicable, and said, pp. 125, 126-128:
"It is a very ancient and salutary principle of law, that where one has charge or management of a thing in connection with which an accident happens, which in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of proper care; that in case of such an accident the duty of explanation is thrown upon those having charge of the thing, ...