*1
(Pеople
posted by
the accused.
Lowder
21 Ill.
Annot.,
(1963).)”
see
For the reasons set forth the order of the circuit court of Tazewell County is affirmed.
Judgment affirmed.
STENGEL, J., BARRY, P. J., concur. GREENE, al., Plaintiff-Appellee, v. THE OF et CITY CHICAGO JAMES
Defendants-Appellants. (2nd Division) First District No. 60853 Opinion Rehearing February filed November denied 1977. *2 DOWNING, J., dissenting. (Daniel Counsel, Chicago R. Quinlan, Corporation
William R. of Pascale and Counsel, counsel), appellants. Fitzpatrick, Corporation of Peter Assistant Stride, Ltd., (William Healy, Jr., and Martin of Chicago Herbert F. of Harte J. J. counsel), appellee. Mr. of the court: delivered JUSTICE JIGANTI Greene *750,000 A of judgment of was entered favor James against injury action personal court without this charged with Chicagо Timothy Ferm was Timothy Term. J. J. with Chicago his negligence automobile lighting. Only artificial negligence in maintenance prosecutes appeal. p.m., plaintiff 11:30 approximately
On December James proceeding Greene was south on Wentworth Avenue. north of the Just Street, intersection 104th plaintiff’s stalled. The weather was overcast, rain turning attempts with to snow. After several to restart the failed, plaintiff automobile emergency got switched on the blinker and car. proceeded out He went to the rear and remove flare light which he intended area warn other motorists. The evidence as whether the street were on or off at the is in time considerable conflict and will be detailed below. The was struck as he was standing behind his vehicle automobile driven co-defendant Perm. Timothy injuries plaintiff received necessitated the J. amputation legs. of both appeal The issues on (1) finding are: whether the that the artificialstreet lighted were not at the time of the against occurrence was evidence; (2) weight municipality manifest whether a is liable for negligence voluntarily in the maintenance of its undertaken street apart lighting, generic obligation from its to warn dangerous travelers of travel; ordinary (3) obstructions to whether the defective condition the occurrence; (4) artificial lighting proximate cause of the whether by plaintiff requirements the notice served complies with the section 8—102 the Local Employees Governmental Governmental Tort (Ill. Act Immunity par. 102); (5) Rev. Stat. ch. 85 whether 8— deny was error to motion for leave to file a late jury demand. *3 City’s The first contention is that the trial court’s determination that the street lights functioning along were not place Wentworth Avenue at the against the collision is the weight manifest evidence. The alleges lights 103rd the were out from to 107th.The evidence lights shows that the on Wentworth from 103rd to 107th consist two circuits. Each starts from a 105th junction box at Street. One circuit runs point north to a south of the line feet south of 103rd Street. The other circuit runs south box junction point just from the same to north of the of 107th lights north line Street. All the are located on the west side of the separate street. Each circuit is separate from the other. Each has a circuit electricity breaker. Both circuits from receive their the Commonwealth Edison pole at 105th just Street west Wentworth Avenue. The circuits lights of street streets intersecting running Wentworth east and entirely are independent west from the circuit that serves Wentworth Avenue.
