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Johnson v. City of Rockford

MAY 4, 1962.

PORTER S. JOHNSON, APPELLANT,

v.

CITY OF ROCKFORD, A MUNICIPAL CORPORATION, AND TOM HARKEY, D/B/A HARKEY'S SERVICE STATION, APPELLEES, AND SINCLAIR REFINING CO., A CORPORATION.



Appeal from the Circuit Court of Winnebago County; the Hon. WM. R. DUSHER, Judge, presiding. Reversed and remanded.

WRIGHT, J.

This is a negligence action brought by the plaintiff, Porter S. Johnson, against the defendants, City of Rockford and Tom Harkey, d/b/a Harkey's Service Station, to recover damages for personal injuries sustained by plaintiff who was struck by a moving automobile as he was walking in a public street in Rockford, Illinois. The driver of the automobile which struck plaintiff is not a party to this action. The defendant, Tom Harkey, filed a motion for summary judgment and the defendant, City of Rockford, filed a motion to strike plaintiff's amended complaint. Defendants' respective motions were granted and judgments entered thereon, from which judgments this appeal is taken.

Plaintiff's amended complaint consists of two counts. Count I prays judgment against defendant, City of Rockford, and Count II prays judgment against the defendant, Tom Harkey. The essential allegations of Count I of plaintiff's amended complaint are, as follows: The defendant, City of Rockford, was a municipal corporation and had possession and control of a certain public sidewalk on the north side of 23rd Avenue, extending for approximately 100 feet east from Kishwaukee Street; that it was the duty of the defendant city to keep this sidewalk free from obstructions so that it was passable and in a reasonable safe condition for use by pedestrians; that for a long time prior to the occurrence, said sidewalk beginning at Kishwaukee Street and extending easterly for approximately 100 feet, was obstructed by an ice bank of snow piled on said sidewalk rendering the same impassable and not in a reasonably safe condition for use by pedestrians, and that said bank of ice and snow was shoveled there by Tom Harkey, operating a service station at the corner of 23rd Avenue and Kishwaukee Street; that said bank of ice and snow had remained on said sidewalk for a long period of time and that the defendant city either had notice of the same or should have had notice of the existence of the same.

On February 23, 1959, at 6:15 a.m., plaintiff alighted from a bus near the corner of 23rd Avenue and walked across Kishwaukee Street to the northeast corner of Kishwaukee Street and 23rd Avenue on his way to work; that at said time and place, said sidewalk being piled high with ice and snow rendered the same impassable and not in a reasonable safe condition. The plaintiff walked around the snow and ice to the street and walked along the side of the street and was struck by an automobile traveling in a westerly direction on said 23rd Avenue, causing plaintiff serious injuries; that plaintiff was in the exercise of due care for his own safety; that the defendant, City of Rockford, was guilty of one or more of the following negligent acts or omissions to act: (1) Allowing said sidewalk to be piled high with ice and snow and remain for a long time in said condition; (2) Allowing said sidewalk to be obstructed and to be in a dangerous and unsafe condition and to remain as such for a long time; (3) Permitted the sidewalk to be and remain piled high with ice and snow and in a dangerous condition so that the same obstructed the passage of pedestrians, although defendant knew or in the exercise of ordinary care should have known, that said condition existed and that pedestrians would be forced to walk in the street, and that said condition was dangerous to pedestrians and to plaintiff, and (4) That defendant failed to provide a safe place for the use of pedestrians. That as a direct and proximate result of the aforesaid negligence, plaintiff then and there suffered severe and permanent injuries; that within six months from the date of the occurrence, the plaintiff served the proper statutory notice upon the City of Rockford, Illinois; that plaintiff prays judgment in the sum of $50,000.

The essential allegations of Count II of the amended complaint are as follows: That at the time of the occurrence, the defendant, Tom Harkey, operated Harkey's Service Station at 2330 Kishwaukee Street in Rockford, Illinois; that said service station had a large driveway and is situated at the northeast corner of 23rd Avenue and Kishwaukee Street, and that at the time of the occurrence and for a long time prior thereto, the defendant, Tom Harkey, had shoveled the snow and ice from the driveway of said service station and piled the same on the sidewalk along the side of 23rd Avenue so that the same was obstructed, inconvenient and unsafe for pedestrians; that for a long period of time prior to the occurrence, said sidewalk beginning at Kishwaukee Street and extending easterly for approximately 100 feet, was obstructed by a bank of ice and snow so shoveled and piled on the sidewalk by the said Tom Harkey, which large bank of ice and snow on the sidewalk rendered the same impassable and not in a reasonable safe condition for use by pedestrians.

