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12/19/89 John Marshall, A Minor, By v. the City of Centralia

December 19, 1989

JOHN MARSHALL, A MINOR, BY EVELYN MARSHALL, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT

v.

THE CITY OF CENTRALIA, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

549 N.E.2d 652, 193 Ill. App. 3d 334, 140 Ill. Dec. 1 1989.IL.1976

Appeal from the Circuit Court of Marion County; the Hon. William R. Todd, Judge, presiding.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. HOWERTON and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

On October 19, 1985, John Marshall, a minor, and no relationship to our first chief Justice insofar as the record reflects, sustained an injury to his right knee when he fell in an open sewer manhole in the City of Centralia. The manhole was located at the intersection of Sycamore and McCord on the west side of Sycamore and approximately two feet north of McCord. The plaintiff was walking east on the sidewalk on the north side of McCord towards Sycamore, which is a north-south street. As he approached the intersection, he noticed that on the far side of Sycamore, his projected path of travel, the sidewalk was covered with mud. Being unwilling to subject his red Ponys to such conditions, he decided to skirt the muddy area by moving from the sidewalk into the street. Although the record does not reflect the entire course of study being followed by young John, we may safely assume that Euclid and/or his good friend, Pythagoras, will play some part in his studies, because he chose a hypotenusal path to accomplish his goal of mud-avoidance. He moved diagonally from the sidewalk across the short span of grass, and as he was almost ready to step into the street, his right foot went into an open manhole, therefore thwarting both his ability to keep his red Ponys clean and injuring his right knee.

The injury in this case occurred not on the roadway, but in the parkway owned by the defendant. Although there is some confusion in the record as to the directions and locations, the following rough diagram is an approximation of the locations of the streets, the manhole and the plaintiff's originally intended direct path and the alternate route he took to avoid the muddy sidewalk.

Suit was brought by his mother and next friend and the amended complaint alleged:

"4. That at the above-mentioned time and place, because of a defect in the sidewalk, the plaintiff was required to deviate from the sidewalk and walk upon a grassy area, and thereby fell by slipping and falling into an open sewer manhole at the curb sustaining serious and permanent injuries as will hereinafter be more fully alleged.

5. That at the above-mentioned time and place, the defendant, by and through its agents, servants and employees, committed one or more of the following negligent acts and/or omissions:

(a) that the defendant negligently failed to maintain its curbs and sewer manholes;

(b) that the defendant negligently failed to repair the sewer manhole covers;

(c) that the defendant failed to periodically inspect and repair its broken and/or misplaced sewer manhole covers;

(d) that the defendant failed to keep its sidewalks, walkways, curbs and streets in a reasonably good condition for use by the ...


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