author: PRESIDING JUSTICE HIBBS

text:
    General Electric Company, Plaintiff-Appellee, v. Local 997 United Automobile Workers of America, Affiliated with American Federation of Labor; International Union, United Automobile Workers of America, Affiliated with American Federation of Labor; Ruth Warner et al., Defendants-Appellants.
    Gen. No. 10,048.
    Third District.
    December 12, 1955.
    Released for publication December 29, 1955.

      Gene Groppi, of Westville, for appellants.
    Bookwalter, Carter, Gunn & Hickman, of Danville, Mayer, Friedlicli, Spiess,- Tierney, Brown & Platt, of Chicago, L. E. Birdzell, Jr., of Plainville, Connecticut, for appellee.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

The defendants bring this cause to this court by appeal from an interlocutory order denying their motion to dissolve a temporary injunction issued without notice and without bond.

The plaintiff’s verified complaint filed in the Circuit Court of Yermilion County on July 11, 1955 alleged that the plaintiff, General Electric Company, a corporation, organized under the laws of the State of New York and duly qualified to do business in the State of Illinois, was the owner and operator of a ballast manufacturing plant with factory and offices located in the City of Danville, in said County; that it was engaged in supplying ballasts for use by manufacturers of fluorescent lighting fixtures; that the first two defendants were, respectively, a local Union 997 and the International Union, United Automobile Workers of America, both of which are voluntary unincorporated associations of labor organizations who represent production employees in the plaintiff’s plant; that various employees of the plaintiff, members of said local and International Union, had been continuously on strike at plaintiff’s plant for approximately three weeks; that the first six named individual defendants were respectively, the president, vice-president, financial secretary, recording secretary, chairman of the bargaining committee and vice-chairman of the bargaining committee for Local 997; that the remaining defendants were regional representatives of the International Union and the regional director thereof; that the defendants and various members of said labor organization had maintained for approximately three weeks a picket line at the entrance of plaintiff’s plant, composed of large numbers of members and other persons who had been engaged in picketing said plant by massing at said entrances in front thereof and on the sidewalks and streets affording entrance thereto, far in excess of the number necessary or appropriate to any lawful or legitimate purpose of picketing; that the defendants have combined and conspired with each other and with other persons not named as defendants to deprive the plaintiff of the lawful use and management of its plant by threats, suggestions of danger and physical obstruction of ingress and egress to and from said plant, and by said means and by intimidation conspired and sought to prevent other persons from working at said plant; that each working day since June 21, 1955 at about tbe hours of 7:00 A. M. to 9:00 A. M., and about 3:30 P. M., when employees are scheduled to enter and leave the plaintiff’s plant, the defendants had picketed the entrances to said plant for the purpose and effect of overawing, intimidating and physically obstructing those desiring to enter and leave; that said pickets massed shoulder to shoulder and on some occasions have locked hands or arms in front of such persons or vehicles, and refused, notwithstanding requests to do so, to make way for such persons or vehicles, with the effect that such persons or vehicles cannot enter the said premises without coming into bodily contact with said pickets and doing them great bodily harm; that the pickets have massed and congregated against such persons and vehicles and by threats, expressed in words and numbers and demeanor and by violence have intimidated and coerced and are continuing to intimidate and coerce such persons and drivers of such vehicles not to enter plaintiff’s premises; that for the purpose of intimidating and coercing employees who desire to work at plaintiff’s plant the defendants have instigated, aided and condoned the following of automobiles driven by employees desiring to work, attempting to force and forcing such automobiles off the road, and assaulting in front of his home an employee, cruising in the neighborhood of such employees, as well as making threatening telephone calls to such employees; that despite the presence and efforts of the law enforcement authorities of said City, County and State at the said plant, the defendants by massing pickets in great and uncontrolled numbers, have, now are, and unless enjoined will continue the unlawful course of conduct above set forth; that the defendants have blocked the entrance to plaintiff’s parking lot and compelled all employees desiring to come to work to cross the picket line on foot; that only employees whom the Union desires to admit to said plant have crossed the picket line on foot, although numerous other employees desire to enter the plant hut are deterred by the intimidation, threats and violence of the defendants.

The complaint further alleged that on July 11, 1955 certain employees of the plaintiff attempted to drive into the parking lot but were prevented from doing so by the threats, violence and obstruction of the defendants, until large numbers of police officers forcibly removed the pickets and made way for approximately twenty-five cars over a period of about two hours; that the plaintiff is advised by the public authorities that they cannot continue to furnish the large number of police officers necessary to maintain ingress and egress at plaintiff’s plant, and in any case that the operation of the plaintiff’s said plant requires that a very large number of vehicles enter and leave daily, and it is not physically practicable to operate said plant if each vehicle or truck entering requires a heavy police escort; that because of the acts hereinabove alleged the plaintiff is suffering immediate, grievous and irreparable harm for which its damages are very large but incapable of ascertainment at law; that the plaintiff is without remedy in the premises except in a court of equity and unless the said defendants are enjoined the said unlawful acts will be continued by defendants and plaintiff will continue to suffer great and irreparable harm, injury and loss and damage to its said property.

The complaint prayed that a temporary injunction immediately issue restraining and enjoining the defendants and all of their members, agents, employees, officials and representatives, aiders and abettors and all those acting in consort with them, from engaging in mass picketing of plaintiff’s plant at Danville or having at, or in the vicinity of said plant, pickets in excess of the total number of ten, or having at or near any single entrance to said plant, pickets in excess of the total number of five; from physically obstructing, entering to and departure from plaintiff’s said plant, all persons and vehicles; from menacing, intimidating, threatening, harassing, assaulting or using vile or abusive language against any persons leaving or entering the plaintiff’s plant; from threatening, coercing, by intimidating or assaulting, employees of the plaintiff while on their way to or from the plaintiff’s said plant; and from advising or encouraging or assisting or participating in the doing of any of the things which are hereby forbidden.

The complaint further prayed for other relief, that said temporary injunction be issued without notice and without bond, and that upon a hearing said injunction be made permanent.

This complaint was supported by an affidavit of the general manager of the ballast department of the General Electric Company, which alleged that for approximately three weeks before July 11th certain employees of the Danville plant of plaintiff, represented by the defendants in said suit, have engaged in mass picketing and intimidation, coercion and prevention by force, threats of force and violence of ingress and egress to and from said plant, as set forth in the complaint; it further alleged that on July 11th it became and was necessary that the law enforcement officials of the City of Danville, County of Vermilion and State of Illinois be called by plaintiff to attempt to halt the said unlawful acts described in the complaint; that on said date between the hours of 6:55 A. M. and 9:00 A. M., at and near the entrances to plaintiff’s Danville plant, there occurred the mass picketing by said defendants, their obstruction of vehicles and the free entry to and from said plaintiff’s said plant, by menacing, intimidating, threatening and harassing action against persons seeking to enter said plant, as are shown by the attached photographs made on said date and at said hours and which truly and correctly portray the scene and the events which took place there at that certain time and place.

Attached to said affidavit and part of the record herein are fifteen photographs showing the mass picketing, the obstruction by the strikers to the entrance of automobiles, and threatening gestures by strikers toward people or occupants of the automobiles and police officers attempting to make way for the automobiles to enter the plant.

On July 11, 1955 the complaint, the affidavit and the photographs were presented to the Circuit Judge of Vermilion County. At the conclusion of the hearing the court said: “I have a distinct aversion to issuing an injunction without notice . . . I’ll give you an early hearing on the injunction but I don’t feel like granting it without notice and without bond.” Again the court said: “Very well, let the docket show: ‘Motion for temporary injunction without notice and without bond is denied. Application for temporary injunction set for Wednesday, July 13, 1955 at 9:00 A. M. Verbal notice to be given this evening, written notice by 9:00 o’clock tomorrow morning.’ Can you do that?” Later the court said with reference to the docket entry: “Add the words, ‘without prejudice to its re-presentation and renewal, if necessary.’ ”

