APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
J. SLATER, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Lucien Livings, brought an action against the City of Chicago to recover damages for personal injury alleged to have been incurred as a result of the negligence of the city in maintaining a city sidewalk. On August 16, 1972, a jury verdict was rendered in favor of the plaintiff, assessing damages at $100,000.
The city appeals, contending (1) that the court erred in refusing to give a requested instruction to the jury delineating the requirement that the city have actual or constructive notice of the condition of the sidewalk to be held liable, and (2) that the $100,000 judgment is excessive.
At trial the plaintiff called four witnesses. The city presented none. The plaintiff, 57 years old at the time of trial, testified on his own behalf that at about 4 P.M. on Sunday, August 4, 1968, he left his residence at 3751 South Wood Street in Chicago to go for a stroll in the neighborhood with no particular destination in mind. About 2 years previously he had developed some "trouble" with his right ankle, and so he customarily used a "walking stick" or cane for support, as he did on this day. About two short blocks from his home, as he walked north on Paulina, he approached a hole in the sidewalk in front of 3740 South Paulina which he had seen on other occasions. On this date he first saw the hole, which was about 2 1/2 inches deep, from a distance of about 10 feet. He attempted to use the ribbon of stable sidewalk to the left of the hole. As he was abreast of the hole a boy heading south on a bicycle approached him from ahead and called to him "to look out." He moved to the right, toward the hole, to let the boy pass on his left. In so doing his cane hit an upraised portion of the sidewalk throwing him off balance and causing his cane to slip into the hole, and he fell on his right side. He lay there in "terrible pain" from the knee half way up the thigh on his right leg for about 3 minutes before a passer-by helped him up and took him to the steps of a nearby house. The man then left to call an ambulance.
About a half an hour or more later the police arrived in a patrol wagon, put the plaintiff on a stretcher, and took him to the County Hospital. He was still in terrible pain. The doctors at the hospital took X-rays, which indicated a completely fractured right thigh bone (or femur). A pin was inserted below the knee of his right leg. His leg was put in traction and remained so for 10 weeks, during which time he had to continually lie on his back in bed. Upon being removed from traction, he was put in a body cast which extended from the bottom of the right foot all the way up to his chest. He was released from the hospital a few days after the cast was applied, but it was kept on for 2 months, during which time he remained bedridden at home. Other testimony regarding the nature and extent of his injuries will be discussed below.
Kathleen Nowak testified that she resided at 3748 South Paulina on the day of the accident and had lived there for 20 years. This was two doors south of where the plaintiff fell. She walked by there every day and stated that the defect in the sidewalk shown in the exhibits had existed for "one or two years" before August 1968. She further said that she did not know the plaintiff or anything about his accident.
The only other witnesses, both also appearing on behalf of the plaintiff, were Bessie Havlan, a librarian employed by the County Hospital who identified the X-rays of the plaintiff which were admitted into evidence, and Doctor Allen Hirschtick, a certified orthopedic surgeon who examined the plaintiff.
At the close of the evidence, the city tendered the following instruction for the jury.
"The Jury are [sic] instructed that before a municipality can be held liable for a condition in its streets or sidewalks, it must be shown that the City had actual notice of such condition or that such condition had existed for so long a time that the City in the exercise of ordinary care should have had notice of same and should have had reasonable time to remedy same."
The instruction was drawn to reflect the rule that a local public entity is only liable if it has either actual or constructive notice of the defect for a sufficient time prior to an injury to have corrected the condition. (See Ill. Rev. Stat. 1971, ch. 85, par. 3-102.) The trial court refused the instruction, and the city bases its first allegation of error on that refusal.
• 1 The city stresses that a litigant has a right to have instructions submitted to the jury in accordance with the law governing the case. With this fundamental rule we are naturally in accord. (Blanchard v. Lewis, 414 Ill. 515, 112 N.E.2d 167.) It is well established that failure to give a party the right to have the jury instructed upon his theories of recovery or defense may require reversal. (Sims v. Chicago Transit Authority, 7 Ill. App.2d 21, 129 N.E.2d 23.)
We first point out, however, that the issue of notice was amply brought to the jurors' attention in the instructions given to them. The "issues made by the pleadings" instruction (IPI 2d 20.01) indicated that the plaintiff alleged negligence on the part of the city in that it "[s]uffered and permitted said sidewalk to be and remain out of repair * * * of which dangerous condition the defendant knew or in the exercise of ordinary care ought to have known." Under a separate instruction the jury was informed that it was the plaintiff's burden to prove the claims made in the issues instruction.
We further point out that the plaintiff's evidence in regard to notice was uncontradicted, and so sufficiently strong that the trial court might well have found that the city had constructive notice as a matter of law.
• 2 In this regard we recognize that generally whether a defect in a public sidewalk has existed a sufficient length of time prior to the injury for the city to be deemed to have constructive notice is a question of fact for the jury. The city cites for this proposition Trojan v. City of Blue Island, 10 Ill. App. 47, 134 N.E.2d 29, and Baker v. City of Granite City, 311 Ill. App. 586, 37 N.E.2d 372. Neither of these cases, however, stands ...