Appeal from the Circuit Court of Cook County; the Hon. ANTHONY
J. MENTONE, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
This action was brought to recover damages caused by the alleged negligence of defendant in leaving a cable trailer cart and equipment overnight on the public sidewalk at the site of a repair job. The jury awarded the sum of $11,600 to plaintiff, and defendant appeals, presenting the following contentions for review: (1) The court should have directed a verdict in favor of defendant since plaintiff was guilty of contributory negligence as a matter of law *fn1 and (2) The jury was improperly instructed.
At the time of the occurrence, plaintiff was employed as a bartender. After working the afternoon shift, he closed the tavern at about 1:30 or 2:00 a.m., January 3, 1960, and departed with a woman patron. They drove to the Carling Hotel at 1512 North LaSalle Street. He parked the car about five feet north of defendant's cable trailer cart, which was located on the sidewalk about a foot and one-half from the curb. He and his woman friend passed this cart on their way to the hotel. At 4:00 a.m. plaintiff and the woman emerged from the hotel and he placed her in a cab. He then turned and walked north toward his car.
He passed the trailer cart by walking into the space between the curb and the cart and tripped over some projecting equipment and fell down. As a result of this fall, he sustained a fracture to his right ankle.
Plaintiff identified four photographs as truly and correctly depicting the condition and location of the trailer cart and the equipment around it as he saw it on the morning of the occurrence, and also the location of his car in relation to the trailer cart. These photographs depict that two angle-bar-like legs about an inch in diameter, of collapsible metal "men working" signs were projecting at least nine inches into the space between the cart and the curb and about 5 to 10 inches above the sidewalk.
The right wheel of the trailer cart was about a foot and a half from the curb and there was space to walk between the cart and the curb. After he had fallen, a passerby observed his predicament and summoned the clerk from the hotel who assisted plaintiff into the hotel. A cab was called, because plaintiff could not drive, and he was removed to a hospital.
The woman who accompanied him to the hotel that morning entered the tavern at about 10:00 p.m. Between that time and the time they left the tavern, she was drinking at the bar, but plaintiff testified that he consumed only six bottles of water.
There was also medical testimony and evidence adduced pertaining to the issue of damages.
On the morning of the occurrence plaintiff telephoned his brother Nick and advised him that he had sustained injuries to his ankle and leg when he fell over defendant's equipment in front of the Carling Hotel and asked Nick to pick up his car. Nick and a friend went to the scene and took photographs that morning which were introduced into evidence.
A police officer for the City of Chicago in pursuance of his duties was directed to visit the Henrotin Hospital to interview plaintiff and complete an accident report. He entered the emergency room and saw plaintiff on an emergency table, but was not successful in communicating with plaintiff. He noticed a strong odor of alcohol on plaintiff's breath and in trying to determine what had occurred, he noticed that plaintiff's answers were incoherent and slurred. He advised the nurse that he would return at a later time and went to the scene of the accident to view the physical conditions. At the time he observed the scene, everything seemed to be in normal order around the trailer cart, but inasmuch as it did not enter into his investigation at this time he did not pay much attention to it. It was still dark, but the street lights were on.
At that time, he was not aware the defendant's property was involved in the accident. It could not be determined whether the difficulty in communicating with plaintiff was due to plaintiff's physical distress or due to an alcoholic condition. The police report reflects that plaintiff had been drinking, but does not reflect that plaintiff was intoxicated or drunk. The witness testified, however, that in his opinion plaintiff had an excess of alcohol to drink.
The manager of the hotel testified that he found plaintiff leaning against the desk, very flushed, very excited and slurred of speech. He was advised by the desk clerk that plaintiff had fallen over some telephone equipment, and was in severe pain. The witness went out to inspect the telephone equipment. It was just south of the north end of the hotel property. The sidewalk is about 20 feet wide. His examination of the equipment revealed it was neatly piled and testified that plaintiff's four photographic exhibits did not truly and correctly depict the trailer cart and equipment. The witness also testified that being a layman and not a medical authority, he could not express an opinion as to whether plaintiff was intoxicated or not, except plaintiff was flushed, slurred of speech and said he was in pain.
A splicing foreman for defendant testified that the cable trailer cart is about four feet tall and seven to seven and a half feet long. The sidewalk where the instant cart was located was between 15 and 18 feet wide. The car was used for storing tools, equipment and material. Anything that was too large to place in the cart was placed alongside and chained to the cart. The cart and equipment were located at the scene because the defendant was engaged in some underground transfer work on LaSalle Street. On January 4, 1960, when he went to the jobsite, the desk clerk at the Carling Hotel advised him of plaintiff's falling over defendant's equipment. The witness, out of curiosity, examined the ...