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Preston v. City of Chicago

NOVEMBER 17, 1975.

ROBERT PRESTON, PLAINTIFF-APPELLEE,

v.

CITY OF CHICAGO, DEFENDANT-APPELLANT — (GEORGETTE PRESTON, PLAINTIFF; JOSEPH JAGLA, INDIVIDUALLY AND D/B/A NEIGHBORS LOUNGE, DEFENDANT).



APPEAL from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

This appeal is from a judgment upon a verdict in favor of Robert Preston in a personal injury action against the City of Chicago. The jury awarded plaintiff $100,000 in damages. Joseph Jagla, originally a co-defendant, was nonsuited on plaintiff's motion prior to trial. Thereafter, the City of Chicago filed a third-party complaint against Mr. Jagla. This third-party complaint was dismissed upon Mr. Jagla's motion. Defendant appeals contending: (1) that the finding that the cracked condition of the public sidewalk was the proximate cause of the plaintiff's injury was against the manifest weight of the evidence; and (2) that the trial court improperly dismissed defendant's motion to file a third-party complaint.

As defendant limits its appeal on evidentiary matters to the cause of plaintiff's fall, we will limit our review of the record to evidence regarding the cause of that fall. The evidence presented regarding the cause of the plaintiff's fall and injury consisted of the plaintiff's testimony, photographs and testimony regarding the condition of the sidewalk where plaintiff fell, and the testimony of two doctors who treated the plaintiff and a fireman who arrived at the scene shortly after the fall.

Plaintiff testified that on the afternoon of July 16, 1968, he had two glasses of beer at the Neighbors Tavern owned by Joseph Jagla at 2758 South Spaulding Avenue in Chicago. He arose to leave and exited by a door which led out onto a public sidewalk. There were two steps which led down from the door to the sidewalk. The plaintiff testified:

"Well, I pushed on the screen door, it pushed outward, I just kept my hand on it, walked down the two steps, released the door, started to head southeasterly toward my car, and about that time a horn blew, real loud horn, and I just looked and next thing I knew I'm laying on the sidewalk."

At the time, plaintiff testified, he did not know what caused his fall, but afterwards he realized that a "fairly deep crack" in the sidewalk was what caused his fall. He testified that he tripped, having a sensation "like you caught your foot on a rug." In describing his fall he said he did a twist and landed primarily on his left shoulder. Photographs entered into evidence by the plaintiff and defendant depicted a crack in the sidewalk running parallel to the two steps leading from the tavern. The crack was no more than 2 feet from the tavern steps. An investigator for the plaintiff testified that the cement on the far side of the crack was raised approximately 2 inches above the cement closest to the tavern stairs. The investigator testified that the crack extended for about 5 or 6 feet.

George Wortner, a Chicago fireman, testified that he found the plaintiff lying across the sidewalk approximately 3 or 4 feet from the stairs of the tavern. In recalling what the plaintiff said to him concerning how the accident took place, Wortner testified that the plaintiff told him he tripped or flipped and, "It seemed to me like he made a complete flip and turned over." Wortner could not remember whether the plaintiff described his fall as a somersault or a flip and did not recall the plaintiff mentioning that he fell on the sidewalk.

Dr. Frank Grill, the plaintiff's family physician, testified he visited the plaintiff at St. Anne's Hospital the morning after the accident. He testified that the plaintiff told him that he "missed his step." The doctor went on to testify that:

"Now, by what I mean `he missed a step,' we calculated that he had stumbled into — because of a defect in the sidewalk.

* * *

There was a defect in the sidewalk as he stepped off the last step. And he was quite descriptive of what he stepped in, what looked like a hole. And that is how he fell."

Dr. Grill's medical history of the plaintiff's injury stated that "patient stated he missed his step leaving a store and fell, and was unable to walk thereafter." Another report, by a resident orthopedist at St. Anne's Hospital stated that the patient, "tripped, somersaulted and fell on his right leg." None of the reports concerning the plaintiff from the hospital mentioned that the plaintiff had stepped in a hole in the sidewalk.

Another medical history taken by Dr. Kenneth Sanders at the Veterans Hospital contained an entry that the plaintiff, "fell either on the second step or on the sidewalk." A later entry in the plaintiff's medical history at the Veterans Hospital said the plaintiff was injured when he tripped on a sidewalk.

Defendant's first contention on appeal is that the verdict was against the manifest weight of the evidence. The evidence, defendant argues, clearly shows that the plaintiff's fall was caused by the plaintiff tripping on the tavern stairs and not by the plaintiff tripping over the crack in the public sidewalk. Therefore, defendant argues, the verdict against the City of Chicago, which must have been based upon a finding that the plaintiff's fall and injury was caused by the crack in the sidewalk, was against the manifest weight of the evidence. Defendant argues that the evidence shows that the plaintiff "somersaulted" after tripping. Such testimony, that the plaintiff did a somersault after tripping over a 2-inch crack in a sidewalk ...


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