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Hermann v. City of Chicago

DECEMBER 26, 1973.

ROBERT HERMANN, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES J. MEDJA, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Robert Hermann, a truck driver, sued the City of Chicago for injuries resulting from a collision with a viaduct on lower Lake Street. At the close of plaintiff's case, the court granted the motion of the City of Chicago for a directed verdict and entered judgment for the defendant and against the plaintiff. Plaintiff appeals, asking that the judgment be reversed and a new trial granted.

The issues presented for review are:

1. Whether the court erred in directing a verdict at the close of the plaintiff's case.

2. Whether a municipality has a duty to post height clearance signs on viaducts.

3. Whether the plaintiff was guilty of contributory negligence.

4. Whether there was sufficient evidence to show inadequate lighting.

5. Whether negligence can be shown by prior accidents.

6. Whether a reasonable man would be misled by signs on another street.

On November 8, 1967 plaintiff, Robert Hermann, was employed as a truck driver delivering freight. One of his deliveries was in the area known as lower Wacker Drive. Plaintiff's truck was about 24' long and 10'6" and 11' high. He was an experienced truck driver but had neither driven that truck before, nor driven on lower Lake Street. Plaintiff drove his truck south on Beaubien Court. On either side of Beaubien Court where it intersects with Lake Street there are steel pillars which support the overhead structure. On the pillar supporting the left-hand side there was posted a clearance sign with a height 14'11"; on the right girder there was posted a clearance sign with the height 13'7". Plaintiff stopped his truck, read both signs, made a right turn and continued westbound; the left side was blocked. Lower Lake Street at that location is only a quarter block long. The east end of the street ends at the east line of Beaubien Court and is blocked by a dock. The west end of Lake Street ends at lower Michigan Avenue and is blocked by a concrete wall. The upper level of Lake Street over the subject area is supported by four horizontal steel beams and slopes downward 3 1/2 feet over the quarter block distance. The beams extend north and south over lower Lake Street and rest on pillars on the side of the street. The first beam is 7'6" from the corner where plaintiff turned into lower Lake Street and has a clearance of 13'10". The second beam is 33' west of the first beam and has a clearance of 11'11 3/4". The third beam is 10'9" above the pavement. It is located 34' west of the second beam and is 5'6" from the corner of lower Michigan Avenue. The last beam is located in the middle of lower Michigan Avenue and is 10' 4 1/2" above the pavement.

After plaintiff turned right on to lower Lake Street, he passed under the first beam at a speed of 5 to 10 m.p.h. He had his headlights on and there was illumination by fluorescent lights. He stated that he was able to see the beams clearly and that there were no signs on any of the overhead beams. He passed the second beam without incident, maintaining the same speed as he continued down the street. As he was about to turn right on to lower Michigan Avenue, his truck struck the third beam at a speed of 5 to 10 m.p.h. and he sustained severe injuries. He sued the City of Chicago claiming that the city negligently failed to place lights and warning devices or low clearance signs on the overhead beams.

The court below, after reviewing the evidence in its aspect most favorable to the plaintiff, found that the evidence so overwhelmingly favored the defendant that no contrary finding based upon the evidence could ever stand and directed its verdict for the defendant and entered its judgment order thereon.

This court has passed upon the issues raised in this case in several recent cases.

In the case of Kutsenkow v. Chicago & N.W. Ry. Co. (1968), 99 Ill. App.2d 265, 240 N.E.2d 805, the plaintiff, Edward Kutsenkow, brought an action against defendant, Chicago & North Western Railway Company, for damages sustained by his refrigerator trailer when he attempted to drive the vehicle under defendant's viaduct. At the close of the plaintiff's case, the court sustained defendant's motion for a directed verdict and plaintiff appealed from the judgment entered on said verdict. The evidence showed that plaintiff "checked out" two viaducts "because they looked pretty low." Although he and his helper were doubtful, they entered the third viaduct where the damage occurred. Plaintiff contended on appeal that the court erred in directing a verdict for defendant because the question of contributory negligence was ...


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