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Greene v. City of Chicago

OPINION FILED OCTOBER 6, 1978.

JAMES GREENE, APPELLEE,

v.

THE CITY OF CHICAGO ET AL., APPELLANTS.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Walter J. Kowalski, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing Denied December 1, 1978.

Following a bench trial in this action to recover damages for personal injuries, the circuit court of Cook County entered judgment in the amount of $750,000 in favor of plaintiff, James Greene, and against defendants, the city of Chicago (hereafter defendant) and Timothy J. Ferm. Defendant appealed, the appellate court affirmed (48 Ill. App.3d 502), and we allowed defendant's petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues.

On December 12, 1970, at approximately 11:30 p.m., while plaintiff was driving south on Wentworth Avenue, his automobile stalled and came to a stop a short distance north of the intersection with 104th Street. The weather was overcast, with rain turning to snow, and visibility was poor. He testified that between 103rd and 104th Streets the overhead lights were out and it was "pitch dark." After several attempts to start his automobile, plaintiff switched on the emergency blinkers, got out of the automobile, and opened the trunk to remove a flare which he intended to light in order to warn other motorists. While standing behind his vehicle, he was struck by an automobile driven by defendant Timothy J. Ferm, and suffered severe injuries as the result of which both legs were amputated.

As grounds for reversal defendant contends that the circuit court abused its discretion in denying defendant's motion to file a late jury demand; that it is not liable for plaintiff's injuries for the reason that neither the absence of lights nor the use of inadequate or defective lights can be held to be negligence unless it was shown that there was a defect in the street; that the evidence does not support the finding that the failure to provide lights was a proximate cause of plaintiff's injury; and that the finding by the circuit court that the street lights were not lighted at the time of the occurrence was against the manifest weight of the evidence.

We consider first defendant's contention that the circuit court erred in denying its motion for leave to file a demand for jury trial. The complaint was filed on August 3, 1971, and defendant's answer was filed on September 23, 1971. Neither party demanded a jury trial. On February 11, 1974, after the case had been assigned for trial, defendant filed a motion for leave to file instanter a demand for jury trial. It was stated in the motion that on January 14, 1974, a special assistant corporation counsel had been employed to try this case; that after giving notice to all parties he had, on January 29, 1974, filed his appearance as additional counsel for defendant; and that the failure to file a jury demand with defendant's original pleading was the result of "inadvertence and oversight of the assistant corporation counsel who was handling the case at that time." The motion was denied on February 25, 1974, and trial of the case commenced on June 3, 1974.

The parties are not in agreement concerning what would have occurred had defendant's motion been allowed. It is plaintiff's position that the case would have been removed from the trial docket and thereafter would wait its turn on the jury docket, and that the trial would have been delayed for a substantial period of time. It is defendant's contention that the case was assigned to the circuit judge who heard it and with or without a jury would have proceeded to trial within a reasonable time.

The Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 1 et seq.) in pertinent part provides:

"(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury." Ill. Rev. Stat. 1977, ch. 110, par. 64(1).

"On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment." Ill. Rev. Stat. 1977, ch. 110, par. 59.

Supreme Court Rule 183 (58 Ill.2d R. 183) provides:

"The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time."

This court has consistently held that the statute regulating the right to jury trial "`should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right.'" (Hudson v. Leverenz (1956), 10 Ill.2d 87, 93, quoting Morrison Hotel & Restaurant Co. v. Kirsner (1910), 245 Ill. 431, 433.) Defendant argues that following the decision of Hudson v. Leverenz the appellate courts> have applied two different tests in determining whether a late jury demand should be allowed; that one line of cases (see Hernandez v. Power Construction Co. (1976), 43 Ill. App.3d 860; Department of Public Works & Buildings v. Melling (1966), 78 Ill. App.2d 37; Hartsock v. Bress (1963), 40 Ill. App.2d 66; Dawson v. Maxwell (1957), 13 Ill. App.2d 228) holds that there must be "an absence of inconvenience to the court or parties litigant and the absence of prejudice to any person in any manner whatsoever," and the other (see Smith v. Realcoa Construction Co. (1973), 13 Ill. App.3d 254; Johnson v. Sabben (1972), 7 Ill. App.3d 238) that the test is not the mere absence of inconvenience or prejudice "but rather a demonstration of `good cause shown' to excuse the time requirements for filing a jury demand and further that mere mistake or inadvertence is not sufficient to demonstrate good cause." It argues further that the affidavit filed ...


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