On direct testimony, examination in its City produced defense witnesses testified the procedure several who as to followed Bureau of Streets and regard light Sanitation with to street maintenancе. Testimony established that the prepared complaints receive fight about street on a basis. complaints may malfunction 24-hour The be units or from mobile telephone, from citizens via received units, police addition to the radios. In two-way equipped reports they observe. Police which regularly report light failures officers then 11th Streets and are headquarters at and State police are at collected telephone “hot-line.” special via passed on the Bureau source, from a city either a citizen or receiving complaint from Upon pertinent contains all of information. prepared card is which record these, teletypes directly information then addition to Electricity so a work crew dispatcher at Bureau load dispatcher Once the light and correct the malfunction. investigate sent to information, report. report Each has prepares he defect receives In turn complaints. provisions up serially numbered sent the district office which covers area information is then work crews are It these district offices that malfunction. dispatched. light of a street Electricity, report it has received
The Bureau of once failure, make a record reports up then of its own prepares several further of all maintenаnce measures taken. These records are log which maintains its own supplemented by each work crew system. work done on the street complaint it had no record of either a presented evidence that
about, to, repairs lights or of made street on Wentworth Avenue 12, 1970. between 103rd and 107th Streets on or about December presented police occasion also number of officers who had reports make out accident as to accidents which had occurred They evening on the testified on that area December lights Only officers evening, were on. one of these area were testify specifically was able thаt he remembered night they officers stated that functioning on the of the accident. The other on accident independent had no recollection of the matter relied their reports. night plaintiff produced persons five who testified occurrence, along Avenue the 103rd the street Wentworth Johnson, off. Artie who
104th blocks of South Wentworth Avenue were house, Wentworth, that, as he left his he resided at 10340 South stated As 104th and Wentworth. gathering noticed a intersection of crowd scene, accident. there had been a traffic approached he realized *4 night Mr. were off on the of the lights further stated the street Johnson date they prior and that for weeks оf accident had been off three Mr. he had called the the occurrence. testified that Johnson complain Dorothy Driggers, the accident. who lights about before Wentworth, 12,1970, she lived at 10406 South that on December testified was startled When she out to by a loud noise outside of her house. went
investigate, plaintiff lying she saw the on the street. She testified that the lights were not at the time of the occurrence and had been off for some that, period before also service had been intermittent for weeks. several She also stated she called the report light Whittaker, failure. Clarence Wentworth, who resided at 10410 South testified that he that, was aroused crаshing loud sound and when he noise, went to see the source he was unable to do so because the lights were out. He also testified that lights the street had been malfunctioning for quite some time before the accident.
The Reverend Theodore Harrison testified that had he been co-defendant, directly Ferm, behind the Timothy blocks. several J. proceeding He stated that he was south on Wentworth when he came to Street, 103rd they stopped where both light. passed a traffic As he intersection visibility suddenly the overall dropped from about 150 feet to 25 feet because the lights overhead had failed. Reverend Harrison said it was so dark Mr. Perm’s suddenly automobile swervеd and get stopped, he had to out of his car to see with what Mr. Ferm had collided. Ferm, co-defendant,
Mr. testified when he crossed the 103rd, intersection at lights burning overhead were not south of that point. visibility He stated the was reduced from 150 feet to about 50 It or 60 feet. visibility was this reduction in it made difficult for him to plaintiff’s see the stalled Mr. car. Ferm testified that did not he see the plaintiff’s and, then, until was he about feet from even because of darkness, tell that the plaintiff’s stationary. could not car was
When tries a case findings without a its fact should not findings be disturbed unless those are against the manifest (C. weight A. Aderdung Plumbing Heating & Co. v. the evidence. Stanton (1969), 160; 115 Ill. App. 2d Upton Parkway v. 253 N.E.2d Motors, Inc. (1968), App. 513.) N.E.2d Whеre the record and support findings findings evidence the court those (Turner Board Education should not be disturbed. 54 Ill. 2d Brown v. Zimmerman 264; 294 N.E.2d 18 Ill. 2d Bridges Neighbors 233.) 336 N.E.2d position credibility The trial court is in a better to assess the weigh witnesses and to conflicts in evidence. our the trial finding court’s off supported of fact were the evidence and should disturbed. functioning fact that the were finding night on the plaintiff’s leads to the defendant’s injury second contention which
