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Stauf v. City of Rockford

ILLINOIS APPELLATE COURT — SECOND DISTRICT


NOVEMBER 15, 1971.

EDITH STAUF, PLAINTIFF-APPELLEE,

v.

CITY OF ROCKFORD ET AL., DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

The plaintiff brought a two count complaint separately charging each defendant with negligence. The jury found the defendant, Rockford Blacktop Construction Company (hereinafter referred to as Rockford Blacktop) not guilty but found the City of Rockford (hereinafter referred to as City) guilty and assessed damages in the amount of $1,000. From a judgment entered on the verdicts, the plaintiff and defendant City appeal.

Plaintiff contends that the not guilty verdict as to Rockford Blacktop was against the manifest weight of the evidence. The City, in its appeal, claims that the plaintiff failed to prove negligence and that the proximate cause of plaintiff's injuries was not the result of any act on its part.

Rockford Blacktop was engaged by the City to resurface four blocks of State Street which included the pedestrian crosswalk at the intersection of State and Main Streets. There were no barricades or signs prohibiting pedestrian traffic in the crosswalk during the period in question.

Plaintiff, while walking in a southerly direction on the east side of Main Street, and upon the freshly laid blacktop of the crosswalk, had her attention drawn to a truck making a right turn onto State Street. When the truck was about five feet from her, she, believing that she would be struck, began to hurry. This occurred when she was two-thirds of the way across the street. At this point, the newly laid blacktop ended, creating a one and one-half to two-inch drop in the level of the street. She fell and was injured. These facts are not converted.

The following testimony, however, was contradictory. Plaintiff testified that the truck making the turn was large, red in color with white lettering upon it, loaded with road-surfacing material and was a Rockford Blacktop truck. She further testified that it appeared the truck was about to hit her. However, a Rockford Blacktop driver testified that he was sitting in a truck parked at the intersection facing west toward the crosswalk; that he observed the truck which turned the corner; that it was not a Rockford Blacktop, but a Mueller-Pinehurst truck. This driver and his foreman testified that their trucks had to back into State Street in order to deposit their load into the blacktop spreader. (The truck in question was not backing up.)

• 1, 2 For a jury's verdict to be held to be against the manifest weight of the evidence (especially when such verdict is founded upon contradictory evidence), an opposite conclusion must be clearly evident. (Rogall v. Kischer (1971), (Ill. App.3d) 273 N.E.2d 681, 686.) We do not find an opposite conclusion clearly evident in this case and therefore the judgment of the trial court as to the defendant Rockford Blacktop is affirmed.

• 3 As best we can determine from the City's briefs, it is attacking, on two grounds, the judgment entered against it. First, it admits that the two-inch drop in the street level existed but claims that it was not negligent in creating the same because the condition was only temporary and not unreasonably dangerous. Whether the City was guilty of a negligent act was a question of fact for the jury to determine. See Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601.

Second, the City argues that even if it is guilty of committing a negligent act, this negligence was not the proximate cause of plaintiff's fall. The City contends that it only created a condition which made the injury possible but that the act of the truck bearing down upon the plaintiff caused her to hurry and fall. This, it is claimed, was an intervening, efficient cause which broke the causal connection between the City's wrong and the injury. It is urged that, as a matter of law, the proximate cause of the injury was the truck being driven into the crosswalk.

• 4, 5 It is well settled that, although a person may be guilty of committing a negligent act, no liability attaches unless it is proven that the negligent act was the proximate cause of the injury suffered. Most simply stated, this means "the injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur." Neering v. S.C.R.R. Co. (1943), 383 Ill. 366, 380.

• 6 There can be more than one negligent act which creates the proximate cause of injury.

"* * * While the negligent act must be one of the essential causes producing the injury, it need not be the sole, last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which, in combination with it, causes the injury." Bernard v. Elgin, J. & E. Ry. Co. (1962), 34 Ill. App.2d 466, 470.

and

"* * * Where injury or damage is caused by the concurrent negligence of two persons and the accident would not have occurred without the negligence of both, the negligence of each is the proximate cause of the injury or damage." Naslund v. Watts (1967), 80 Ill. App.2d 464, 470.

• 7, 8 The City's contention is that, without its negligent maintenance of the crosswalk, the plaintiff would still have been injured due to her haste in escaping from the path of the truck. This issue can be resolved only by interpreting and analyzing the evidence adduced at trial, a task reserved for the jury. The question of proximate cause is ordinarily a question for the jury and a reviewing court will not decide this question in cases such as the one at bar. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 83-84; Bernard v. Elgin, J. & E. Ry. Co., supra at 471.) We will not disturb the jury's finding of fact and we affirm the judgment against the City.

In summary, the arguments raised by both appellants, i.e., the identity of the truck, the question of the City's negligent act and the question of proximate cause, are all questions of fact which were resolved by the jury.

Judgments affirmed,

GUILD and SEIDENFELD, JJ., concur.

19711115

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