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Dziewatkowski v. City of Chicago

APRIL 21, 1969.

JOHN DZIEWATKOWSKI, PLAINTIFF-APPELLANT,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. NORMAN C. BARRY, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 29, 1969.

Plaintiff appeals from a jury verdict and judgment in favor of the defendant, City of Chicago, in plaintiff's personal injury action for damages based on the alleged negligence of the defendant in the maintenance of its sidewalks. Other defendants were dismissed out of the case and are not involved here. On appeal, plaintiff asserts a prejudicial trial error and improper jury instructions.

In November or December, 1959, the defendant City dug up a parkway on Thomas Street to install a new lighting system and left a mound of clay and dirt on the parkway adjoining the sidewalk. On January 12, 1960, at about 7:15 p.m., after visiting a candy store on the northwest corner of Pulaski and Thomas, plaintiff started to walk west on Thomas. It was drizzling or raining lightly, and the sidewalk was wet. He fell in the middle of the sidewalk and injured his ankle. He was unable to get up, and his hands were wet and had clay on them. A passing stranger helped him into the store and from the store to plaintiff's home. Plaintiff testified that the dirt on the parkway was close to and higher than the sidewalk, and the rain was washing it off. He saw no puddles on the parkway. The streetlights on the corner were dim, and there was "just a very little light." He had lived in the area for several years prior to the occurrence and passed by this area two days before. He had never seen clay on the sidewalk at any time before the occurrence and did not know how it got there.

The owner of the candy store, Dorothy Wolff, testified that a mound of clay and dirt had been left on the parkway after the installation of a new lighting system. On January 12, 1960, plaintiff was helped into the store, and she wiped mud off his pants leg. The evening was foggy, and after plaintiff left she looked at the sidewalk and "the concrete was alright. It was covered with clay and mud." She did not see the exact or actual place where plaintiff fell.

Arthur Gordon, defendant and owner of the building alongside of the sidewalk, testified that the parkway had been dug up by the City to install electric lights on Thomas Street in November or December of 1959. The men were working in the parkway for approximately three days. They filled in the hole and, at his request, the men stamped down the earth, after which it was a little higher than the sidewalk. Each day after the men quit working, Gordon swept the sidewalks. He didn't remember if he saw any clay on the sidewalk on January 12, 1960. He had never seen any water standing in puddles on the sidewalk after a rainfall.

Defendant's witnesses included: (1) A City engineer and technician in charge of the sidewalk division of the Department of Streets and Sanitation, who testified at length as to the inspection and maintenance of the sidewalks and streets of Chicago. He said it would be virtually impossible for the sidewalk inspectors to cover their entire districts, but they did supervise the construction of new sidewalks and investigated public complaints. He had checked the records of the Street Department and found no complaint for the sidewalk in question on January 12, 1960. (2) John Ponzio, the person who helped plaintiff into the candy store, and who lived in the neighborhood, testified that on the night of the occurrence he was walking east on Thomas Street and passed a man who was walking west. He heard a sound and turned around and saw plaintiff down on the sidewalk. He helped plaintiff into the candy store, and he had no trouble in keeping his footing. It was a warm night, and he did not recall seeing any clods of dirt on the sidewalk in the immediate area where the plaintiff fell.

Upon stipulation, a U.S. weather report for January 11 and 12, 1960, was read into the record, and it showed record-breaking rains on the 11th and 12th.

Considered first is plaintiff's contention that the jury was improperly instructed. At the outset defendant maintains that plaintiff failed to make specific objections to the questioned instructions at the conference on instructions, and that the instructions were improperly preserved in the record.

The record includes a transcript of two extended conferences between court and counsel in an effort to agree upon instructions to be given to the jury. Without further discussion we find that the instructions were finally made a proper part of the record for consideration on review. Also, we find that objections to the questioned instructions which plaintiff made during the conferences and in his motion for new trial were sufficiently specific to inform the trial court of their basis and to preserve them for review.

The first instruction of which plaintiff complains is instruction No. 16:

"You are instructed that the slipperiness of a sidewalk occasioned by rain or clay, not being accumulated so as to constitute an obstruction to travel, is not such a defect as will make a City liable for damage caused thereby."

Plaintiff contends that the statement of law contained in this instruction was specifically rejected in Graham v. City of Chicago, 346 Ill. 638, 178 N.E. 911 (1931). There the City was held liable for damages resulting from an overflow of water from the flooding of a skating rink and the court pointed out that liability must rest on the distinction as to whether or not the snow or ice causing the injury resulted from natural causes. On page 643, it is said:

"It is the generality of a situation resulting from natural causes that gives rise to the rule. Without that generality there would be no reason for the rule. There is no more cause for excusing a city from liability where damages have accrued from ice which has formed on a walk in an unnatural way, than there is to excuse it from damages when a walk has been permitted to become defective from any other cause. . . . The city's liability did not arise from the mere flooding of the sidewalk, but from its neglect to remove the ice ...


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