APPEAL from the Circuit Court of Lake County; the Hon. ROBERT
K. McQUEEN, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment entered upon a jury verdict against plaintiff, Ethel M. Graves, in a negligence action which sought to recover for personal injuries suffered by her when she stepped in an alleged defect in a public street, fell and fractured her hip. The jury returned a verdict for the defendant, and the plaintiff's post-trial motion was denied. Plaintiff presents the following issues for our review contending that the trial court erred: in not directing a verdict on liability for the plaintiff; in instructing the jury on contributory negligence; and in allowing a witness to testify whose name had not been provided in answer to interrogatories and whose testimony was irrelevant. Plaintiff also contends that the verdict was against the manifest weight of the evidence.
The first witness called by the plaintiff was Bertha Simmons who resided on Montesano Avenue near the scene of the accident. Simmons had not seen Mrs. Graves fall but arrived on the scene shortly thereafter. Simmons testified that the alleged defect in the street extended from one curb to the other, was big enough to put one's foot in, and was "quite deep." She also stated that there was quite a bit of dirt and gravel on the street around the defect and that there were no barricades or warning signs in the area at the time of the accident.
Martin Grum, a Waukegan police officer who had been called to the scene of the accident, was the next witness called for direct examination. Grum stated that the hole in the street was approximately 12 inches wide and 8 inches deep at the point where Mrs. Graves had fallen. Grum further testified that although the trench extended across the entire width of the street, its depth varied.
Plaintiff then called Horace Biggers, an employee of defendant North Shore Gas Company and the foreman on the work crew which installed the gas service to the house at 1519 Montesano, under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). The substance of Biggers' section 60 testimony and his testimony when recalled by defendant later in the trial revealed the following information. Defendant's work crew arrived on the scene in February of 1978. After trenching a hole on the surface of the ground from the house to the street, the crew attempted to bore a hole underneath the pavement using a machine called a "mole." However, since the ground was so frozen, this procedure proved futile. At this point, defendant contacted the City of Waukegan in order to obtain permission to cut through the pavement of the street. The record reflects that written permission was granted by the city on February 10, 1978. The crew then began to cut the pavement across Montesano Avenue using a "backhoe trencher." Biggers testified that the machine cut a trench 30 inches deep and 5 1/2 to 6 inches wide. After the service was connected to the gas main, the work crew patched the street with sand and "cold patch" black top. The sand and blacktop were compacted with a pneumatic tool. Biggers stated that the "cold patch" was used to repair the street because the permanent "hot patch" was not available during the winter. Biggers indicated that the "cold patch" would not harden to the same degree as would the "hot patch." He further stated that he had inspected the site sometime after the work had been completed and that the excavation appeared to be level. Biggers testified there was no need for warning signs or barricades when the job was completed.
After completion of the section 60 examination, plaintiff Ethel Graves was called for direct examination. Mrs. Graves stated that on April 14, 1978, she and her husband had traveled to 1519 Montesano in order to view the new house that had been constructed there. Graves testified that her husband parked the car "a couple of feet" away from the curb in front of the house. She exited the car from the passenger side, took "a couple of steps," placed her left foot into the alleged defect, and fell over on her right side. Mrs. Graves stated that she did not see the trench and that, just prior to her fall, she was looking at the new house instead of the ground. On cross examination, Mrs. Graves stated that the trench was smooth in the middle but was "washed out on the ends." She also testified that the parkway in front of the new house was "full of mud" and that the street around the trench was strewn with gravel from trucks moving in and out. She further indicated that the condition of the trench as it existed on the day of the accident looked like that shown in a photograph later admitted as defendant's exhibit No. 2.
Plaintiff's husband, Edward Graves, then testified. Mr. Graves estimated the depth of the trench at the point where his wife had fallen to be five to six inches. Mr. Graves also corroborated the fact that the trench was level in the middle but washed out near the curbs and that there were no barricades or warning signs near the excavation.