essentially scope questions duty municipality under the only duty provide lighting circumstances. The contends dangers where there are known obstructions in the street. The
507 Milwaukee, Co. Ry. Paul St. & Chicago, v. cites Pacific Ricklefs In the position. this 320, 117N.E.2d of support App. Ill. Ricklefs said, at “Sofar as we have page and leading the cases reviewed court to the determine, require further than go the cases no able to been plaintiff or obstructions.” against dangers known light warn first instance required the municipality legally is not concedes that in the or defect lights except dangerous obstruction install when there in fact However, municipality does argues the where a plaintiff road. streets, negligent it does in a it be liable if so light undertake to Baran conclusion, plaintiff cites the cases of support In of the manner. 227; 177, 251 (1969),43 N.E.2d City Chicago Heights v. Ill. Johnston of 401; City Chicago Ill. East Moline of of (1907), 133 Ill. 169; Chicago v. Kubler v. Powers these cases to An must be made of еxamination Ricklefs. is. duty the determine what Kubler, team attached to plaintiff
In the was of horses wagon slipped Erie the into a hole wagon along Street when wheel the dimly see the lit street. wagon could not because of driver roadway in a bad city negligent allowing the to remain court found light enable the defects to providing condition and not sufficient for cites case what using plaintiff seen those street. page at 526: stated city is accentuated from the fact “Here dereliction of it so furnishing light, it did duty while understood the inadequately.” Powers, open at Chicago and drowned an plaintiff
In fell into the River part Clark swing-type bridge bridge Street. The court said was аny light as city’s duty bridge the street and that it was much Johnston, portion light a traffic at one comer of other of the street. In was inoperative days. injured intersection was for five Plaintiff thought what he was an unmarked driver another entered it on a plaintiff’s proceeding and struck the car while was intersection 468: green light. page Plaintiff cites case what the court said for “* °° however, reason, impel us to the conclusion Justice system was constructed and signal question after it it operation, in such condition that would keeping was danger citizens into inevitably be hazardous invite which was incurred.” duty, liability for the failure of corporate underpass in an by a motor vehiclе Ricklefs, injured In walkways in the pedestrian lit. no that was not well There were system underpass in the underpass. lighting The court noted that the provide merely but roadway to illuminate the rather intended using underpass. Because roadway outline automobiles had not city light fixtures, intended it street when installed the many court reasoned that light the failure of bulbs could not possibly have proximate injuries been the cause of which the being case, claimed. This city had never any duty assumed provide illumination of the roadwáy pedestrians either or motorists. cases, The cotut approval nevertheless cited with including several Moline, holding East a city once undertakes to Johnstоn streets, light its it is it bound to see that does so in reasonably safe and skillful manner. Baran, Chicago Heights was found liable because
elected lighting system to install a in that it was defective created a *6 prevented plaintiff seeing condition which from that the street on which he a was ended in “T” intersection. Because of the defect went through the intersection and struck a tree. The court said
at page 180:
“The long recognized court has a city that where undertakes to provide it is lights, injuries liable which result from deficient or inadequate holding city responsible ones. In a [Citations.] injuries reviewing city’s thus caused the court is not discretion in selecting plan. a controlling
It is not passing upon city’s public or estimate of needs. is it deciding improvement Nor what the “best” kind It be. is simply saying city that when a creates hazardous condition injured consequence respond and someone is as a it must * ” damages in Finally, the court concluded:
“The protects rule which city] in the exercise [the governmental function should not be construed to from relieve [it] liability devised, put when the if plan operation, in the city’s leaves in dangerous streets for public condition use.” Powers, In Kubler and did city voluntarily provide undertake to fights. duty provide street fights to each instance arose because the roadways dangers had In known or obstructions them. the former case rоadway hole, magnitude had a required warning; which and case, in the bridge, road, part latter which the court was a found opened required warning created a hazard that either fights or In adequate barricades. both of those cases to give defendants failed warning dangers as to known or obstructions the street and Johnston, consequently discharge duty. In Baran failed and the cities had voluntarily fight undertaken to the streets in the one case to install other, traffic signals control in the and then either installed or maintained Johnston, negligently. the facilities the city voluntarily installed traffic thereby maintenance; control assumed the signals duty of reasonable