It appears from the proceeding had on July 18,1955, upon a motion to dissolve the temporary injunction in said cause, and from affidavits of Frank E. Creen and Eobert Z. Hickman, the latter being one of the attorneys for plaintiff, filed on that date nunc pro tunc as of July 12, 1955, that in the afternoon of July 11, 1955 at about 4:00 P. M., the sheriff advised the plant superintendent of the plaintiff whose employees were about to leave at 4:30 P. M. that afternoon not to attempt to leave because of the danger and menacing character of the crowd in front of the building; that they should wait until lie could get sufficient force to take them out; that at about 7:10 P. M. two state troopers came and told the employees to form tbeir cars in line and to follow out the state police car; that at about 7:15 P. M. the twenty-five cars which had entered the plant in the morning formed a line and followed the state patrol car to the east entrance of the main parking lot; that a state police detail on foot had opened a corridor through the mob at the east entrance; that the state police car went through the corridor and turned left; that as the first car containing General Electric employees entered the corridor opened by the police, the crowd, estimated at approximately a hundred and fifty persons, immediately closed around the entrance, then slid out and out-flanked the police car and began damaging cars farther back in the line; that pickets kicked the sides of cars, pummelled them with their fists and began slamming folding chairs against the front, side and back windows, breaking them, and hitting the hood and back of cars with chairs, ripping off radio antennas and side-view mirrors; that the pickets were violent and menacing, and as the last few cars left, the pickets began to throw rocks; that at about the same time the state police fired one or two tear gas shells scattering the crowd; that Hickman received a telephone call at his home about 10:00 P. M. from the State’s attorney stating he was at the jail in conference with the sheriff, the captain of the state police and Mr. Gene A. Groppi, an attorney who represented the defendants, and that the law enforcement officers were of the opinion that uncontrolled and explosive violence might ensue from the situation then existing, and that a general breakdown of law and order was threatened. Hickman over the telephone consulted the Circuit Judge who had heard the application for temporary injunction, reported the situation to him and asked him to verify the report by talking by telephone to the persons named above at the Vermilion County jail. The trial judge then talked to Mr. Groppi over the telephone and asked him, “Mr. Groppi, do you think this situation is dangerous?” The judge said at the hearing on the motion to dissolve the injunction with reference to Groppi’s answer: “And it rings in my ears yet the answer that he gave me, in all sincerity and as an upstanding and honorable lawyer would represent matters .to a court. At that moment I made up my mind that in the matter of public interest it was my duty irrespective of anything else to grant this injunction. I then called Mr. Hickman and told him to bring the injunction down and that I would grant the injunction without notice and without bond, at the same time asking Mr. Hickman to prepare the affidavits reflecting for the record the matters that had been reported here by him to me and reflecting the situation. I do not think I had any other alternative than to grant this injunction.”

The order for the temporary restraining order entered on July 12, 1955 enjoined the defendants: (a) From engaging in mass picketing of the plaintiff’s said plant at Danville, or having at or in the vicinity of said plant pickets in excess of the total number of ten or having at or near any single entrance to the said plant pickets in excess of the total number of five; (b) From physically obstructing entry to or departure from the plaintiff’s said plant of persons or vehicles; (c) From menacing, intimidating, threatening, harassing, assaulting or using vile or abusive language against any person entering or leaving the plaintiff’s plant; (d) From threatening, coercing, following, intimidating or assaulting employees of the plaintiff while on their way to and from the plaintiff’s said plant, or at any other time; (e) From advising or encouraging or assisting or participating in the doing of any of the things which are herein forbidden.

The defendants’ motion to dissolve the temporary injunction was based upon the ground that it was improperly issued without notice to defendants of the application therefor, contrary to the provisions of Sec. 3 of Chap. 69, Ill. Rev. Stat. 1955 [Jones Ill. Stats. Ann. 109.351].

It is contended by the defendants that the trial court improperly on July 18, 1955 at the hearing to dissolve the temporary injunction permitted the affidavits of Green and Hickman to be filed nunc pro tunc as of July 12, 1955, and that the validity of the order granting the temporary injunction is to be determined as of the state of the pleadings at the time the injunction order was entered. We do not find it necessary to pass upon whether the court should have allowed the affidavits to be filed nunc pro tunc. We believe that the verified complaint and supporting affidavit and photographic exhibits referred to in such affidavit presented with the complaint justified the trial court in issuing the temporary restraining order on July 12th without notice and without bond.

See. 3 of Chap. 69 of Ill. Rev. Stat. 1955 provides: “No court or judge shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it appears, from the complaint or affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.” The courts have repeatedly held that mass picketing and violence, obstruction of ingress and egress, threats, intimidation and coercion have been held to be restrain-able without question. (Ossey v. Retail Clerks’ Union, 326 Ill. 405; Fenske Bros. Inc. v. Upholsterers International Union of North America, 358 Ill. 239; Meadow-moor Dairies v. Milk Wagon Drivers’ Union, 371 Ill. 377; Ellingsen v. Milk Wagon Drivers’ Union Local No. 753, 377 Ill. 76; Rosen v. United Shoe & Leather Workers Union Local 48, 287 Ill. App. 49; Precision Scientific Co. v. International Union of Mine, Mill & Smelter Workers, 2 Ill.App.2d 531; American Zinc Co. of Illinois v. Vecera, 338 Ill. App. 523.)

In Ossey v. Retail Clerks’ Union, snpra, at page 417, it is said: “The complainants’ business is a property right, and free access to their places of business by the complainants, their employees and customers is an incident to that right.” (Citations.) “The appellants’ intention to inflict loss upon the complainants and the consequent serious loss are clear. To accomplish their purposes the appellants resorted to obstruction, intimidation and violence. Even if the validity of the act invoked by the appellants be assumed, a question not now decided, it afforded them no immunity for their acts.”

It is asserted by the plaintiff and not denied by the defendants on this record that the picketing of the plaintiff’s plant was an unlawful act or acts.

The principal contention made by the appellants is that the complaint and the affidavit attached thereto did not warrant the conclusion that the rights of plaintiff would have been unduly prejudiced if notice of the application for injunction had been given the defendants. In passing on this question we must consider the verified complaint, the affidavit and also the photographic exhibits taken on July 11, 1955 attached to the affidavit.

In Terminal Railroad Ass’n of St. Louis v. International Ass’n of Machinists, 333 Ill. App. 288, a temporary restraining order was issued without notice, restraining the defendants from trespassing or congregating on the tracks of the plaintiff and prohibiting them from interfering in any way with the transporting of railway cars to and from the Granite City Steel Company. The court denied a motion to dissolve the injunction. The defendants contended in that case that there was no justification for the issuance of the injunction writ without notice in the face of Sec. 3, Chap. 69, Ill. Rev. Stat. 1947 [Jones Ill. Stats. Ann. 109.351], which prohibits the issuance of an injunction without notice, unless it appears that the rights of the plaintiff will be unduly prejudiced, if such injunction is not issued immediately and without notice, and the court say at page 292: “As to whether an injunction shall issue without notice in any case depends upon the particular facts in any such case, and is within the sound discretion of the Chancellor, which discretion courts of review will not interfere with unless the record shows an abuse of such discretion.” (Citations.)

Irreparable injury is a phrase often used as meaning “undue prejudice” and has been defined by Wood on Nuisances as follows: “By irreparable injury is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury, or great damage; but that species of injury, whether great or small, that ought not to be submitted to on the one hand, or afflicted on the other, and which, because it is so large on the one hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law.”

Again in Espenscheid v. Bauer, 235 Ill. 172 at page 176 it is said: “ ‘Irreparable injury, as used in the law of injunctions, does not necessarily mean that the injury is beyond the possibility of compensation in damages nor that it must be very great; and the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages, only, often furnishes the very best reason why a court of equity should interfere in a case where the nuisance is a continuous one.’ ”

The appellee was the operator of a ballast manufacturing plant with factory and offices connected therewith in the City of Danville. Its products were sold to certain continuing customers. Its factory constitutes a property right and the free access to such factory by the plaintiff and its employees is an incident of that right. The defendants to accomplish their purpose in the strike resorted to unlawful obstruction, mass picketing, intimidation and with some evidence of violence, which conduct had continued for substantially three weeks, until at the time of the issuance of the injunction, mobs of people were gathered at the entrance to the parking lot of the plant and obstructing the free passage of employees to and from the factory. The photographic exhibits hereinbefore referred to show not only obstruction of vehicular traffic intending to enter the plant, hut also intimidation and threatening-gestures to the employees occupying the automobiles. Even the city and state police were unable to furnish free access and egress to and from the parking lots. Employees were prevented from entering their place of occupation and thereby the production of the plant was unlawfully diminished. Because the precise detailed consequences of the invasion of the rights of the plaintiff, appellee here, cannot be predicted or measured is precisely why equity intervenes in such instance. The conduct of the defendants and their associates in their unlawful mass picketing and obstruction at the entrances to appellee’s plant and preventing- employees of the plaintiff from entering- the plant and premises of the appellee constituted irreparable damage and unduly prejudiced the appellee in this case.

The above views of the court are based on the state of the record as of July 11th and 12th, 1955, and we find no reason to pass upon the alleged error of the trial court on July 18, 1955 in permitting the filing of the Green and Hickman affidavits nunc pro tunc as of July 12th.

Appellants further contend that the court erred in issuing the temporary writ without bond and call our attention to Sec. 9 of Chap. 69 of the Ill. Rev. Stat. 1955 [Jones Ill. Stats. Ann. 109.357], which is as follows: “In all other cases, before an injunction may issue, the plaintiff shall give bond in such penalty, upon such condition and with such security as may be required by the court or judge: Provided, bond need not be required when, for good cause shown, the court or judge is of opinion that the injunction ought to be granted without bond.” Appellants’ motion to dissolve was based on lack of notice and did not assign as a ground the waiver of the bond. In this state of the record the issue as to the waiver of the bond by the trial court is not before this court for review.

Furthermore the purpose of the bond is to secure defendants for damages which may be assessed in the event the injunction is unlawfully issued. A defendant shall not be deprived of this security except where a showing is made that complainant is unable to give bond or that he is capable of responding in damages or that no injury can result if the bond is excused. In this case the injunction order did not restrain the defendants from doing anything that they had a lawful right to do. They were not restrained from peaceful picketing. As a matter of fact the order permits them to have ten pickets about the plant of the appellee and not more than five pickets at each entrance to the parking lot. It is therefore evident that no injury could come to any of the defendants through the injunction issued here, and consequently there was no abuse by the court below in issuing the injunction without bond.

