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Brooks v. City of Chicago

OPINION FILED APRIL 22, 1982.

HOMER BROOKS, A MINOR, BY DOROTHY BROOKS, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES L. GRIFFIN, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Homer Brooks, appeals from an order of the trial court which set aside the jury's verdict in his favor and which entered judgment notwithstanding the verdict for defendant, the City of Chicago (City). Plaintiff raises the following issues for review: (1) whether the trial court erred in holding that plaintiff was guilty of contributory negligence as a matter of law; (2) whether the trial court erred in holding that there was insufficient evidence to support a finding that defendant was negligent; (3) whether the trial court erred in holding that the verdict of the jury was excessive or a compromise verdict; and (4) whether the trial court erred in holding that the municipal notice served upon defendant was defective and fatal to the cause of action.

We reverse.

Testimony at trial established the following.

Homer Brooks, plaintiff's father, testified that on July 3, 1974, he saw his son, Homer Blane Brooks, with a motorcycle in the alley behind their house. The cycle was owned by a professional motorcyclist who had asked plaintiff to clean it. Because the cycle looked new and expensive, Brooks did not want his son to be responsible for it. Brooks wanted to take it to a friend's garage where the owner could later pick it up. Brooks drove his car, following Homer, who rode the motorcycle. As Homer was riding on Ridgeland Avenue, a one-way street running north, someone crossed the street in front of him. When Homer turned to the right to avoid hitting the person, the motorcycle bounced straight up. Then it began bouncing again from holes in the street and turned on its side. Thereafter, his son failed to control the cycle and fell off. In Brooks' opinion, the speed of the motorcycle was 20 miles per hour. Brooks had been about two car lengths behind the cycle.

The father went over to his son who was bleeding from his ears and nose. Brooks noticed in the street a 3-inch deep depression which was about 4 or 5 feet in length. There were scratch marks alongside potholes. Brooks identified the scratch marks from a photograph taken the evening of the accident. The photograph did not show the potholes or the depression because they were south of the area photographed. After the accident, Brooks went to a nearby fire station to summon an ambulance which took Homer to Jackson Park Hospital. Brooks did not talk with the police at the accident scene or at the hospital.

According to Brooks, his son had learned to ride a motorcycle from a neighbor and had no formal training. Homer had never owned a motorcycle, but he had owned a minibike.

Larry Stafford testified for plaintiff. On July 3, 1974, he was 17 years old and living at 7949 Ridgeland in Chicago where he had resided since 1970. The accident occurred between 5 and 7 p.m. during daylight hours. Stafford was standing on the lawn of his house which was on the east side of the street; he and a friend were talking. He heard a motorcycle, turned and saw its light, then turned back to talk with his friend. Then he saw a girl, who was about 15 years old, run across the street in front of the motorcycle. The cyclist swerved to the right to avoid hitting her, straightened out the cycle which then hit a sewer. The cycle bounced and began hitting depressions in the street; the cyclist lost control. The cycle continued to bounce and tilted. The cyclist could not straighten out the cycle and it fell on its side after sliding down the street. The cycle and the plaintiff ended up on the east side of the street.

Stafford estimated the speed of the motorcycle at 15 to 20 miles per hour. Scrape marks started about 7 feet from the sewer and went beyond the depression which had existed for as long as Stafford had lived there. The witness stated that driving a car over the depression was like driving over speed breakers. Stafford also testified that he did not know the plaintiff or his father. On rebuttal, Stafford said that repairs were made on Ridgeland after July 3, 1974, and before May 12, 1975, when photographs were taken of the street which did not show a depression.

Joseph Flores, a Chicago police officer, arrived at the scene of the accident at 7:40 p.m. which was 5 to 20 minutes after the accident. The weather was clear and dry; it was just beginning to get dark. Flores could not recall seeing either the ambulance or the plaintiff at the accident scene, but he did see plaintiff in the emergency room of the hospital. The motorcycle was lying on its side in the middle of Ridgeland Avenue and marks in the center of the street led up to it. Flores measured 87 feet of scrape marks. An evidence technician photographed the marks. A diagram in Flores' report indicated that there was a dip in the street, but he could not tell if the photograph of the marks included the area of the dip.

When Flores testified on behalf of defendant, he stated that the dip was not sufficient to cause a cyclist to lose control and that there were no potholes in the street. From the length of the marks, he determined that plaintiff was traveling 45 to 50 miles per hour. Flores said that if plaintiff had been going only 15 miles per hour, the marks would have been 10 to 15 feet in length. After the accident, a man asked Flores what had happened. When Flores asked the man who he was, the man said, "I am the kid's father." The officer said, "I don't know. I just got here." Flores did not remember what the father looked like, nor did he write the father's name in the police report or make notes of the conversation. Flores said that pictures taken on May 12, 1975, showed the street in the same condition as it appeared at the time of the accident.

Dorothy Brooks, plaintiff's mother, testified that after her son was injured, he remained in intensive care at the hospital for 9 days. During his hospitalization, Homer was paralyzed on the left side of his body. He could not use his left arm and leg, his mouth was twisted, his eyes were crossed and he appeared to be confused. Homer was transferred from the hospital to the Schwab Rehabilitation Hospital for therapy. While there, he was depressed, confused and wanted to go home. A week after this transfer, Homer fell from a window and sustained a spinal injury. After a second hospitalization, Homer returned to Schwab for therapy. When he left the rehabilitation center, he walked with a limp in his left leg and used a cane. His eyes were crossed and he was still confused, forgetful and restless. Homer went to Spalding, a school for handicapped children, briefly. He also attended public high school for a short time. After a while, he secured a job pumping gas. In 1978, he was hired by U.S. Steel but was laid off in the spring of 1980. Mrs. Brooks stated that her son is still forgetful, has irritable moods and is irresponsible. At times, his eye pops out.

Dr. Isaac Martin Thapedi, a neurological surgeon, treated plaintiff in the emergency room of Jackson Park Hospital in July 1974. Plaintiff was unconscious and paralyzed on his left side. Spinal fluid was coming out of plaintiff's right ear; blood was flowing from his nose. Thapedi's diagnosis was basal skull fracture. Homer's brain stem was damaged.

When Homer was released from intensive care, he breathed on his own but was confused and disoriented, restless and agitated. The paralysis on his left side had improved. When Homer left the hospital, his speech was coherent, but he had periods of confusion and disorientation. He was still paralyzed on his left side, the arm to a greater extent than the leg. Paralysis of the ...


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