APPEAL from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
A jury awarded plaintiff, Evelyn Pittman, the sum of $27,000 against the city of Chicago as damages for personal injury she sustained as a result of the negligence of the city in maintaining a sidewalk. The trial court granted the city's motion for a new trial and this court allowed plaintiff's motion for leave to appeal from that order.
The issues for review are as follows:
1. Did the court commit reversible error in refusing to give the city's instruction advising the jury that plaintiff must prove the city had actual notice of the dangerous condition or that such condition had existed for so long a time that in the exercise of ordinary care it should have been noticed;
2. Was plaintiff guilty of contributory negligence as a matter of law; and
3. Was the verdict excessive.
Plaintiff, a 56-year-old woman, was employed and each working day was afforded a ride to and from her place of employment at a candy factory where she was a candy separator. Plaintiff's travel arrangement necessitated she be picked up and dropped off at an intersection a short distance from her home.
On the date of the accident, April 6, 1971, at 5 o'clock in the evening she was walking home after being dropped off. When she reached the 5100 block of North Clark Street, she commenced to walk on the east side in a northerly direction. Photographs in evidence depict the walk to have an abundance of holes, large cracks, and uneven slabs. Plaintiff's heel caught in one of these holes and she fell forward, upon her nose.
She was removed by a Chicago Fire Department ambulance to the hospital where she was afforded emergency treatment and advised to seek further diagnosis and treatment from a specialist who was department head of Eye, Ear and Nose Service at Edgewater Hospital. He examined the injury and found a compound nasal fracture with a deviated nasal septum. The tissue had broken open and a portion of the nasal bone and cartilage protruded from the nose. The septum was pushed to one side and down causing a flattening of the nose and obstruction of the airways. Plaintiff was immediately prepared for surgery which required an incision and then the internal membrane was separated from the cartilage. Another incision was made on the other side for the same purpose. A section of cartilage which had twisted upon itself was removed, and the remaining portion and bone was placed in its normal position.
A third incision was made inside the nose to remove pulverized bone and the remaining bone structure was placed in an approximate normal position. The incisions were then sutured so that healing would return the nose as near as possible to its normal state. A vaseline saturated gauze packing was applied to hold the remaining bone and cartilage in a normal position, and dressings and a metal splint were then applied.
Plaintiff experienced a great deal of pain and suffering and was administered a variety of drugs to reduce and alleviate her condition. Plaintiff also took a drug to dry the nose mucus and prevent or minimize mucus and pus discharges from her nose. After two days in the hospital she was sent home, suffering pain and discomfort. A few days later the surgeon removed the inside packing and the outside sutures and then applied new dressings after suctioning off an accumulation of mucus. Subsequent visits followed and on June 3, 1971, the surgeons discharged her from any need of further treatment or observation. As a result of the injury she remained home and had a $400 loss of income, and $1,560 medical expenses. There is a disfiguring scar on the dorsum, and absent bone particles cause a deformity of her nose structure.
Plaintiff concedes that the city is not liable if it did not have actual or constructive notice of the defective sidewalk for a sufficient time prior to the injury. She argues, however, that it was undisputed that plaintiff's evidence established that the defect or dangerous condition existed for at least 6 years before the occurrence and hence no factual question was thus presented, and therefore, the issue was properly decided by the court without a jury determination. At the close of plaintiff's case, the city unsuccessfully argued for a directed verdict in its favor because it contended that the evidence failed to establish actual or constructive notice. At the conference on instructions, the trial court advised counsel that the instruction touching on notice would be submitted, but when they returned to open court the trial court altered its position and advised counsel it would deny the city's notice instruction. Thereafter, when the trial court was in the process of reading the instructions to the jury, the court proceeded to read the notice instruction. Plaintiff's counsel interjected and reminded the court that the notice instruction had been denied. The court then told the jury to disregard the instruction and the court withdrew it from the set of instructions going to the jury.
We find that the instruction should have been given, but we do not hold under the circumstances that such error would justify depriving plaintiff of her judgment. Plaintiff's testimony regarding how long she had noticed the presence of the ...