Appeal from the Circuit Court of Cook County; the Hon. James
E. Sullivan, Judge, presiding.
PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Plaintiff brought suit against the city of Chicago for injuries suffered from a fall on a city sidewalk. The jury found for plaintiff and against defendant on the issue of liability, assessing the total amount of damages suffered by plaintiff as a proximate result of the occurrence to be $20,000, then reduced that amount to $5,000 actual recoverable damages pursuant to a finding that plaintiff was 75% contributorily negligent. Plaintiff appeals the award of damages, contending that: (1) the trial court erred in denying plaintiff's motion for a directed verdict on the issue of contributory negligence; (2) assuming arguendo that the issue of contributory negligence was properly submitted to the jury, the jury's finding that plaintiff was 75% contributorily negligent was against the manifest weight of the evidence; (3) the trial court erred in submitting erroneous and confusing jury instructions on the issue of comparative negligence; and (4) defendant's reference during closing argument to a non-appearing occurrence witness was improper and prejudicial to plaintiff. For the following reasons, we reverse the judgment of the trial court as to plaintiff's contributory negligence and remand the cause with directions that the trial court enter judgment in the full amount of the jury's award of damages.
On April 7, 1980, plaintiff refiled her negligence action against the city of Chicago which had been previously dismissed without prejudice. Thereafter, on December 1, 1981, pursuant to the Illinois supreme court's adoption of the comparative negligence doctrine (Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886), defendant filed the following "affirmative defenses," alleging plaintiff's contributory negligence:
(a) Plaintiff carelessly and negligently failed to look when she should have looked and seen that which was within her range of vision;
(b) Plaintiff carelessly and negligently walked upon an area which she should have known, in the exercise of due care, would cause her some danger;
(c) Plaintiff carelessly and negligently walked upon an area which she knew or should have known, in the exercise of due care, presented some danger to her when she could have used another area which presented no danger to a reasonably prudent person;
(d) Plaintiff carelessly and negligently failed to avoid the area which she, in the exercise of due care, should have avoided;
(e) Plaintiff carelessly and negligently failed to anticipate a danger to herself when she knew or should have known, in the exercise of due care, that a danger existed.
At trial, plaintiff, age 72, testified that on February 11, 1972, approximately 2:30 p.m., she and a neighbor, Albina Bavasik, were walking to a nearby grocery store in Chicago when plaintiff's "right foot got caught in the sidewalk" in front of 6608 South Kolin, causing her to fall face down on the sidewalk and injure her right shoulder. Bavasik and two neighborhood girls helped plaintiff to her feet and assisted her in walking back to her house. Plaintiff's son then drove her to the hospital.
Plaintiff described the day of the accident as sunny and bright. Although there was approximately an inch of snow over the ground from the previous night's snowfall, the ground was not slippery or icy. She was wearing a winter coat and rubber boots with low heels.
When shown photographs taken by her husband of the scene of the accident, plaintiff stated that they accurately portrayed the condition of the sidewalk on the day that she fell. Plaintiff thought that her husband took the photographs either the night of the accident or the next day. However, she was not sure because she had been in the hospital for 10 days following the accident and had not gone with him. She did not recall how he knew exactly where the accident had occurred. After being released from the hospital, plaintiff drove with her husband to the scene of the accident.
On cross-examination, plaintiff stated that although she has lived at 6733 South Kolin for approximately 32 years, she had never walked on the west side of Kolin, where the defective sidewalk was located, until the day of the accident. At the time of her fall, she was looking ahead, walking slowly, and talking with her neighbor. Plaintiff described the sidewalk defect as an elevation between slabs which at the time was obscured by the snow.
Plaintiff's husband, Henry Szarat, testified that although he had not witnessed the accident, he obtained the address of the occurrence from a police report at the hospital and went to the scene immediately upon leaving the hospital on the night of the occurrence. Szarat identified the photographs he had taken of the sidewalk and the building at 6608 South Kolin, stating that he had taken the photographs "a couple of months later," and that, except for the lack of snow in the photographs, they accurately portrayed the condition of the sidewalk as it was on the night of the accident.
On cross-examination, Szarat testified that when he inspected the scene of the accident on the night of the occurrence, there was a light dusting of snow on the sidewalk. The temperature was in the 30's and the snow was melting. Szarat further stated that the ...