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French v. City of Springfield

JULY 31, 1975.




APPEAL from the Circuit Court of Sangamon County; the Hon. J. WALDO ACKERMAN, Judge, presiding.


Plaintiff Donna French was severely injured when the automobile in which she was riding as a guest passenger collided with a utility pole in the 2400 block of South Fifth Street in Springfield in the early morning hours of January 26, 1969. She filed separate complaints seeking recovery for these injuries against defendants City of Springfield (City) and Virgil C. McCarty, administrator of the estate of Phillip C. McCarty, deceased, General Motors Company, the manufacturer of the car and the retail seller of the car. Phillip C. McCarty was the driver of the automobile and was killed in the collision. At the first trial of the case against defendant City, judgment was entered on a verdict in favor of that defendant. This court heard the appeal from that judgment and rendered its decision in French v. City of Springfield, 5 Ill. App.3d 368, 283 N.E.2d 18, reversing and remanding the case for a new trial. We found the admission of certain evidence as to the possible intoxication of Phillip C. McCarty, offered on the theory that his intoxication was the sole proximate cause of the collision, to be reversible error.

After remand the two cases were consolidated for trial. Upon plaintiff's motion, defendants General Motors and the retailer were dismissed pursuant to a covenant not to sue. Upon retrial, the jury returned a verdict for the plaintiff and against the defendant City and awarded her damages in the sum of $500,000. The jury also found in favor of the defendant administrator and against the plaintiff. Judgments were entered on the verdicts, and defendant City appeals.

At the time and the place of the occurrence, Fifth Street was designated a one-way street in a southbound direction. Between the 2300 and the 2400 blocks the grade of the street was depressed to go under the trestle of the Norfolk and Western Railroad tracks. The down slope began about 400 feet north of the center of the trestle and the level of the street returned to the normal grade about 400 feet south of the center of the trestle. The bottom of the underpass under the trestle was about 14 feet below the normal grade of the street. Except in the area of the underpass the street was 52 feet wide. A 12-foot-wide lane was marked off in the center of the street leaving lanes 20 feet wide on each side. These side lanes contained sufficient widths for parking by the curb in addition to space for a traveling lane. In the underpass the street narrowed on both sides eliminating the parking area but still leaving side travel lanes of at least 12 feet in width.

Five days prior to the occurrence, City's employees made two excavations in the east lane to repair a broken water main and then filled the holes and patched the surface with concrete. Awaiting the curing of the concrete, barricades were placed in front of the patches and flare pots were placed on the pavement in front of the barricades. The front of the barricades was about 130 feet south of the point where the south upgrade from the underpass ended and the street became level. The patch work and barricades extended into the east lane to a point about 3 1/2 feet east of the east line of the center lane, thus requiring motorists traveling in the east lane to turn into the center lane in order to pass the obstruction. The utility pole with which the McCarty car collided was some 170 feet south of the barricades and on the curb on the west side of the street. No warning signs or other indications of the barricades were placed to the north to warn those approaching of the obstruction.

Three eyewitnesses testified. Their testimony consistently showed that the McCarty car was traveling south at a high rate of speed, went under the trestle, changed lanes, skidded and ran into the utility pole. The witness most favorable to the plaintiff testified that the McCarty car was in the left lane as it went up the incline, braked and changed into the center lane at about the top of the incline south of the trestle and went into a skid. The other witnesses indicated that the McCarty car had turned into the center lane at an earlier point. Both of these witnesses were impeached, however, by prior inconsistent statements. Plaintiff also submitted evidence that skid marks believed by witnesses to be from the McCarty car began in the left lane and cut to the southwest toward the utility pole only 6 feet north of the barricades.

Plaintiff alleged that McCarty was guilty of willful and wanton misconduct and that the City was negligent in placing the barricades in the street without proper illumination and without proper warning to motorists whose vision of the barricades was obstructed by the crest of the return slope as they came through the underpass. Plaintiff also alleged that the City was negligent in failing to obey one of its ordinances prohibiting obstacles from being placed in the street without first obtaining a permit to do so signed by the city clerk and approved by the superintendent of streets and the city traffic engineer. The evidence was undisputed that the practice was for city employees as well as private contractors and others to obtain such a permit before obstructing a street and that no such permit was obtained here.