The interlocutory order entered herein by the trial court for a temporary injunction is affirmed.

Order affirmed.


source: Caselaw Access Project

author: JUSTICE EOVALDI.

license: Public Domain

text:
    Chris De Carlo, Plaintiff-Appellee, v. Florence De Carlo, Defendant-Appellant. Chris De Carlo, Plaintiff-Appellant, v. Florence De Carlo, Defendant-Appellee.
    Gen. Nos. 10,869, 10,891, consolidated.
    Second District.
    December 1, 1955.
    Rehearing denied December 29, 1955.
    Released for publication December 30, 1955.
    Foster A. Smith, for appellant; Pedderson, Menzimer, Carl & Conde, for appellee; Clifford A. Pedderson,' of counsel. Case No. 10891: Pedderson, Menzimer, Carl & Conde, for appellant; Clifford A. Pedderson, of counsel; Foster A. Smith, for appellee.
   Opinion by

JUSTICE EOVALDI.

Not to be pub-

lished in full.


author: JUSTICE EOVADDI

text:
    Alfred Farr, Plaintiff-Appellee, v. Chicago & Eastern Illinois Railroad Company, Defendant-Appellant.
    Gen. No. 10,886.
    Second District.
    December 29, 1955.
    Released for publication January 17, 1956.

      Eva L. Minor, of Kankakee, for appellant; Patrick C. Mullen, of Chicago, of counsel.
    Donald D. Zeglis, of Momence, and Dyer and Dyer, of Kankakee, for appellee.
   JUSTICE EOVADDI

delivered the opinion of the court.

For a second time, this case comes to our Court. In the first appeal judgment in favor of plaintiff in the sum of $6,250 was set aside for the failure of the trial court to withdraw from the jury the wilful and wanton counts of the complaint (3 Ill.App.2d 209 (Abst.)). In the second trial the jury again returned a verdict in favor of plaintiff, this time in the sum of $3,250, upon which the court entered the judgment from which this appeal is taken.

Originally there were four counts in the complaint, but on the second trial the case went to the jury on Count II, the other counts having been dismissed by plaintiff.

Count II alleged in substance that the plaintiff was at the depot of defendant in Momence on June 13, 1951, for the purpose of unloading mail from defendant’s train No. 14, due to arrive and stop from the south on the east track of defendant’s railroad at approximately 5:50 a. m. (CST); that the plaintiff was lawfully on said premises and at all times mentioned in the complaint in the exercise of due care for his own safety; that at approximately 5:50 he crossed the double track of defendant on the crosswalk provided for that purpose from the west to the east for the purpose of unloading mail from defendant’s train No. 14 due from the south on the east track at said time, and thereupon defendant’s fast train No. 6 proceeding northerly at a great rate of speed struck an intended passenger of defendant, Alice B. Buntain, causing her body to immediately strike and injure him.

It was further alleged that defendant was negligent in one or more of the following:

(a) running its northbound passenger train, No. 6, on its easterly track through its depot in said city at a dangerous and unreasonable rate of speed, to-wit: 80 miles per hour.

(b) running its said train No. 6 at said dangerous and unreasonable rate of speed at approximately the same time that its passenger train, No. 14, also northbound on said easterly track, was due to stop at said depot.

(d) running its northbound passenger train, No. 6, on its easterly track through its depot in said city at a dangerous and unreasonable rate of speed, to-wit: 80 miles per hour, at approximately the same time its passenger train, to-wit: No. 14, also northbound on said easterly track, was due to stop at said depot without providing adequate warning to plaintiff and intended passengers of the approach of said fast train, to-wit: defendant’s train No. 6.

Plaintiff alleged that by reason of such conduct, he was permanently injured and disabled and was damaged in the sum of $15,000. The defendant’s answer denied all of the material allegations of the complaint.

At the close of plaintiff’s case and again at the close of all the evidence, defendant’s motion for directed verdict was denied. Subsequently, defendant’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and plaintiff’s motion for new trial were argued and overruled.

Defendant’s theory is that plaintiff failed entirely to prove that immediately before and at the time of the injury he was in the exercise of due care for his safety; that he failed to prove that defendant was guilty of negligence which was the proximate cause of his injuries; that the court erred in denying defendant’s motion for a directed verdict and for judgment notwithstanding the verdict; and that the jury was erroneously instructed at the request of the plaintiff.

On the 13th day of June, 1951, and for approximately a year and a half prior thereto, plaintiff was under contract with the Government to carry mail between the post office and the station of the defendant at Momence, Illinois, making some 6 or 7 trips a day to the station 7 days a week. On said June 13, plaintiff went to the station for the purpose of getting mail from train No. 14, a local northbound passenger train which was due to arrive at the depot at 5:51, Central Standard Time, 6:51 Daylight Savings Time. The railroad runs north and south through Momence. There are 2 tracks east of the depot, the east track being the northbound track and the west track being for southbound trains. In order for a person at the depot to board a northbound train or to receive mail from such train, it is necessary to cross both tracks on a board walk, which, was directly in front of the depot. The railroad tracks which plaintiff crossed were set in a railroad bed averaging one and one-half feet in depth. The bed was about one foot deep on the east side and a railroad tie or log formed the east side of this roadbed. The east side of the railroad bed was 2% feet east of the east rail of the east track. Above the bed on the east side, there was an asphalt platform used for passengers and for unloading of mail.

Plaintiff testified that on the morning in question he arrived at the station at about 6:30 a. m. (DST); there were about 15 or 20 other people at the station who were waiting for train No. 14; that, among others, he saw Mrs. Alice Buntain; that a person in the station looking south had an unobstructed view to the south to the curve in the track, which was one-half mile south; as the train came around the curve he heard the whistle; it was about 6:50 a. m. (DST); No. 14, the train he was waiting for, was due at 6:51; when he saw the train and heard the whistle, the people on the west side of the track started across to the other side; everybody started across when the train was seen coming around the curve; he got his cart and started across with it; the reason plaintiff customarily crossed the tracks after the passengers had started across was to avoid hitting them with his heavy cart which had 2 iron wheels and which was about 10 feet long; they crossed on a board walk which was 16 feet wide; plaintiff would run because the cart was heavy and it was easier to push while running; Mrs. Buntain started across a little ahead of plaintiff; about three-fourths of the way across the board walk plaintiff passed her; he was running and she was walking slowly; he thought the train which he had seen approaching was No. 14; he got across the track 4 or 5 feet, gave his cart a shove and started to turn around and got about half way around and he was struck by Mrs. Buntain’s body which knocked him against his cart which was east of him breaking his right leg, and causing him other injuries which are not set out in detail, as no contention is made by defendant as to the nature and extent of the injuries. At the time he was struck, plaintiff was completely across the railroad bed and 4 or 5 feet on to the asphalt platform.

Plaintiff further testified that he later learned that the approaching train was No. 6, the fast passenger train which did not stop at Momence and which was due to arrive at Momence at 5:06 (DST); that there was no warning or signal given that the train approaching was No. 6 rather than No. 14; that no mechanical signal was given; and that he knew that there were no railway employees on duty to give such warning until after 7:30 in the morning.

Harry Lambert testified for the plaintiff and said that he was a regular commuter from Momence to Chicago and that he was at the station on the morning in question and was standing in front of the depot when he heard the whistle of the train, and didn’t see the train; most of the passengers went across the tracks; he saw Mrs. Buntain walking slowly across the track; that he and Mrs. Buntain were the last ones to cross; and that when Mrs. Buntain was hit, plaintiff was across the tracks, standing 10 feet off the tracks alongside his mail truck. He testified further that he saw the train, just the glance that he had when he turned to his right and saw “that blue thing” on top of him and his opinion was that it was going 100 miles an hour; that he heard the train whistle. He further testified that No. 14 comes in so slowly that you can make 2 or 3 trips across; he knew right away it was No. 6 and never knew it to come within a quarter of an hour of the time that No. 14 was due. On cross-examination the witness testified that he was about 2 feet from Mrs. Buntain when she was hit; that plaintiff was across both tracks before Mrs. Buntain and said witness Lambert started across and that plaintiff was not moving, just standing across the tracks. He admitted that at the first trial he testified that he first said the speed of the train was 100 miles an hour and he came down to 80. The witness further testified that he was present at the inquest held on the body of Mrs. Buntain and that the engineer had the speed recording tape at the inquest; that the witness heard the testimony at the inquest, and that the engineer said the train was going 87 miles an hour. Defendant requested that such testimony be stricken but the court refused.

