APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Helen M. Ryan (plaintiff) brought suit against City of Chicago for personal injuries suffered as a result of a fall on a sidewalk. The City filed a third-party complaint (later amended) against Marshall Field & Company, Pepper Construction Company and Anthony J. Bongiorno, doing business as N.J. Bique. The case was tried before a jury. The trial court sustained the motions of Field and Pepper and directed verdicts in their favor on the third-party complaint. The jury returned verdicts in favor of plaintiff and against the City in the amount of $62,000 and in favor of Bique and against the City on the latter's amended third-party complaint. The jury also returned a special verdict finding the City guilty of negligence that was the proximate cause of plaintiff's injuries. The City appeals.
In this court, the City urges reversal of the judgment in favor of plaintiff for the sole reason that she failed to sustain the burden of proving her freedom from contributory negligence so that the court should have directed a verdict in favor of the City on plaintiff's complaint. Alternatively, as regards the liability of the third-party defendants, the City urges that the court erred in directing a verdict in favor of the third-party defendants Field and Pepper because the negligence of the City, if any, was passive while these third-party defendants were guilty of active negligence so that the City's motion for judgment in its favor should be sustained. Finally, the City urges that the court erred in refusing to enter judgment in favor of the City and against Bique because the evidence overwhelmingly showed that Bique performed the defective work which caused plaintiff's injuries. The third-party defendants Field and Pepper support the judgment in their favor on the City's third-party complaint on the theory that neither of them performed any of the work upon the allegedly defective sidewalk but that all of the work was done by Bique as an independent contractor; and, in any event, that any negligence charged against the third-party defendants would necessarily be passive and on the same qualitative level as that of the City so that the directed verdicts were proper. The third-party defendant Bique takes the position that the factual determination by the jury in his favor is not open to question and that as a matter of law the City itself was guilty of active negligence so that it was not entitled to indemnity from Bique.
The various issues categorize into three groups which will be separately considered from a factual as well as from a legal point of view.
The Issues Between Plaintiff and the City.
As indicated, the sole issue raised by the City as regards its liability to plaintiff is contributory negligence. The evidence shows that on June 4, 1968, plaintiff suffered a fall upon the public sidewalk at the northeast corner of State and Washington Streets, in Chicago. Plaintiff, a woman some 68 years old, was standing in a group of people rather close to the curbline about to cross Washington Street in a westerly direction. As the traffic light became green, plaintiff started to walk forward and she fell to the ground. She was wearing high-heeled shoes and one of her heels became stuck in some tar, or tarlike material, which had apparently been applied to fill some cracks in the sidewalk.
The strips of tar were approximately 2 to 3 inches wide. At one point, this substance was about one-half inch higher than the level of the sidewalk. There is testimony that this tar appeared to be fresh, shiny and rather soft. Immediately after plaintiff fell, a witness noticed one area of the tar had been pulled up and had a heelmark in it. The plaintiff had called this to her attention after the fall and told her that she had caught her heel in it. The witness did not notice the tar previously. A police officer on duty at the corner noticed new tar in the sidewalk cracks adjacent to where plaintiff fell. On that day, there were no barricades or warning signs in the area. The officer estimated that during lunch hours from 100 to 200 pedestrians might cross the streets on that corner at each change of the traffic lights.
Plaintiff testified that it was her custom to go to the downtown area most Tuesdays for some shopping. She generally went to the Field store on those days, using the entrance on the corner of State and Washington Streets. On this date, she went into the Field store, made a purchase and then left to go to another department store. She then returned to the Field store to have her lunch, using the same entrance. The fall occurred in the afternoon when she left the Field store after lunch.
Plaintiff further testified that she had previously noticed tar marks on the sidewalk in the area. On the day in question, she failed to see the tar before she stepped on it and fell. She did not look down specifically and was not looking at the ground before she fell. She did not see anything on the sidewalk before the fall. The area was crowded with pedestrians and she waited about 30 seconds for the traffic light to change. The weather was clear on that day. After her fall, she noted the tar and it looked fresh and shiny. She did not notice anything unusual until she tried to walk, could not do so because her heel was caught and she fell. No one pushed her before she fell. From a stretcher, she saw that the tar looked shiny, fresh and soft. At the hospital, she noticed tar on the heels of both of her shoes. They were only one week old.
The City urges strongly that a person may not knowingly expose himself to danger and then recover damages for an injury which he could have avoided with reasonable precaution. (Carter v. Winter, 32 Ill.2d 275, 284, 204 N.E.2d 755, cert. denied, 382 U.S. 825.) The City also urges the general principle that, where a plaintiff is guilty of contributory negligence, he cannot recover on the theory of negligence of the defendant. (See Hermann v. City of Chicago, 16 Ill. App.3d 696, 701, 306 N.E.2d 516.) However, we need not reason from general principles in this type of case since there is specific authority governing the situation. Perhaps the most frequently cited decision upon this precise point is Swenson v. City of Rockford, 9 Ill.2d 122, 136 N.E.2d 777. There, plaintiff sued for personal injury sustained in a fall upon an allegedly defective sidewalk. She had noticed a long crack in the sidewalk on other occasions. The condition in question had existed for more than 2 years and plaintiff had passed it some 4 or 5 times a week for 10 years. The jury returned a verdict in favor of plaintiff. The appellate court reversed, finding plaintiff guilty of contributory negligence as a matter of law. The supreme court affirmed the original judgment. The essence of the decision, decisively applicable to the case before us, is (9 Ill.2d 122, 127):
"The use of a defective sidewalk by a person who has knowledge of the defect is not contributory negligence per se, and if, while walking upon that sidewalk, such person is in the exercise of ordinary care for his or her safety, there may be a recovery in case of an injury. (Wallace v. City of Farmington, 231 Ill. 232; City of Mattoon v. Faller, 217 Ill. 273.)"
One of a number of persuasive authorities following Swenson and reaching the same conclusion is Scoggins v. Village of Hartford, 128 Ill. App.2d 228, 262 N.E.2d 97.
• 1, 2 Thus it is apparent that the evidence here does not establish contributory negligence of plaintiff as a matter of law. We cannot say that all of the evidence when viewed in its aspect most favorable to plaintiff so overwhelmingly shows contributory negligence that no verdict in favor of plaintiff based on that evidence could be permitted to stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504. See also Hardware State Bank v. Cotner, 55 Ill.2d 240, 246, 302 N.E.2d 257.) There were many circumstances shown by the evidence here which would tend to convince the trier of fact that plaintiff was not guilty of contributory negligence. The evidence shows the crowded condition of the northeast corner of Washington and State Streets during the lunch hour. It would be most unusual to find any pedestrian in that situation who kept his eyes constantly adverted to the sidewalk below. In a situation of this type, reasonable persons might well differ on the issue of contributory negligence. Therefore, determination of whether plaintiff was guilty of contributory negligence rested with the trier of fact. (Union Automobile Indemnity Ass'n v. Drew, 3 Ill. App.3d 1102, 279 N.E.2d 776.) The jury arrived at its verdict upon a record ...