That on February 23, 1959, at 6:15 a.m., plaintiff alighted from a bus near the corner of 23rd Avenue and walked along Kishwaukee Street to the northeast corner of Kishwaukee Street and 23rd Avenue on his way to his employment; that at said time and place said sidewalk being piled high with ice and snow rendering the same impassable and not in a reasonably safe condition, the plaintiff walked around the snow and ice to the street and walked along the east side of the street and was struck by an automobile going in a westerly direction on said 23rd Avenue causing the plaintiff serious injuries. That the defendant, Tom Harkey, was guilty of one or more of the following negligent acts: (1) Obstructed the sidewalk on the northerly side of 23rd Avenue, contrary to Section 544 of Chapter 38 of Illinois Revised Statutes, which provides, as follows: "It shall be unlawful for any person to wilfully or negligently obstruct, injure or destroy or render impassable or dangerous for pedestrians . . . any sidewalk or walk as described in Section I of this Act." (2) Obstructed the sidewalk on the northerly side of 23rd Avenue, contrary to Section 27.5 of the Ordinance of the City of Rockford and, (3) Negligently piled ice and snow across the sidewalk on the northerly side of 23rd Avenue rendering the same impassable and dangerous and forcing the plaintiff and other pedestrians to walk in the street. That as a direct and proximate result of the aforesaid negligence, plaintiff then and there suffered severe and permanent injuries; that plaintiff prays judgment against said defendant, in the sum of $50,000.

The grounds for dismissal of Count I of plaintiff's amended complaint set out in the motion to dismiss filed by defendant, City of Rockford, are: That there is no duty on the part of said city to control the shoveling of snow by property owners or to render sidewalks passable and free from ice or snow; that plaintiff having been hit by an automobile in the city's street, there exists no proximate cause between the negligence of the city, if any, and the injuries of the plaintiff; and there exists no duty on the part of the City of Rockford to provide a safe place for the use of pedestrians, including plaintiff, on the east side of 23rd Avenue.

It is the theory of both defendants that the proximate cause of plaintiff's injury was not, as a matter of law, the negligence of the defendants in obstructing the sidewalk, but that it was, instead, the independent intervening act of the motorist striking the plaintiff, the negligence of the plaintiff or a combination of both.

The defendant, Tom Harkey, further contends that the trial court properly granted his motion for summary judgment for the additional reason of plaintiff's contributory negligence, as shown by the admissions contained in his counter-affidavit that he did not see the oncoming automobile until it was 12 feet from him.

Plaintiff contends that the trial judge erred in dismissing Count I of the amended complaint and by entering summary judgment on Count II of the amended complaint.

The motion and affidavit for summary judgment under Count II of the amended complaint in behalf of the defendant, Tom Harkey, states among other things, that on the day of the occurrence, the plaintiff, while walking easterly on 23rd Avenue in the City of Rockford, was struck by a westbound automobile driven by one James H. Birmingham, at a point 90 feet east from the east curb of Kishwaukee Street and 20 feet east from the east boundary of Tom Harkey's Sinclair Service Station, and at a point 10 feet south of the north curb of 23rd Avenue; and that the plaintiff, after the occurrence, told a police officer that prior to the occurrence, he was walking easterly on 23rd Avenue with his head down watching the street surface because of ice, and that he never saw the approaching car of James H. Birmingham before he was struck thereby.

The counter-affidavit of the plaintiff in opposition to the motion for summary judgment under Count II states that on the day of the occurrence, while walking easterly on 23rd Avenue in the City of Rockford, he was struck by a westbound automobile driven by James C. Wilson at a point approximately 50 feet east of the curb line of Kishwaukee Street and that he was walking at a point approximately 5 feet south of the curb line and that at said time and place, the street was slippery because of ice and he was attempting to watch his footing so as not to fall and also, from time to time, looked up for automobiles and when plaintiff saw car lights coming at him approximately 12 feet away, he was unable to get out of the way of the automobile because of the slippery footing and, at all times, he was in the exercise of ordinary care for his own safety.

In order to sustain an action for negligence, it is necessary that such negligence be the proximate cause of the injury, and the controversy here is whether the allegation of negligence in Counts I and II of plaintiff's amended complaint, when taken as true, was the proximate cause or one of the proximate causes of plaintiff's injury.

The question of what constitutes the proximate — that is to say, the immediate and direct — cause of an actionable injury to persons or property appears easy in theory, but is involved in great difficulty in its application to the facts of particular cases. The books are full of definitions of proximate cause and it has been discussed by courts from innumerable ...


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