Alonzo Williams testified for plaintiff that he was employed by the Chicago Transit Authority in Chicago and lived in Momence and went back and forth every day on the defendant’s train No. 14; that when he got to the station that morning, there were other passengers there, most of them on the west side of the track; that a train approaching from the south could be seen for a distance of % mile; the witness was standing with other passengers at the north end of the depot, saw and heard the train coming around the bend from the south; the whistle on the train was blowing; 12 to 14 people started to go across the tracks; Alice Buntain got out of a ear and started to walk toward the crosswalk; plaintiff picked up his truck and started across; Alice Buntain was on the crosswalk and plaintiff right behind her; plaintiff ran across ahead of her and got 4 or 5 feet over on the asphalt platform, threw his truck ahead and made a slight turn like he was going to assist this woman. Williams further testified, “Then I saw just a flash and the body hurling ahead and the train cut off our view.” The witness testified that in his opinion the speed of No. 6 was 80 miles an hour and that when the train came around the curve, he realized from the length of the engine that it was not No. 14. The train was coming very fast, and that helped him to decide it was not No. 14. He testified further that he observed the Dixie Flyer coming from the south. In answer to the question, “Did there appear to be any let up in the speed until the time of the impact?” the witness answered, “Well, it didn’t so far as I observed. It didn’t appear like.that to me.”

Laura Jane Dolder testified for the plaintiff that she was a school teacher and was at the station at Momence to take train No. 14 to Chicago on June 13, 1951; that the train was due about 10 to 7; that while she was in the depot she heard the whistle of a train, and thinking it was her train coming, she got out of the depot and walked across to the east side; that the rest of the people went across; Mrs. Buntain was one of the last ones to go across and she was taking her time. She further testified that plaintiff got across the tracks and turned around to help Mrs. Buntain who was almost across and the train hit Mrs. Buntain and her body struck plaintiff while he was on the asphalt platform. On cross-examination she stated that when she made up her mind that it was the No. 6 train, it was probably half way from the bend to “us” and she didn’t know how far Alice Buntain and plaintiff were then; that Mrs. Buntain started out ahead of him and he passed her; and it seemed like he motioned her to follow him, he tried to hurry her up by motioning with his hand. “It seemed like that was about the time he started to run. I was watching them. After he motioned her to follow him she kept right on going.” She further testified that the whistle was blowing loud and often, almost continuously.

For the defendant, the engineer, Leon Van Lieu, now retired, testified that train No. 6 was a fast passenger train of 12 cars with Diesel engine, which engine was equipped with automatic bell, which was turned on at Danville and was ringing until after the accident. It was also equipped with 2 large horns. The morning in question was a clear, bright day and it was daylight when they went into Momence; that the train was due at 4:06 Standard time and it was one hour and forty-two minutes late, which made it 5:48 Standard or 6:48 Daylight time; the engineer and fireman were each in their places, the engineer on the east side and the fireman on the west side of the engine and that he sounded the horn at the whistling post about a mile south of the station and that he blew the whistle continuously and loud for Momence; that when he was 150 feet from the crosswalk, he noticed the mailman shoving his truck and a lady following him. They started across the northbound track. He blew the distress whistle and set the brakes in emergency and was going approximately 80 miles an hour which was the usual and customary speed through Momence. He testified further that after he saw them 150 feet ahead of him it would have been impossible to stop the train and that he tried to warn them with whistle and the bell. He further testified that it was not unusual for this train to be late those days and it was not too unusual for it to be going through Momence at about that time. The engineer had the speed recording tape which had recorded the speed of the train at the time and place in question and he said that it showed a speed of slightly more than 80 miles, about 83 miles an hour. The tape was in lead pencil and was a little more than 4 years old. On direct examination, he admitted having testified at the inquest of Alice Buntain as to the speed of the train. He denied that he stated the speed of the train as 87 miles an hour as testified to by plaintiff’s witness, Harry Lambert.

On cross-examination the engineer testified he did not slow down any for Momence and he knew that No. 14 was due to stop at Momence at 5:51 a. m. — 3 minutes from the time he went by the depot with No. 6; that he had passed No. 14 which was in St. Anne on the siding when he went by; that St. Anne is 10 miles from Momence; that he went through St. Anne at 60 miles an hour; that as he came through St. Anne he didn’t have the slightest idea that there would be a number of people waiting at Momence; that he never came by there when No. 14 was due before that he knew of; that he had been through there when No. 14 would be on the other main; he admitted that the curve south of Momence was less than one-half mile from the station and that from where he came around the curve he could never have stopped at the station. In answer to the question, “When you first saw what was at the station, you were unable to stop, matter what was there?” he answered, “I could never have stopped from where I could see.” He further testified on cross-examination that the defendant set the speed at 80 miles an hour and that he thought that was done by the Interstate Commerce Commission; that his orders came from time table instructions; that this speed of 80 miles an hour was the maximum anywhere on his route and that he was not to go over it according to the time table instructions which were his orders.

The conductor, brakeman and fireman all testified that the whistle was blown almost continuously going into the station, and that the speed of the train was 80 miles an hour, the usual speed through Momence. The fireman said that plaintiff and Mrs. Buntain were 3 to 4 feet from the track when he first saw them about 300 feet ahead of him; that the horn was being sounded at that time; that he was on the west side of the engine and could only see them while they were crossing the west or southbound track; that the engineer applied the emergency at about 150 feet from the walk.

Other people at the station who testified for defendant were Quellie Jenkins, Charles Minton and Paul Jones. They testified to substantially the same facts as the witnesses for the plaintiff. They agreed that the horn or whistle of the train was blowing continuously and that plaintiff and Mrs. Bnntain crossed immediately in front of the approaching train. The witness Min-ton testified that he called the Tower that morning and was told that No. 14 was late and that when he got to the station he told plaintiff that No. 14 would be late. Plaintiff denied this statement on rebuttal. Arlene Schwark, witness for defendant, testified that she was the court reporter for the Coroner in June, 1951, that she took the testimony at the inquest, and that she did not find anywhere in her notes that the engineer testified that his speed in coming through Momence was 87 miles an hour. On cross-examination she testified that she did not take any statements that were not made under oath, and what the engineer said outside of his testimony, she didn’t know.

It is clear from the evidence in this case that Alice Buntain was at the station of the defendant in Momence to take its train to Chicago for a visit with her son. Clara Hankey, one of the witnesses for the plaintiff, testified that she lived at Momence and was acquainted with Mrs. Buntain in her lifetime; that she took her to the train on the date in question and that Mrs. Buntain had a small suitcase; that she was going to visit her son and the train she was to take came into the station close to 7:00. She further testified that Mrs. Buntain was about 76 years old, and that she always helped her out of the car and took her suitcase into the station; and that when she got in her car and went home the train was not at the station, and that there were other passengers there. Passengers obliged to cross railroad tracks to board a train standing at a station have a right to suppose that the railway company will regulate the movements of its trains on the tracks to be crossed with due regard to their safety. Chicago, St. P. & K. C. Ry. Co. v. Ryan, 165 Ill. 88. In that case, the plaintiff did not see the train before he was struck and the proof showed a violation of one of its rules by defendant. The Supreme Court affirmed the judgments of the Appellate and Circuit Courts. It is for the jury to decide under all the circumstances of the case whether it is negligent for a person to cross a railroad track without looking down the track, and whether it is negligent for him to cross without looking more than once. Gills v. New York, C. & St. L. R. Co., 342 Ill. 455; Chicago & A. R. Co. v. Kelly, 182 Ill. 267, 273 (another case wherein defendant violated its rules); Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623, 628; Partlow v. Illinois Cent. R. Co., 150 Ill. 321, 327. When we consider the evidence in this case that plaintiff was’ on the asphalt platform at the time he was struck by the body of Mrs. Buntain, an intended passenger of the defendant, we cannot say as a matter of law that immediately before and at the time of the injury he was not in the exercise of due care for his safety.

As to its contention that plaintiff failed to prove that it was guilty of negligence which was the proximate cause of the injury, the evidence shows that defendant’s engineer was driving his train at a high rate of speed through Momence, without knowledge that several persons would be at the station waiting for another train, which travelled slowly, which was due at about the same time that the fast train went through Momence. The engineer admitted that he could not stop his train at the speed he was travelling from the time he came around the curve in order to avoid injuring anyone at the station; and he further admitted that he was violating one of the company’s rules as to rate of speed, which applied at all times.

The questions of fact in this cause have been passed upon by two juries and both have found appellant guilty of the negligence charged against it. Where two juries have found the issues the same way, we should be slow to set aside the verdict of the jury. Bonnier v. Chicago, B. & Q. R. Co., 2 Ill.2d 606, 614; Illinois C. R. Co. v. Schmitt, 100 Ill. App. 490, 493; Silberman v. Washington Nat. Ins. Co., 329 Ill. App. 448; Goldstein v. Metropolitan Life Ins. Co., 324 Ill. App. 168; Greer v. Shell Petroleum Corp., 281 Ill. App. 238 ; Doerr v. City of Freeport, 239 Ill. App. 560; Jenisek v. Riggs, 320 Ill. App. 158; Meier v. Cleveland, C., C. & St. L. Ry. Co., 206 Ill. App. 285; Romano v. Rockford City Traction Co., 230 Ill. App. 402. The question of negligence is one of fact for the jury. Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495, 497; Painter v. Keeshin Motor Express Co., Inc., 297 Ill. App. 557, 559; Russell v. Richardson, 302 Ill. App. 589, 597. Whether plaintiff failed entirely to prove that immediately before and at the time of the injury he was in the exercise of due care for his safety, and whether defendant was guilty of negligence which proximately caused plaintiff’s injury, were questions of fact to be decided by the jury.