• 1 In enacting the ordinance, the City recognized that the placement of barricades in the streets could be done more safely if a person with expertise in traffic engineering passed upon the plans for the placing of such obstructions and that in the absence of following this procedure barricades are likely to be put into the street in a way more likely to create a hazard and result in a collision. An obvious purpose of the ordinance was to diminish the danger to the users of the streets from such hazards. Steve Koskey, defendant's city traffic engineer, testified that he was the person who had the responsibility of examining plans for placement of barricades and the approval of permits and that he would not have approved the method that was chosen here. He would have required the use of warning signs visible to the drivers and placed at several points through the underpass. He would also have required that a large number of barricades be placed in the left lane north of the obstruction, at such an angle as to gradually "channelize" the traffic into the center lane.

Thus, under the evidence the jury could have found that: (a) the failure to follow the requirements of the ordinance was negligence by City; (b) had the ordinance been followed and the plan submitted to the city traffic engineer, a better system of warning would have been used; (c) had the better warning system been used, the McCarty car would not have skidded and hit the utility pole; (d) City through its employees could have reasonably foreseen that if the ordinance were not followed an inferior system of warning of the barricades might be used and a collision might occur that would not happen if a better system of warning approved by a traffic engineer were used.

City, nevertheless, contends that the violation of the ordinance could not be found to be a proximate cause of the collision and that the admission of evidence on this subject over its objection was reversible error. In support of its contention, City cites McInturff v. Chicago Title & Trust Co., 102 Ill. App.2d 39, 243 N.E.2d 657; Curran v. Chicago & Western Indiana R.R. Co., 289 Ill. 111, 124 N.E. 330; Wyatt v. Chesapeake & Potomac Telephone Co. (1932), 158 Va. 470, 163 S.E. 370, 82 A.L.R. 386; and Johnson v. St. Paul Mercury Insurance Co. (La. App. 1969), 219 So.2d 524, 36 A.L.R.3d 1349, all of which involve claims of negligence arising out of the violation of a statute or ordinance. In each case the reviewing court ruled as a matter of law that the violation was not a proximate cause of the injury. In these cases, however, there was either no causal connection, either proximate or remote, between the violation and the injury, no foreseeability of the injury, or no duty owed to the plaintiff.

Closer to the mark is City's claim of analogy to the situation of the motorist driving without an operator's license required by statute. As stated in annotations at 16 A.L.R. 1108, 1117 (1922), and 163 A.L.R. 1375, 1387 (1946), decisions of the courts of most states hold that the violation of the statute requiring the license is not a proximate cause of damage caused by the unlicensed operator's driving. The most recent case in this State is Westefer v. Rybacki, 125 Ill. App.2d 66, 259 N.E.2d 810, where in an action by a 16-year-old motorcyclist against the operator of an automobile for personal injuries, evidence of the plaintiff's lack of an operator's license was admitted into evidence and the jury given Illinois Pattern Jury Instruction 60.01 (as was done in the case under consideration). The appellate court reversed, holding that the statutory violation could not have been a proximate cause of the collision.

A purpose of the statutes requiring driver's license is to keep incompetent drivers off the highways and to protect the public from the hazards of their driving. It is reasonably foreseeable that if unlicensed drivers drive, the dangers of collisions are enhanced. If an unlicensed person does not violate the statute and does not drive, then he will not cause an accident. Accordingly, there is some analogy in the application of the doctrine of proximate cause between that situation and the one under consideration in this case.

The difference is illustrated by the decision of the predecessor to this court, the former Third District Appellate Court in Wilson v. Hobrock, 344 Ill. App. 147, 152, 100 N.E.2d 412, 415. The plaintiff, there, had built a motor bicycle from a bicycle and washing machine motor. He was operating it when he became involved in a collision and brought suit for damages charging negligence. The defendant contended that the dangerous construction of the vehicle was a proximate cause of the collision. He offered evidence of plaintiff's lack of either an operator's permit or a certificate of title. The opinion stated that the lack of license was "immaterial" to plaintiff's exercise of due care and that neither the statutory license, nor certificate of title provisions would have required that the vehicle submit to a "safety test."

• 2 In the case under consideration, the ordinance did require the plans for the placement of the barricades in use at the time of the collision and the warnings of them to be given to the motorists to submit to a "safety test" to be administered by the city traffic engineer. The tests given to a person seeking a driver's license, on the other hand, pass upon that persons general ability to drive but not upon the particular manner that individual might be driving at the time of a collision. The causal connection between the violation of an operator's licensing statute and a collision is much more remote than that between the violation of the ordinance in question and the collision in question. The jury, here, could ...

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