The first witness called by defendant for direct examination was Robert Hund, the director of personnel and safety for the North Shore Gas Company. Hund testified that North Shore Gas Company had not received any complaints regarding the condition of the street at 1519 Montesano prior to April 14, 1978, the date of plaintiff's accident. Hund also stated that he had contacted Bertha Simmons on October 23, 1979, to inquire about her knowledge of the accident. Hund stated that, during their conversation, Simmons had told him that she did not notice a trench in the street at the location of Mrs. Graves' fall. The court then instructed the jury that Hund's testimony was to be considered only for the purpose of impeaching Simmons' previous testimony and not for the truth of the matter asserted.
Gerald Heinold, a member of the work crew that performed the excavation at 1519 Montesano, also testified as part of defendant's case. Heinold stated that, when the trench was filled, the cold patch seal was mounted up approximately an inch above the surface of the street in order to allow for any settling that might occur during the winter.
Later in the trial, Joseph Bidwill, an employee of Pacific Company, a paving contractor, was called by defendant to testify. Counsel for plaintiff objected to the anticipated testimony since Bidwill's name had not been furnished in response to plaintiff's discovery interrogatories. The trial judge overruled the objection, and Bidwill was allowed to testify. Bidwill stated that Pacific Company contracts to repave streets after utility companies complete underground work. He also stated that a permanent hot asphalt patch could not be placed in the street during the winter months "because the asphalt will freeze and expand and it won't be a suitable patch." Bidwill further testified that April 3 was the first date on which Pacific Company performed any asphalt work in 1978 and that it did not perform any work for North Shore Gas Company until May 3 of that year. Bidwill also stated that his company would not fill a work order until "we have accumulated enough work in a certain area to make it economically feasible for us to do a job, a good job for the utility companies and a profitable job for us."
Robert Johnson, street superintendent of the City of Waukegan, was the last witness called by the defendant. Johnson indicated that he had searched the city's records for complaints regarding the condition of the street in front of 1519 Montesano. He stated that no complaint had been filed concerning the alleged defect prior to April 14, 1978, the date of Mrs. Graves' accident. We have not set forth any of the testimony concerning plaintiff's injuries as it is not relevant to the issues raised on appeal.
Plaintiff first asserts as a basis for reversal that the trial court erred when it failed to grant her motion for a directed verdict at the close of all the evidence because defendant was negligent as a matter of law, a public utility which creates defects in the public way owes a higher duty than ordinary care, and a public utility is strictly liable for defects it creates in the public way.
The well-established Pedrick rule pertaining to directed verdicts states, "verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern Ry. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) Plaintiff argues that defendant was negligent as a matter of law for its failure to return to the excavation site to inspect and repair any subsidence that may have taken place. Plaintiff cites McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App.3d 345, 272 N.E.2d 369, in support of this proposition. However, while the court in McDonald stated that the defendant gas company should have foreseen that some harm would result from the subsidence of its repair work in the excavation and its failure to prevent or correct its deterioration, the court specifically held that this evidence merely supported the jury's conclusion of liability. The court did not conclude, nor was the issue before it, that such evidence would make the gas company liable as a matter of law.
• 1, 2 In the present case, evidence adduced at trial showed that defendant had backfilled the trench with pneumatically tamped sand and covered the top with "cold patch" blacktop. The permanent "hot patch" could not be obtained during the winter. However, defendant had placed an order for the "hot patch" so that the permanent repair would be made when it became available. The jury further heard evidence that Horace Biggers, defendant's foreman on this job, had on one occasion returned to the location and found the trench to be level. The jury had before it a photograph which purportedly showed the trench as it existed on the day of the accident. This evidence could have established that defendant acted reasonably under the circumstances. The question of the absence or existence of negligence should be resolved as a question of law and a verdict directed only when the facts are such that there could be no difference in the judgment of reasonable men as to the inferences to be drawn from the facts. (Carlson v. Dorsey Trailers, Inc. (1977), 50 Ill. App.3d 748, 753, 365 N.E.2d ...