It is urged by defendant that the court erred in denying its motions for a directed verdict and for a judgment notwithstanding the verdict. These motions present the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Seeds v. Chicago Transit Authority, 409 Ill. 566; Lindroth v. Walgreen Co., 407 Ill. 121 at page 130; Gorczynski v. Nugent, 402 Ill. 147 at page 156; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571 at page 576. We are not concerned with the weight or credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. Lindroth v. Walgreen, supra, at page 130. From what has heretofore been said on the questions of the due care of plaintiff and of the negligence of the defendant, we cannot say that all reasonable minds would reach a conclusion contrary to the jury’s findings. The trial judge properly denied the motions for directed verdict and for judgment notwithstanding the verdict.

Objection is made by defendant to plaintiff’s instructions 2, 3 and 4. Eight instructions were offered by plaintiff, of which seven were given by the court. Sixteen were offered by defendant, of which fifteen were given. Instructions are taken as a connected series, and the jury cannot single out one instruction and disregard others, but must take all of the instructions together, as the law. The jury was properly instructed by defendant’s instruction No. 8 as to the issues which it was to determine. When we compare plaintiff’s instructions 2 and 3 with defendant’s instruction 9, it is apparent that if any fault appeared in said instructions of the plaintiff, it was overcome by said defendant’s instruction 9. When we compare plaintiff’s instruction 4 with defendant’s instruction 21, we do not see where the jury could have been misled by the instruction complained of. The jury was amply informed by other instructions given by the court on behalf of the defendant as to the various situations under which a verdict of not guilty would be required, and as to the requirements to be met by plaintiff before he would be entitled to a verdict in his favor. When we compare the three instructions complained of with the instructions given on behalf of the defendant, it appears that the jury was properly instructed as to the law of this case and that it was not confused by the instructions given for the plaintiff. Instructions which do not mislead the jury do not require a reversal, even though they are faulty. McNamara v. Melson, 237 Ill. App. 279, 283; Tierney v. Kane, 133 Ill. App. 72, 74; Rowell v. Chicago G. W. R. Co., 92 Ill. App. 103, 105.

Finding no material error in the record, the judgment of the circuit court will be affirmed.

Judgment affirmed.

DOVE, P. J. and CROW, J., concur.


author: JUSTICE CROW

text:
    Irene Arvidson, Appellee, v. City of Elmhurst, a Municipal Corporation, Appellant.
    Gen. No. 10,846.
    Second District.
    January 3, 1956.
    Released for publication January 23, 1956.

      Sears and Streit, and George E. Billett, all of Chicago, for appellant; Barnabas F. Sears, George E. Billett, Lloyd J. Tyler, Jr., and C. Robert Yellin, all of Chicago, of counsel.
    Vogel & Vogel, of Chicago, for appellee; L. H. Vogel, B. C. Vogel, and R. C. Johnstone, all of Chicago, of counsel.
   JUSTICE CROW

delivered the opinion of the court.

The defendant, City of Elmhurst, appeals from a verdict and judgment in favor of the plaintiff Irene Arvidson, for $9,000, in a personal injuries suit. The trial was had before the Court and a jury. The defendant filed motions for a directed verdict at the close of the plaintiff’s evidence and at the close of all the evidence, for judgment notwithstanding the verdict, and for a new trial. All were denied by the Trial Court.

The plaintiff in her complaint alleged, so far as material, that on October 20, 1950 she was walking upon a sidewalk which ran north and sonth on the west side of South York Street in Elmhurst; that she was in the exercise of due care for her own safety; that the defendant had control over the sidewalk and owed a duty to the plaintiff to maintain the sidewalk in a good and safe condition; that the defendant allowed the sidewalk to be and remain in bad and unsafe repair and condition, and permitted it to be and remain broken, decayed, uneven, cracked, and lower in level than other portions thereof immediately adjacent thereto; that it was permitted to remain unguarded and without any warning sign; that the dangerous and unsafe condition continued for a long space of time prior to the time of the injuries, at which time the defendant could, or, in the exercise of reasonable care, should have had notice thereof and could or should have repaired it or guarded the condition and warned the public and the plaintiff. The defendant in its answer, so far as material, denied the charges of negligence. There were originally certain other defendants besides the City of Elmhurst, — namely, the owners and occupants of the real estate abutting the sidewalk, — but their motions for directed verdicts at the close of the plaintiff’s case were allowed, and the only matter before us now concerns the defendant City of Elmhurst.

The defendant’s theory is that it was free from negligence as a matter of law; that the plaintiff was guilty of contributory negligence as a matter of law; that the plaintiff’s instruction Number II was erroneously given; that the Court erroneously refused to give the defendant’s instruction Number I; and that the damages are excessive. The plaintiff’s theory is that the questions of negligence and contributory negligence were questions for the jury, there was no error in the instructions, and the damages are not excessive.

A review of the evidence indicates that the plaintiff pedestrian fell, while walking northwardly alone, on the west sidewalk which runs north and south in front of French Cleaners and Dyers, Inc., on South York Street, in Elmhurst, about 4:00 p. m., October 20, 1950; the weather was clear and pleasant, and it was light. York Street is a principal street running through the city; the fall occurred near Adelaide and York Streets, in the business section, though most of the stores are a few blocks north of that point. The plaintiff had parked her car on the west side of York Street adjacent to the curb, got out of the car on the driver’s side and walked to the parking meter at the front of the car. There were some children waiting for her in the plaintiff’s car while she was to do an errand. After she had deposited some coins in the parking meter she turned around, started out on her errand, was walking back towards or in the general direction of her car, looked toward or into the car, spoke to the children about putting another coin in the meter if she stayed longer than expected, took about three steps on the sidewalk, and had covered about one and one-half slabs of concrete when at that point she stepped with her right foot in such a manner that the heel was on a slab, to the south, of a somewhat higher level than the toe or sole and the toe or sole went down on the adjoining slab, immediately to the north, that was somewhat depressed, which caused her ankle to turn and she fell, resulting in some serious injuries to her left ankle, including a fracture. She was wearing a shoe that had a cuban heel, with a strap and buckle on the side.

The difference in level, at its maximum, between the two adjoining slabs of the sidewall?: was estimated by the plaintiff and by one other witness, an employee of •an abutting store nearby, at “about two inches.” Apparently neither the plaintiff nor that other witness actually measured it. That other witness in fact said she did not think she’d ever got down and looked at it, and the plaintiff simply said “I think the difference in level between the slabs was about two inches.” Such estimates of “about two inches” constitute the only evidence in the record of what the difference is, except such reasonable inferences as may be made from the photographs in evidence. The lower level slab, the one lying to the north, in the direction the plaintiff was walking, slanted toward the street and the difference in level progressively increased somewhat in the direction toward the street and progressively decreased somewhat in the direction toward the abutting buildings. The condition had existed for at least a year, and probably several years, before the plaintiff fell. The two slabs in question are in a part of the sidewalk immediately adjacent to the curb line. The whole sidewalk appears to be laid in such a way that there are two longitudinal north-south dividing lines between slabs, each dividing line being respectively a few feet west of the curb-line and between the curb-line and the abutting buildings. The depressed slab is so depressed only between the curb-line and the first longitudinal north-south line west of the curb. The balance of that area up to the abutting buildings appears perfectly level. And the balance of the whole sidewalk in the general region appears perfectly level and the slabs appear to be flush with each other.

The plaintiff apparently did not actually know the condition of the sidewalk before the fall, although she had been on errands about twice a month for about 6 months previously to the same place where she was going this time; nor did the City of Elmhurst apparently have actual notice or knowledge of the condition prior thereto, though it presumably had constructive notice, — at least it makes no point on this appeal as to that.

The immediate area of the difference in level between the slabs was, under these circumstances, and at this time of day, plainly visible and not concealed if the plaintiff had been looking. There was no crevice, crack or break in either of the adjoining slabs at the point of the difference in levels where the fall occurred. There was simply a graduated difference in levels. There is no evidence of prior injuries to this plaintiff or other parties at and because of the particular condition of this sidewalk at this point as tending to show any common cause of several accidents to be a dangerous, unsafe condition or thing. There is some evidence that there had been no previous reports or complaints to the defendant concerning the condition of this particular sidewalk.

Some pictures of the sidewalk are in evidence. Those and the other testimony showed the one slab of the sidewalk, to the south, along the curb, adjacent to the other slab, to the north, which other slab was somewhat depressed and not on a level with the first. From such study of the pictures as it is possible for us to make it would appear that the difference in level at its maximum point, near the curb, is probably not as much as two inches, — very likely less, — and certainly no more, — and becomes gradually lesser away from the curb. The difference in levels was evidently caused by the sinldng, for some reason, of the depressed slab, after construction, perhaps because of weather or natural conditions. There is no evidence as to what the specific reason therefor was, but there is no evidence, in any event, that the slabs were originally so constructed with such a difference in levels.

