APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 7, 1977.
A judgment of $750,000 was entered in favor of James Greene by the court without a jury in this personal injury action against the City of Chicago and Timothy J. Ferm. Timothy J. Ferm was charged with negligence in driving his automobile and the City of Chicago with negligence in maintenance of artificial street lighting. Only the City prosecutes this appeal.
On December 12, 1970, at approximately 11:30 p.m., plaintiff James Greene was proceeding south on Wentworth Avenue. Just north of the intersection of 104th Street, plaintiff's car stalled. The weather was overcast, with rain turning to snow. After several attempts to restart the automobile failed, plaintiff switched on the emergency blinker and got out of his car. He went to the rear and proceeded to remove a flare with which he intended to light the area to warn other motorists. The evidence as to whether the street lights were on or off at the time is in considerable conflict and will be detailed below. The plaintiff was struck as he was standing behind his vehicle by an automobile driven by co-defendant Timothy J. Ferm. The injuries plaintiff received necessitated the amputation of both legs.
The issues on appeal are: (1) whether the finding that the artificial street lights were not lighted at the time of the occurrence was against the manifest weight of the evidence; (2) whether a municipality is liable for negligence in the maintenance of its voluntarily undertaken street lighting, apart from its generic obligation to warn travelers of dangerous obstructions to ordinary travel; (3) whether the defective condition of the artificial lighting was the proximate cause of the occurrence; (4) whether the notice served by plaintiff complies with the requirements of section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85 par. 8-102); and (5) whether it was error to deny the City's motion for leave to file a late jury demand.
The City's first contention is that the trial court's determination that the street lights were not functioning along Wentworth Avenue at the place of the collision is against the manifest weight of the evidence. The plaintiff alleges that the lights were out from 103rd to 107th. The City's evidence shows that the lights on Wentworth from 103rd to 107th consist of two circuits. Each starts from a junction box at 105th Street. One circuit runs north to a point 20 feet south of the south line of 103rd Street. The other circuit runs south from the same junction box to a point just north of the north line of 107th Street. All the lights are located on the west side of the street. Each circuit is separate from the other. Each has a separate circuit breaker. Both circuits receive their electricity from the Commonwealth Edison pole at 105th Street just west of Wentworth Avenue. The circuits of street lights for the streets intersecting Wentworth running east and west are entirely independent from the circuit that serves Wentworth Avenue.
On direct examination in its defense testimony, the City produced several witnesses who testified as to the procedure followed by the Bureau of Streets and Sanitation with regard to street light maintenance. Testimony established that the City is prepared to receive complaints about street light malfunction on a 24-hour basis. The complaints may be received from citizens via the telephone, or from City mobile units equipped with two-way radios. In addition to the City units, police officers regularly report light failures which they observe. Police reports are collected at police headquarters at 11th and State Streets and are then passed on to the Bureau via a special telephone "hot-line."
Upon receiving a complaint from either a citizen or from a city source, a record card is prepared which contains all of the pertinent information. In addition to these, the City then teletypes the information directly to the load dispatcher at the Bureau of Electricity so that a work crew may be sent to investigate and correct the light malfunction. Once the dispatcher receives the information, he prepares a defect report. Each report has provisions for up to 30 serially numbered complaints. In turn the information is then sent to the district office which covers the area of the malfunction. It is from these district offices that work crews are dispatched.
The Bureau of Electricity, once it has received a report of a street light failure, then prepares several of its own reports which make up a record of all maintenance measures taken. These records are further supplemented by each work crew which maintains its own log as to the work done on the street system.
The City presented evidence that it had no record of either a complaint about, or of repairs made to, the street lights on Wentworth Avenue between 103rd and 107th Streets on or about December 12, 1970.
The City also presented a number of police officers who had occasion to make out accident reports as to accidents which had occurred in the area on the evening of December 12, 1970. They testified that, on that evening, the street lights in the area were on. Only one of these officers was able to testify that he specifically remembered that the lights were functioning on the night of the accident. The other officers stated that they had no independent recollection of the matter and relied on their accident reports.
