Appeal from the Circuit Court of Cook County; the Hon. B. FAIN
TUCKER, Judge, presiding. Judgment affirmed.
Rehearing denied September 30, 1968.
Defendant, City of Chicago Heights, appeals from the judgment of the Circuit Court of Cook County entered upon a jury verdict in the amount of $40,000.
As grounds for reversal defendant argues that plaintiff was guilty of contributory negligence as a matter of law, plaintiff failed to prove that defendant was guilty of any negligence, the trial court erred in its rulings on evidentiary matters and in refusing to give four instructions tendered by defendant.
The evidence shows that on December 8, 1960, the date of the occurrence in question, Ashland Avenue extended north and south in the defendant City of Chicago Heights. It forms a "T" intersection with Hickory Street, an east-west street. There is no street or roadway to the south of the "T" intersection. Immediately to the south of Hickory Street a vacant lot extends for a distance of approximately 150 feet to a railroad embankment, 12 to 15 feet high, which parallels Hickory Street. There is a tree in the vacant lot, located approximately 20 to 30 feet south of the south edge of Hickory Street, and about 5 feet east of the center of Ashland Avenue. A street light located at the northeast corner of the "T" intersection is mounted on a standard approximately 25 feet high, on an "arm" which extends approximately 8 feet from the standard.
Shortly after midnight plaintiff was driving south on Ashland Avenue. The weather was cold and the streets were dry. He had not previously been any further south on Ashland than 14th Street, 4 blocks north of Hickory Street. He was driving approximately 25 miles per hour and as he approached Hickory Street he had his city driving lights on.
Plaintiff testified that as his car entered the intersection, the light from his headlights "melted" into the glare caused by the street lamp and he was unable to see that the road ended there. His automobile continued onto the vacant lot, and when he tried to swerve, he struck the tree.
There were no signs, barricades or reflectors to indicate that Ashland Avenue terminated at that point.
The parties stipulated that a proposal to erect a lamppost on the northeast corner of Hickory and Ashland was adopted by the City Council on December 14, 1959. An exhibit offered and admitted into evidence shows that defendant ordered the installation by Commonwealth Edison Company of a street light to be located at the northeast corner of Ashland and Hickory. The specifications call for a Light Unit Lumen Rating of 6,000, mast arm installation with prismatic refractor and multiple-type connection.
In his complaint as amended, plaintiff charges inter alia, that defendant was negligent in that it created a dangerous condition by improperly lighting the intersection and failing to erect signs or reflectors to warn motorists of the condition.
Defendant contends that plaintiff failed to prove that it was guilty of any negligence, and relying upon Healy v. City of Chicago, 131 Ill. App. 183, Owens v. City of Chicago, 162 Ill. App. 196, and City of Chicago v. Seben, 165 Ill. 371, 46 N.E. 244, argues that it cannot be held liable because the street light was selected, located and installed, with reasonable care, pursuant to a plan adopted and authorized by defendant acting in its governmental capacity, and no liability can result from the exercise of such governmental function unless the plan itself is shown to be grossly negligent.
We have reviewed the authorities cited by the parties and conclude that the word "plan," as used in the cases, means a scheme or program of action, such as the decision to install a street light at a designated intersection. To sustain defendant's contention would require that "plan" be defined to mean the specifications for the project, and this, in our opinion, is not consistent with the decisions of our courts of review. The error of such a construction is demonstrated in the following statement of Mr. Justice Adams in his dissent in Healy v. City of Chicago, found at page 192, "The law in this state has always been that a municipal corporation must exercise ordinary care to keep and maintain its sidewalks in a reasonably safe condition, and such being the law, it seems to me absurd that a municipal corporation may so plan and construct a sidewalk that, owing to its construction, it cannot be maintained in a reasonably safe condition; that if a person be injured by reason of a defective and unsafe sidewalk, and sues the municipality, it will be a sufficient answer to the suit to prove that it was so planned and constructed by the municipality. Such is not the law of this state."
The applicable rule is stated in Johnston v. City of East Moline, 405 Ill. 460 wherein at page 466, 91 N.E.2d 401, the Supreme Court said, "A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. (Citing cases.)" That this rule applies to the lighting of a city's streets is clearly demonstrated by the Supreme Court's statement, also found at page 466, "As early as City of Chicago v. Powers, 42 Ill. 169, the ...