The area where the accident happened apparently was not then congested, — there was apparently no traffic to speak of at that point at the time of the injury. The'evidence does not show that the heel of the plaintiff’s shoe caught on the edge of the slab to the south or that she tripped or stumbled by reason - of having the heel caught on the edge of that slab.

The alleged obstructions or defects in the streets or sidewalks of a city, to make the municipal corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person, exercising ordinary prudence, cannot avoid danger or injury in passing them, — in general, such defects as cannot be readily detected: City of Aurora v. Pulfer (1870) 56 Ill. 270. A city is not required to foresee and provide against every possible danger or accident that may occur; it is not an insurer against accidents; it is under no obligation to keep its streets and sidewalks absolutely safe for users thereof; it is required only to keep its streets and sidewalks in a reasonably safe condition for the accommodation of travelers and pedestrians who are themselves exercising due and reasonable care and caution for their own safety, and is liable only for its failure to exercise ordinary, reasonable care and prudence: City of Chicago v. Bixby (1876) 84 Ill. 82; Village of Mansfield v. Moore (1888) 124 Ill. 133; City of Gibson v. Murray (1905) 216 Ill. 589; Molway v. City of Chicago (1909) 239 Ill. 486; Brennan v. City of Streator (1912) 256 Ill. 468. The alleged defect, to render the municipality liable, must be such as could have been foreseen and prevented by it by ordinary care and prudence, — it is not expected to anticipate unusual or extraordinary happenings: Storen v. City of Chicago (1940) 373 Ill. 530. The question arises in each case whether the alleged obstruction or defect is of such a character that the party using the street or sidewalk at the time in question and under the circumstances then existing, in the ordinary way and using ordinary care for his own safety, is exposed to an unnecessary and unreasonable risk; that is usually a question of fact, but it may become a question of law where there is no particular dispute about the material facts and the alleged obstruction or defect is of such a character that reasonable minds cannot differ about it: Brennan v. City of Streator, supra. Tbe liability of a municipality to a party injured is commensurate only with the duty owing to sucb person at tbe time and under tbe circumstances existing wben tbe injury was sustained; in tbe absence of a duty to perform some act or service for tbe security of tbe plaintiff at tbe time and under tbe circumstances existing wben ber particular injury is sustained there is no fault of tbe municipality in nonperformance so far as she is concerned, even though sucb duty or some sucb duty may be owed to ber and others at different times or under different circumstances: City of Monmouth v. Sullivan (1880) 8 Ill. App. 50 (Second Dist.).

Illinois Law and Practice, Vol. 9 (Cities, Villages, Etc.), pp. 54 and 62, summarizes tbe principles applicable to a case of this kind:

“P. 54 — In general, it is tbe duty of a municipal corporation to use ordinary or reasonable care and prudence to keep its streets and sidewalks in a reasonably safe condition for public travel. It must exercise a degree of care which is commensurate with tbe danger to be apprehended, and whether it has maintained its streets and sidewalks in a reasonably safe condition for travel in tbe ordinary modes, or has been guilty of negligence, is to be determined in each case by tbe particular circumstances. Liability to a person injured is commensurate only with tbe duty owing to such person at tbe time and under tbe circumstances existing wben tbe injury was sustained.
“P. 62 — In general, obstructions or defects in streets or sidewalks, in order to subject tbe municipality to liability, must be of sucb a nature that they are in themselves dangerous, or sucb that a person exercising ordinary prudence cannot avoid danger or injury in passing them.”

In City of Chicago v. Bixby (1876) 84 Ill. 82, referred to above, a portion of the sidewalk was np to grade; an immediately adjoining portion was ten or twelve inches below grade; a step had been placed at the intersection of the walks, about 6 or 7 inches wide and 2 inches thick, extending the whole width of the sidewalk, and it was firmly fastened; there was ice and it was slippery; the plaintiff was descending from the upper to the lower walk and was on the step when she fell and sustained certain injuries; the plaintiff recovered a verdict and judgment below; the Supreme Court reversed and remanded. The Court said pp. 85-86—

“The city was bound only to the exercise of reasonable prudence and diligence in making this step. It is not required to foresee and provide against every possible danger or accident that may occur. It is not an insurer against accidents, but is only required to keep its streets and sidewalks in a reasonably safe condition for the accommodation of travelers and pedestrians, and we are of opinion that the city has not failed in its duty in this instance. We think the evidence shows that the sidewalk was reasonably safe, and, if so, the city should not be held liable. . . .
“. . . We are clearly of opinion that the evidence establishes no negligence on the part of the city, and that the evidence fails to sustain the verdict.”

In City of Chicago v. Norton (1904) 116 Ill. App. 570 (First Dist.), the plaintiff was walking west on a sidewalk of stone flagging and fell near the middle of the walk where a party line between adjoining properties, if extended, would have crossed the walk; east of that line the sidewalk had a slightly greater pitch than it had west of the line, because of which, though it was level at the curb, the walk next to the buildings and east of the line was 5 inches higher than the walk west of the line, and at the point the plaintiff fell in going from the higher to the lower level the difference in level was 2% to 3 inches. The plaintiff recovered a judgment below; the Appellate Court reversed with a finding of fact. The Court cited City of Chicago v. Bixby, 84 Ill. 82, Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401, and Hermes v. City of Chicago (No. 9818, not reported), and said, pp. 572-3:

“. . . If the existence of a difference in level of three inches between two adjoining pieces of flagging or pieces of plank in a sidewalk may be held to render such sidewalk not reasonably safe and be deemed evidence from which the fact of negligence in respect thereto may be inferred and found, then there is scarcely any sidewalk in any city that is reasonably safe. It is a matter of common knowledge that such differences in level may be found in almost every sidewalk in Chicago and a person walking along a sidewalk will step from a plank or stone three inches above the plank or stone upon which he steps without observing the difference in level. From such a difference in level, danger is not in common experience to be anticipated and a city can only be found guilty of negligence when the defect in a sidewalk was such that a reasonably prudent man should anticipate some danger to persons walking thereon.
“In our opinion the sidewalk in question was reasonably safe and the defendant, the city of Chicago, was not guilty of negligence in respect thereto.”

In Powers v. City of East St. Louis (1911) 161 Ill. App. 163 (Fourth Dist.), there was a granitoid sidewalk on the west side of a north-south street; near the middle of the block a segment thereof 25 feet in length was built practically level; the immediately adjoining parts of the walk north and south of that segment were built 3 inches higher at the inside or along the buildings and an inch or 2 higher at the outside or curbside ; at the junctions of the lower level segment with the adjoining higher level parts there were bevels of about 45 degrees or more; at the center of the walk at the north bevel the difference in level between the lower and higher parts was about 2-2% inches; otherwise the walks were smooth and even; the plaintiff on an afternoon of a clear, bright day while walking north, fell at the north bevel or difference in level between the lower and higher parts while going from the lower to the higher part, and sustained certain injuries. The plaintiff recovered a judgment below; the Appellate Court reversed without remanding. The Court said, pp. 165-6, and 166-7:

“. . . The real questions in this case are, was the walk as it was built and maintained unsafe and dangerous for pedestrians using reasonable care for their own safety, and was the plaintiff in the exercise of reasonable care for her own safety at and just before the time she was injured? There is no evidence to support the proposition that the walk was thus dangerous and unsafe except the bare fact of the difference in the height of the two portions of this walk and the incline spoken of, and the further fact that the plaintiff and one other person had been injured there. All the surfaces were smooth and the difference in'the heights could have been easily seen for fifty feet or more by any person with fairly good eyes who should be walking toward the same on a clear, bright day if he had but looked once at the walk ahead of him. There was nothing inherently dangerous to a traveler in this walk. There was no concealed defect or imperfection in its construction or make-up.
“. . . We cannot hold that a walk of two smooth granitoid surfaces built upon two different levels, varying in height of from two to three inches and connected with smooth bevel surfaces, is proven to be unsafe and dangerous to travelers thereon using reasonable care for their own safety simply because some one has been injured by falling on it. After such an accident, as said in the Bixby case cited below, it may be natural for persons then to conclude it was not safe. But it is the mere fact of the injury that suggests the idea of want of proper construction, and the disinclination of the human mind to attribute the fall to the negligence of the traveler. No reasonable mind, it seems to us, could foresee that an injury would happen to a traveler thereon while exercising reasonable care. To hold that this sidewalk as constructed was not reasonably safe within the meaning of the law would be virtually to hold that all walks should be smooth and level. This would require of cities perfection in the construction of their walks and would make them virtually insurers against all damages; but the law of this state does not require such exactions, and our courts have repeatedly refused to hold cities and villages liable in such cases as this one.”