The plaintiff produced five persons who testified that, on the night of the occurrence, the street lights along Wentworth Avenue in the 103rd and 104th blocks of South Wentworth Avenue were off. Artie Johnson, who resided at 10340 South Wentworth, stated that, as he left his house, he noticed a crowd gathering at the intersection of 104th and Wentworth. As he approached the scene, he realized there had been a traffic accident. Mr. Johnson further stated that the street lights were off on the night of the accident and that they had been off for three weeks prior to the date of the occurrence. Mr. Johnson testified that he had called the City to complain about the lights before the accident. Dorothy Driggers, who lived at 10406 South Wentworth, testified that on December 12, 1970, she was startled by a loud noise outside of her house. When she went out to investigate, she saw the plaintiff lying on the street. She testified that the lights were not on at the time of the occurrence and had been off for some period before that, and also that the service had been intermittent for several weeks. She also stated she called the City to report the light failure. Clarence Whittaker, who resided at 10410 South Wentworth, testified that he was aroused by a loud crashing sound and that, when he went to see the source of the noise, he was unable to do so because the street lights were out. He also testified that the street lights had been malfunctioning for quite some time before the accident.
The Reverend Theodore Harrison testified that he had been driving directly behind the co-defendant, Timothy J. Ferm, for several blocks. He stated that he was proceeding south on Wentworth when he came to 103rd Street, where they both stopped for a traffic light. As he passed the intersection the overall visibility suddenly dropped from about 150 feet to 25 feet because the overhead lights had failed. Reverend Harrison said it was so dark that, when Mr. Ferm's automobile suddenly swerved and stopped, he had to get out of his car to see with what Mr. Ferm had collided.
Mr. Ferm, the co-defendant, testified that, when he crossed the intersection at 103rd, the overhead lights were not burning south of that point. He stated the visibility was reduced from 150 feet to only about 50 or 60 feet. It was this reduction in visibility that made it difficult for him to see the plaintiff's stalled car. Mr. Ferm testified that he did not see the plaintiff's car until he was about 60 feet from it and, even then, because of the darkness, he could not tell that the plaintiff's car was stationary.
• 1 When the court tries a case without a jury its findings of fact should not be disturbed unless those findings are against the manifest weight of the evidence. (C.A. Aderdung Plumbing & Heating Co. v. Stanton (1969), 115 Ill. App.2d 308, 253 N.E.2d 160; Upton v. Parkway Motors, Inc. (1968), 90 Ill. App.2d 426, 232 N.E.2d 513.) Where the record and evidence support the findings of the court those findings should not be disturbed. (Turner v. Board of Education (1973), 54 Ill.2d 68, 294 N.E.2d 264; Brown v. Zimmerman (1959), 18 Ill.2d 94, 163 N.E.2d 518; Bridges v. Neighbors (1975), 32 Ill. App.3d 704, 336 N.E.2d 233.) The trial court is in a better position to assess the credibility of the witnesses and to weigh the conflicts in evidence. In our opinion the trial court's finding of fact that the lights were off is supported by the evidence and should not be disturbed.
The finding of fact that the lights were not functioning on the night of the plaintiff's injury leads to the defendant's second contention which essentially questions the scope of the duty of a municipality under the circumstances. The City contends its only duty is to provide lighting where there are known dangers or obstructions in the street. The City cites Ricklefs v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1954), 1 Ill. App.2d 320, 117 N.E.2d 573, in support of this position. In Ricklefs the court reviewed the leading cases and said, at page 329, "So far as we have been able to determine, the cases go no further than to require the City to light and warn against known dangers or obstructions." The plaintiff concedes that a municipality is not legally required in the first instance to install lights except when there is a dangerous obstruction or defect in the road. However, the plaintiff argues that, where a municipality does in fact undertake to light its streets, it may be liable if it does so in a negligent manner. In support of this conclusion, the plaintiff cites the cases of Baran v. City of Chicago Heights (1969), 43 Ill.2d 177, 251 N.E.2d 227; Johnston v. City of East Moline (1950), 405 Ill. 460, 91 N.E.2d 401; City of Chicago v. Powers (1866), 42 Ill. 169; City of Chicago v. Kubler (1907), 133 Ill. App. 520; and Ricklefs. An examination must be made of these cases to determine what the duty is.
In Kubler, the plaintiff was driving a team of horses attached to a wagon along Erie Street when the wheel of the wagon slipped into a hole that the wagon driver could not see because of the dimly lit street. The court found the city negligent in allowing the roadway to remain in a bad condition and in not providing sufficient light to enable the defects to be seen by those using the street. The plaintiff cites that case for what the court stated at page 526:
"Here the dereliction of the city is accentuated from the fact that while it understood the duty of furnishing ...