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Janssen v. City of Springfield

OPINION FILED FEBRUARY 14, 1979.

CHARLES JANSSEN, PLAINTIFF-APPELLEE,

v.

THE CITY OF SPRINGFIELD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. EUGENE O. DUBAN, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Defendant City of Springfield, appeals from a judgment of the circuit court of Sangamon County in the sum of $250,000 entered against it on March 6, 1978, pursuant to a jury verdict in favor of plaintiff Charles Janssen. The suit was brought to recover for severe personal injuries received by plaintiff in the early morning hours of August 26, 1973, when a motorcycle he was riding collided with a traffic island located at the intersection of Fifth and Stanford Streets in Springfield.

In the area in question, Fifth Street was a one-way street with traffic limited to that going in a southerly direction. Plaintiff was proceeding in that direction and was in the left lane of Fifth Street as he approached the intersection. Initiating just prior to and carrying through the intersection, Fifth Street curved to the left, or the east. A three-sided safety island was located at the southeast corner of the intersection, separating traffic continuing on the through portion of Stanford Avenue from a separate traffic lane which enables westbound traffic on Stanford to bear to the left, make a left turn, and enter Fifth Street some 50 feet southeast of the intersection. The west edge of the traffic island extended some 5 1/2 feet into the curving left lane of Fifth Street. The accompanying diagram depicts the intersection at the time of the collision.

The theory of plaintiff's complaint was that defendant had a duty to warn the traveling public of the hazard presented by the projection of the safety island into Fifth Street or to remove it and negligently failed to do either. Defendant contended that it had a duty to do neither. On appeal, it maintains that the verdict was, accordingly, contrary to the manifest weight of the evidence and that the court erred in instructing the jury.

John E. Bierwalt, a college professor, engineer, and expert on traffic safety, testified that in his opinion, safe practice would have required that warning of the danger created by the projection of the traffic island be given both at the island and on the approach of Fifth Street north of the intersection. He stated that one way of doing this would have been to place an obstacle marker at the island. Additionally, to the north on Fifth Street, he also would have marked the east six feet of the pavement as a parking lane for a substantial distance north from the intersection and would have preceded this with a regulating sign telling motorists to keep to the right. He described as an alternative, having a lane line drawn on the pavement, beginning at a point substantially north of the intersection on the east edge of the Fifth Street pavement, and extending in a southerly direction on the pavement, gradually bearing west of the curb line. Such line would gradually direct traffic in the east lane to the right until the left edge of the lane was six feet west of the edge of the pavement. The line would then continue southerly, parallel to the other lane lines on Fifth Street.

Defendant does not dispute that the evidence was sufficient to support a finding of negligence upon the part of some governmental unit in the control of traffic at and approaching the intersection, nor does it deny that it was warned of the hazard existing there. The determination of whether defendant was under a duty to do the things claimed by plaintiff depends upon the operation of a complicated statutory scheme upon an equally complicated but mostly undisputed state of facts.

At the time of the accident, the intersection in question was within the corporate limits of the City of Springfield, it having been annexed in September of 1972. Prior to that time, the north edge of Stanford Avenue had been the southerly corporate limit of the city and the intersection was outside of city limits. By 1960, Fifth Street had become a part of the State highway system. That year, agreements were entered into between the State and the city to improve Fifth Street and make it a roadway 52 feet wide from Broad Place south to the north edge of the Stanford Avenue intersection. These agreements provided in part that,

"4. Upon completion of the improvement, and so long as the street is used as a State highway, the STATE will maintain, or cause to be maintained, the pavement structure of two widths each 12 feet wide and lying one on either side of and adjacent to the center line of the pavement,"

and that,

"10. Upon completion of the improvement, the CITY will maintain or cause to be maintained, the pavement structure outside of that portion which is to be maintained by the STATE, together with all curbs, gutter flags, manholes, catch basins, storm sewers, utilities, and appurtenances located within the limits of the street."

The city also agreed to pay the cost of subsurfacing and paving seven-foot parking lanes on each side of the street.

The plans by which the construction of Fifth Street north of Stanford Avenue was done did not include any reference to the traffic island here in question. State plans as to construction south of the north edge of Stanford on Fifth Street included the traffic island.

In July of 1973, defendant city entered into a further agreement with the State to provide maintenance "in a manner satisfactory" to the Department of Transportation of the State for portions of certain streets which were State highways and which passed within city limits, including Fifth Street north of the north edge of Stanford. Such maintenance was "to include all necessary repairs, cleaning and snow removal."

Neil Morton, district traffic engineer for the State, testified to an informal oral agreement between the State and the city whereby the city agreed to mark the lanes upon the portions ...


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