In Walter v. City of Rockford (1947) 332 Ill. App. 243 (Second Dist.), there was a crack between two adjoining slabs or sections of a concrete sidewalk of about % of an inch, a part of one slab was about 1 inch higher than the adjoining slab, and the plaintiff while walking along on a clear, bright morning from the lower to the higher slab did not raise one foot sufficiently high to clear the one inch raise, stubbed the toe of her shoe, fell, and was injured; the verdict was for the plaintiff; upon motion of the defendant for judgment notwithstanding the verdict the Trial Court entered a judgment for the defendant; the Appellate Court affirmed. After referring to Orban v. City of Chicago, 313 Ill. App. 144, Kuhn v. City of Chicago, 319 Ill. App. 525, and citing City of Chicago v. Bixby, 84 Ill. 82, City of Chicago v. Norton, 116 Ill. App. 570, and Puck v. City of Chicago, 281 Ill. App. 6, the Court said, pp. 250-251:

“There is no necessity of further reviewing the cases. A reviewing court always hesitates to conclude that a jury acted unreasonably and that there is no evidence in the record supporting its verdict. The law is, however, that a city can be found guilty of negligence only when the defect in a sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it. We agree with the trial court. This defect was so slight that no reasonable mind, it seems to us, could foresee that an injury would result to a pedestrian upon this sidewalk while exercising reasonable care for her own safety.”

In Bybee v. City of Collinsville et al. (1947) 332 Ill. App. 353 (Fourth Disk), an abstract decision, a certified copy of the opinion having been made available to us, a part of the sidewalk had been broken in order for some repairs to be made to plumbing leading to an adjoining building, a hole had been dug, the hole was filled, and when filled the hole was level with the sidewalk at the edges and was an inch higher in the center; while she was walking along, the plaintiff’s right foot, she said, went down lower than the sidewalk and she fell, suffering some injuries; the evidence most favorable to the plaintiff was that there was a 1% inch to smaller depressed area in a part of the walk at the point of that hole. The plaintiff recovered a verdict; the defendants’ motions for directed verdicts, reserved, and for judgments notwithstanding the verdicts were allowed by the trial court and judgments entered for the defendants; the Appellate Court affirmed. The Court cited Powers v. City of East St. Louis, 161 Ill. 163, Bleiman v. City of Chicago, 314 Ill. App. 471, and said (p. 7 of the opinion)—

“The foregoing cases and cases cited in them enunciate the rule followed by the courts of this state. The plaintiff cites no decision which indicates that the facts of this case should render the defendants liable.
“In the case at bar the evidence concerning the difference in elevation between the refilled area and the adjacent sidewalk, considered with all reasonable inferences from it in favor of the plaintiff, established a depression which was so slight and inconsequential that the trial court was justified in holding it did not demonstrate actionable negligence.”

And in Bleiman v. City of Chicago (1942) 314 Ill. App. 471 (First Dist.), at a driveway two steel plates rested on the curb and the pavement, where they were fastened; the plates extended up over the curb, projecting one-half inch above the curb and driveway; the plaintiff in walking from the adjoining building and sidewalk or driveway to the street tripped his heel on the % inch projection of the plates, fell, and suffered injuries. The plaintiff recovered a verdict and judgment; the Appellate Court reversed, without remanding. The Court cited City of Aurora v. Pulfer, 56 Ill. 270, City of Chicago v. Norton, 116 Ill. App. 570, City of Chicago v. Bixby, 84 Ill. 82, Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401, Powers v. City of East St. Louis, 161 Ill. App. 163, and said, p. 478:

“The foregoing cases enunciate the doctrine consistently adhered to by the courts of this State, and the underlying reasons therefor. The evidence in the case at bar is clear and not conflicting. The driveway upon which plaintiff fell was smooth and in good condition, and the only possible defect thereon was the one-half inch projection of the metal plates over the curb. This defect was so slight that no reasonable mind, it seems to us, could foresee that an injury would result to a traveler thereon while exercising reasonable care, and accordingly we adhere to the established rule in this State, as shown by the foregoing decisions, that the question of defendant’s liability is one of law. Plaintiff cites no decision holding that so slight a defect will render the city liable for negligence, and since the facts are not disputed, the court should have directed the jury to return a verdict in favor of defendant as a matter of law.”

In the light of those cases and authorities, and under the facts and circumstances of this particular case, we believe the alleged obstruction or defect in the sidewalk here was not of such a nature that it was in itself inherently dangerous. It was not such that this plaintiff, exercising ordinary prudence, under the circumstances, could not have avoided any danger or injury in passing. We think, under these facts and circumstances, the defendant had kept its sidewalk at this point in a reasonably safe condition for the accommodation of a pedestrian exercising due and reasonable care and caution for her own safety. The defendant’s responsibility to this plaintiff was commensurate only with the duty it owed her at the time and under the circumstances existing when the injury was sustained.

So far as Illinois cases are concerned, the plaintiff has referred us to White v. City of Belleville (1936) 364 Ill. 577, reversing and remanding 284 Ill. App. 322 (Fourth Dist.), the same case being later affirmed in 290 Ill. App. 616 (abst.); Shepard v. City of Aurora (1955) 5 Ill.App.2d 12 (Second Dist.); Wayland v. City of Chicago (1939) 300 Ill. App. 608 (First Dist., abst.); Orban v. City of Chicago (1942) 313 Ill. App. 144 (First Dist., abst.); and Kuhn v. City of Chicago (1943) 319 Ill. App. 525 (First Dist., abst.).

In White v. City of Belleville the sidewalk had been broken and repaired; there remained a depression of from 2 to 3% inches depth in the repaired part; some crevices were left by the detachment of the repaired part from the main sidewalk; one of such crevices was sufficiently wide to permit the heel of a woman’s shoe to enter; the plaintiff in the evening, after 8 p. m., walked across or upon the broken section of the walk and the heel of her shoe dropped into a hole; she was thrown forward, fell, and suffered certain injuries. The plaintiff recovered a verdict and judgment; the Appellate Court reversed without remanding on the basis the defendant was, as a matter of law, not negligent; the Supreme Court reversed and remanded to the Appellate Court holding that the defendant’s alleged negligence was a question of fact for the jury; and later the Appellate Court affirmed the judgment for the plaintiff. The facts in that case are substantially different from those in the case at bar and it is not determinative here.

The same comment may be made as to Shepard v. City of Aurora. There there was a defective projection upwards about 1% inches from the sidewalk of the corner of the flange of a trap door in the sidewalk, partially concealed from the plaintiff’s view by a corner of a display window, at a point where the public might reasonably assume was a normal, level segment of the walk, other people had recently stumbled on the trap door, and the plaintiff while walking on the walk caught her foot thereon, fell, and was injured; we held, in part, that under those circumstances the particular condition of that walk was such that a reasonably prudent man should anticipate some danger to persons walking upon it while exercising reasonable care for their own safety and that the jury could find negligence. Those facts are not the facts of the ease at bar.

In Wayland v. City of Chicago, a certified copy of the opinion having been made available to us, though the facts are somewhat obscure, and the Court said there was a sharp conflict in the evidence as to the condition of the sidewalk, evidently the plaintiff stepped in a hole in a sidewalk, fell, and was injured, — while walking in the evening apparently after dark, — there apparently being some kind of a depression in the walk whereby one slab was lower than an adjoining slab, and there being also evidence the walk had been broken in places and filled with -dirt ; a verdict and judgment for the defendant was reversed and remanded. .Among many other reversible errors found, the Court held that an instruction which, in part, told the jury that if they found “the plaintiff’s injuries, — resulted solely and exclusively from the existence of a difference in level between two slabs of the sidewalk — then in such case I charge you, as a matter of law, that the City of Chicago would not be liable for any injuries sustained as the result of such mere difference in level” was erroneous, the Court pointing out that it is conceivable a very dangerous situation may be created by a difference in the level between slabs in a sidewalk. Here the facts and circumstances are substantially different, and no such instruction is involved.

Orban v. City of Chicago, a copy of the opinion again being made available to us, concerned a sidewalk where there was some difference of level in adjoining slabs, starting at the abutting building line and growing larger gradually toward the curb, the evidence as to the depth of the depression varying from less than an inch to four inches, but the Court saying the defect was substantial, not a mere slight difference in level; the plaintiff while walking in the evening after dark stumbled over the depression, fell, and was injured, — it not being clear from the evidence as indicated in the opinion whether she was at the moment going from the lower to the higher slab, or vice versa, although we obtain the impression she was going from the lower to the higher slab; a verdict and judgment for the plaintiff was affirmed, the Court holding the jury might, under the facts and circumstances, reasonably find the sidewalk was defective and the defendant was negligent. Again, the facts are materially different from the case at bar and it is not persuasive here.

In Kuhn v. City of Chicago, a copy of the opinion again being made available to us, in the east sidewalk on a north-south street two adjoining slabs, in their entire length across the walk, were not on a level with each other or the rest of the walk; the south slab was raised about 2 or 3 inches higher than the slab to the north; the plaintiff was walking in a southerly-direction in the evening after dark; she stumbled her toes, — apparently tripped on the higher slab while going from the lower to the higher slab, fell, and was injured; a verdict and judgment for the plaintiff was affirmed, the Court saying the question of the defendant’s negligence was for the jury, and following Orban v. City of Chicago. Again, those facts are not the facts of the case at bar, and the case is not persuasive here.

We conclude that, at the time and under the facts and circumstances in evidence here, the defendant, as .a matter of law, was not negligent; that the defendant’s motion for directed verdict, at the close of all of the evidence, or its motion for judgment notwithstanding the verdict should have been allowed; and that the judgment should be and is hereby reversed, without remanding.

