Appeal from the Circuit Court of Cook County; the Hon. ELMER
N. HOLMGREN, Judge, presiding. Judgment reversed and cause
remanded for a new trial.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
The plaintiff, James E. Healy, Jr., brought this action against the City of Chicago to recover for damages sustained as a result of the alleged negligence of the defendant. The accident occurred in December, 1958, and trial was held in the latter part of 1965. After trial, a jury returned a verdict in favor of plaintiff, assessing damages at $20,000, and judgment was entered thereon. Defendant's post-trial motion was denied, and it appeals.
On appeal, the City contends that as a matter of law it was not negligent and that plaintiff was guilty of contributory negligence; that the trial court erred in refusing to admit into evidence a certain defendant's exhibit; that the court erred in allowing into evidence a portion of a certain plaintiff's exhibit and in making certain rulings attendant to that exhibit; that the jury was erroneously instructed; and finally that the damages were excessive. The evidence presented at trial is as follows.
The plaintiff, the only occurrence witness, testified that about 3:00 a.m. on December 10, 1958, he was injured as a result of a fall on the northeast corner of Belmont and Central Avenues in Chicago. He left his home before midnight to visit a friend who operated a restaurant near Belmont and Harlem Avenues. Plaintiff intended to give the owner of the restaurant some advice which he had requested concerning menus. After stopping for coffee, he took public transportation to the restaurant, but found that it was closed. After waiting a half-hour he was returning home by bus when he saw a cab and alighted from the bus at the intersection of Belmont and Central. It was a cold night, and there had been a six-inch snowfall the previous day. There were no other persons present, and the intersection was well-lighted. Plaintiff crossed to the northeast corner, stepped on the sidewalk and started walking toward the curb to hail the cab. At that point he tripped over a crack in the sidewalk with his right foot, and then slid on some snow and ice while trying to regain his balance. He did not notice that the sidewalk was cracked until after he fell, and he estimated that the elevation of the crack was about two inches. After the fall, he entered the cab and went home. The condition of his ankle worsened, and on the following day he went to the Cook County Hospital. Surgery was performed on his fractured ankle and he was confined to the hospital until January 17, 1959. His ankle was still painful at the time of trial. He was 36 years of age and unemployed at the time of the accident. On cross-examination, he testified that an intern took his personal history at the time of his admission to the hospital. When asked by counsel for the City if he had told any member of the staff that he had slipped on the snow and ice, plaintiff stated: "It might have been part of what I told them."
Harold Shields testified that he was familiar with the intersection in question, and that plaintiff's photographs correctly portrayed the condition of the sidewalk in question. He further testified that there was a crack in the sidewalk approximately two and one-half to three inches high.
Doctor Leo Quinn testified for the City that he was an intern at the Cook County Hospital in December, 1958. He further testified that part of his duties consisted of taking histories from patients admitted to the hospital with fractures. This information ordinarily would be obtained from the patient himself. At trial, he did not independently recall taking a history from the plaintiff, although he recognized him as a past patient. He was shown the hospital record and after reading it, had no independent recollection of what it contained. However, he recognized the handwriting on the history sheet as his own, and testified that he had obtained the information from the plaintiff and recorded it on the history sheet. Defendant offered the history sheet in evidence, and the court sustained plaintiff's objection to its introduction. On cross-examination the doctor testified that he did not believe it possible that he could have received the information contained in the history from anyone other than the patient, but upon further cross-examination stated that it was possible that he received the information from someone other than the patient.
Officer Edward Anderson of the Chicago Police Department testified that he recognized the handwriting on a statement taken from plaintiff as his own, but stated that he had no independent recollection of the document. The statement was taken from the plaintiff at the Cook County Hospital. Officer Anderson testified that such statements were taken by the police whenever someone was injured on City property. He further testified that on the statement, the place of accident was set forth as North and Cicero Avenues in Chicago. The defense then rested.
Plaintiff called as a rebuttal witness Officer James Jack of the Chicago Police Department who had also taken a statement from the plaintiff. After counsel for plaintiff had asked Officer Jack a few preliminary questions, a conference was held by court and both counsel outside the presence of the jury. There the court ruled that the police officer could not be called by plaintiff as an adverse witness under section 60. In the presence of the jury, counsel for plaintiff withdrew the police officer as a witness "for a moment," and called Mr. Donegan, counsel for the defendant as his next witness. Officer Jack was not recalled by plaintiff. Defense counsel was called as a witness for the purpose of authenticating the statement taken from plaintiff by Officer Jack. After the statement was authenticated by counsel for the City, and over the objection of the City, the court allowed a portion of that statement into evidence, that part which recited that plaintiff had stated to Officer Jack that the accident occurred at Belmont and Central. The City then requested that the balance of the statement given to Officer Jack be admitted into evidence, but the court sustained plaintiff's objection. The City next requested leave to reopen its case in order to call Officer Jack as its witness. The court informed the City that it might call Officer Jack in surrebuttal, but would not allow the City to reopen its case in chief.
Defendant first contends that, assuming plaintiff's evidence to be true, the defect in the sidewalk was so minor that the City was not liable as a matter of law. While we agree with defendant that a municipality is not a guarantor of a pedestrian's safety, and that it need exercise only ordinary care in keeping its sidewalks in a reasonably safe condition, nevertheless plaintiff has presented enough evidence in the instant case to make the issue of negligence on the part of the City one of fact for the jury. In Arvidson v. City of Elmhurst, 11 Ill.2d 601, 145 N.E.2d 105 (1957), the plaintiff fell because of a two-inch inequality between two adjoining slabs of sidewalk. The Supreme Court concluded at page 609: ". . . it cannot be found that all reasonable minds would agree that the two-inch variation and the height of the adjoining slabs of the sidewalk near the curb was so slight a defect that no danger to pedestrians could reasonably be foreseen." Likewise, in the case at bar we are not prepared to say that a variation of between two and three inches is so minor as to absolve the City as a matter of law.
Nor can we agree with defendant that plaintiff was guilty of contributory negligence as a matter of law. In Swenson v. City of Rockford, 9 Ill.2d 122, 136 N.E.2d 777 (1956), on a clear sunny day, the plaintiff fell on a defective sidewalk about which he had previous knowledge. The court held the plaintiff's conduct was not contributory negligence per se, and there could be a recovery for damages. Here too, the issue as to plaintiff's exercise of care was a question of fact for the jury.
However, the City argues that the trial court committed reversible error in refusing to allow into evidence a medical history sheet taken from plaintiff in which plaintiff stated that he fell as a result of slipping on the ice.
When a witness testified that he made a written report or memorandum of the occurrence at or near the time of its happening, but upon examination of the writing he has no independent recollection of the matter contained thereon except that he knows that it is correct, then such report is admissible in evidence. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338, 81 NE 392 (1907).
In People v. Harrison, 384 Ill. 201, 51 N.E.2d 172 (1943), the court stated at page 206:
"The rule is that where there has been a writing made by a witness, or made at his direction at the time of the fact, for the purpose of preserving the memory of it, if at the time of testifying he can recall nothing further than that he had accurately reduced the ...