Reversed.

DOVE, P. J. and EOVALDI, J., concur.


text:
    George D. Hall, Grace E. Hall, L. S. Young, Marjorie Kunkle, Jo Ann Hanson and Florence Thompson, d/b/a Lincoln Finance Company, a Copartnership, Appellees, v. Hamilton Fire Insurance Company, Appellant.
    Gen. No. 10,859.
    Second District.
    January 5, 1956.
    Released for publication January 23, 1956.

      Boyles & Fisher, and Henry H. Caldwell, for appellant; Large, Reno & Zahm, for appellees; Ralph S. Zahm, of counsel.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: JUDGE KILEY

text:
    Hazel D. Sutherland, Appellee, v. Michael Guccione, and Oliver Sandquist, d/b/a Architectural Builders Co., Defendants. On Appeal of Oliver Sandquist, d/b/a Architectural Builders Co., Appellant. On Appeal of Hazel D. Sutherland, Plaintiff-Appellant.
    Gen. No. 46,654.
    First District, Third Division.
    December 14, 1955.
    Released for publication January 26, 1956.

      Crowe, Tates, Abraliamson & Fisk, of Chicago, for appellant Oliver Sandquist; Burt A. Crow, of Chicago, of counsel.
    Hinshaw, Culbertson, Moelmann & Hob an, of Chicago, for Hazel D. Sutherland as appellee and as appellant; Oswell G. Treadway, of Chicago, of counsel.
    John J. Maciejewski, of Chicago, for Michael Guccione as appellee; Charles D. Snewind, of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is a personal injury action. At the trial the jury found Sandquist guilty and awarded plaintiff $2,500 damages. Guccione was found not guilty. Sandquist moved for a new trial and plaintiff moved for a new trial as to Guccione. The motions were denied and judgments were entered on the verdicts. Sandquist has appealed from the judgment against him and plaintiff has cross-appealed from the judgment in favor of Guccione.

Plaintiff was injured near the intersection of Oak Street, an east-west street, and State Street, a north-south street, in Chicago. Oak Street as it goes west jogs about seventy-five feet to the south at State Street so that the northeast corner of State and Oak Streets is about seventy-five feet north of the northwest corner. There are traffic lights at the four corners of the intersection. The jog in Oak Street necessitates a fifth traffic light which is located on the west sidewalk of State Street about seventy-five feet north of the light at the northwest corner. This fifth light is at the north crosswalk.

Shortly before the accident plaintiff had walked south on the west side of State Street on her way to lunch at Wabash Avenue and Oak Street. Automobiles were parked solidly on the west side of State Street, even in the crosswalk. Plaintiff, in order to cross State Street to the east side, was required to go through a space between parked cars about twenty feet north of the north crosswalk. In returning from lunch, plaintiff stopped at the northeast corner of the intersection, and as the lights changed in her favor she walked west across State Street in the north crosswalk.

Guccione’s truck was southbound and had stopped for the traffic light with its front a few feet into the crosswalk and its west side near the parked cars. Plaintiff crossed in front of the truck and then, according to her testimony, because Sandquist’s parked car blocked the crosswalk, turned north to walk to the opening she had used in her earlier crossing. As she walked between the truck and Sandquist’s car, the lights changed and the Guccione truck moved forward, trapping plaintiff between it and Sandquist’s car, and as a result she was struck by the body of the truck and was injured.

The complaint alleged that plaintiff was in the exercise of due care and that Sandquist’s negligence in illegally parking and Guccione’s negligence, among other acts, in starting his truck before plaintiff was in a safe place constituted the proximate cause of her injury. The jury answered special interrogatories in plaintiff’s favor on the question of her due care and in Guccione’s favor on the question of his negligence.

The issues here, with respect to Sandquist, are whether there is any evidence that he was negligent; whether the position of his car was the proximate cause of the injury; whether there is any evidence of plaintiff’s due care; and whether the verdict as to him was against the manifest weight of evidence.

Sandquist does not argue that his car was not parked illegally (in violation of the Municipal Code of Chicago, Sec. 27-122) blocking the crosswalk at the time of the accident. He argues that there is a failure to prove that he parked the car in that position. There is no direct testimony tending to prove that fact.

Sandquist testified twice during the trial, once during plaintiff’s case (Ill. Rev. Stat. 1953, Chap. 110, Sec. 184; C. P. A. Sec. 60 [Jones Ill. Stats. Ann. 104.060]) and later in his own behalf. Under Section 60 he stated that he parked in the vicinity regularly and that it was very possible that his car was parked somewhere on State Street near Oak Street, although he did not remember whether it was blocking the crosswalk at the time. As defendant he testified positively that he did not park his car in the crosswalk, saying that it could have been either north or south of the crosswalk, but not in it. Sandquist also stated that he had operated a business in the immediate vicinity of the accident for six or seven years and that he had been parking there every day.

Sandquist argues that the mere fact that his car was found in the crosswalk was no proof of his negligence. He impliedly admits that there arose from the car’s presence in the crosswalk a presumption that he had parked it there, but claims this presumption was “immediately disposed of” by his uncontradicted testimony that he did not so park his car.

A presumption of ownership arises from the presence of one’s name on a vehicle (Robeson v. Greyhound Lines, Inc., 257 Ill. App. 278); the presumption of ownership of a locomotive arises from one’s name appearing on the locomotive even though operated on a track other than defendant’s (East St. Louis Connecting Ry. Co. v. Altgen, 210 Ill. 213); and the presumption that an agent was in his master’s service arises from the agent’s operation of the master’s truck (Kavale v. Morton Salt Co., 329 Ill. 445). The extension of these rules underlies the implied admission of Sandquist. The 'presumption that he parked his car in the crosswalk is prima facie proof of negligence sufficient to take the case to the jury.

Sandquist’s testimony that he did not park the car in the crosswalk could not be ignored by the jury unless it was impeached, contradicted or from its nature was not credible. Kuehne v. Malach, 286 Ill. 120, 126; Stephens v. Hoffman, 275 Ill. 497, 502; Paulsen v. Cochfield, 278 Ill. App. 596, 607. We think the jury was free to “disregard” his testimony that he did not park his car in the crosswalk because, considered with the whole of his testimony, its vagueness and indefiniteness, the jury could reasonably conclude that his account discredited his story. People v. Davis, 269 Ill. 256, 270-271. We cannot say as a matter of law that the jury was bound to accept Sandquist’s statement on the grounds that it was positive and uncontradicted. Furthermore, the jury was free to consider the fact that Sandquist had an interest in the suit as a party; they also had the advantage of observing his manner of testifying.

We see no merit in the contention that the jury’s special verdict on due care of plaintiff was against the manifest weight of evidence. The evidence does not show that plaintiff, in view of the unlawfully blocked crosswalk, should clearly have crossed the street obliquely toward the southwest corner of State and Oak Streets; or should have walked south on State Street along the parked cars, with her back to southbound traffic, instead of north; or should have walked away from her destination, south on the east side of State Street to the south side of Oak Street and then to the west sidewalk of State Street. The jury could reasonably have found that the course she followed was prudently selected from the alternatives possible under the circumstances.

We turn now to the question of proximate cause. Taking the evidence in its most favorable light to plaintiff we think reasonable men could conclude that Sandquist should have foreseen that parking his car unlawfully in the crosswalk would block the path of pedestrians crossing State Street from the east desirous of gaining the west sidewalk; that the pedestrians would probably be required to walk north or south along the parked cars to find access to the sidewalk; that this action might require their “straddling through” between the parked cars and other vehicles stopped for the traffic signal; and that a pedestrian might be trapped in this space and be struck and injured. This is sufficient to take this question to the jury. Ney v. Yellow Cab Co., 2 Ill.2d 74, 79. The rule stated in Walker v. Illinois Commercial Telephone Co., 315 Ill. App. 553, is inapplicable in view of our conclusion hereinafter respecting defendant Guccione.

We think we have discussed the evidence sufficiently to lay the basis for deciding that the verdict against Sandquist is not contrary to the manifest weight of evidence. Kahn v. James Burton Co., 5 Ill.2d 614, 623. The views expressed in the Kahn case with respect to trial by jury operate likewise against the contention of plaintiff that the special and general verdicts in favor of Guccione are against the manifest weight of evidence.

The evidence is that plaintiff went around the front of the standing truck but was not seen by Guccione, and the crosswalk being blocked she turned north and was between the cab of the truck and the parked cars, a two-foot space, when the light changed. Guccione, at the change of lights and before starting, looked to the right and left and into the right rear-vision mirror, and seeing no one, he started up. It may be that he could not see plaintiff at the time. The height of the right door window is not in evidence and plaintiff was but 5 feet 6% inches tall. The jury, though it may have thought he should have seen plaintiff as she crossed before his truck when he was looking ahead, may have also decided he was not required to see what was ahead of him until he was ready to start, and at that time she was not ahead of him and not otherwise in his sight through no fault of his. We cannot say that the manifest weight of evidence prevented this finding.

For the reasons given the judgments are affirmed.

Judgments affirmed.

LEWE, P. J. and FEINBERG, J., concur.