509 inevitably failеd, that was its failure created a situation when one city of which the danger, into a situation hazardous invited citizens Baran, city Again, known. reasonably or should have either knew court found lights, and the voluntarily undertook install had city which the condition for installation itself created hazardous respond damages. (1965) is (Second) of Torts the Restatement §323
We believe U.S. Towing Co. United States Indian applicable (see law Illinois. 122), 100 L. Ed. S. Ct. and reflects case consideration, render undertakes, or for gratuitously “One who recognize necessary for the he as services for another which should subject liability to person things, protection of other’s physical resulting from his failure tо exercise the other for harm (a) undertaking, if his failure to perform reasonable care ” * *.” care risk of harm exercise such increases the the court could ample We there is evidence believe increased find that the scene of the occurrence failure that, as south on proceeded the risk of harm. The he testified However, Wentworth, as visibility 200 to feet. he crossed Street, visibility where the intersection of 103rd he entered into area to 25 feet were out. Reverend dropped to 50 because overhead Street, at 103rd Harrison drove Wentworth testified on 25 feet. He further visibility from 150 to feet to about decreased areа, to stop testified he was forced as he entered darkened suddenly right came because the in front of him swerved to something say lying ground halt. The on the witness went *7 car, directly in front his to darkness could see what it of but due the he not co-defendant, Ferm, that, Timothy upon entering was. the The testified J. area, darkened could see about 50 feet. He further testified only he him, it thought first was of was when he realized the car in front moving. plaintiff’s Due it was late to avoid to darkness too several According it to finally moving. when he realized that was not area, period had for who been off some lights witnesses resided to find that this of time. evidence for There was sufficient major dark an оtherwise well-lit suddenly stretch of road on condition, which was thoroughfare, failure correct to it, s risk reasonably to to increased ought have been known City negligent. of harm and that the was therefore Avenue were not The if the on Wentworth lights asserts even cause lighted, proximate fact was not a of lights the absence of artificial plaintiff’s injuries. The cause contained proximate definition Kinsch v. Instructions, (2d 1971), ed. and in Jury Illinois Pattern Civil Co., DiVito 149, 154, 203 N.E.2d and is Construction 54 Ill. 2d 510 “ which,
as probable follows: cause that cause natural or is] ‘[Proximate sequence, produced complained of. It need injury not cause, if nor the last or nearest cause. It is it sufficient concurs with sоme time, it, other acting cause the same which in combination with causes (IPI injury. 15.01)’.” No. City says lights The that plaintiff’s flashing red were on and noticeable on a this lights dark street without should have been for require visible one asks law block. whether the should anticipate: (a) that the would have a failure of automobile, point Avenue; it (b) so that would stall at this on Wentworth it, that he would of his get facing away out vehicle and stand to the rear of traffic; the oncoming (c) Perm would be on the street in an same such intoxicated condition that he would be unable flashing lights plaintiff’s see the City argues red automobile? The (1942), circumstances v. from cases Merlo Public Service Co. 381 665; Ill. 317 (1940), 530, 533, N.E.2d v. Ill. City Chicago Storen 373 53; 372, 308 27 (1974), 617; N.E.2d Cunis v. Brennan N.E.2d v. (1974), 7, 12, 310 Winnett Ill. 2d essentially Winnett N.E.2d for the propositions that act is not the if proximate injury cause anticipated defendant could not have its occurrence or if the occurrence was objectively expect. propositions reasonable to Those of law are adequately cases, City, stated but an examination of those facts, were decided on their does individual not aid our determination remains, foreseeable, the facts this case. The question action is, objectively expect? reasonable to our it was. There testimony in the case that lights purpose insuring are erected safety pedestrians. of motorists and We it objectively believe was reasonable for expect dangerous situation would be created if, it lights when knew or should have that its street known were out on portions lit, of an permitted arterial street that was otherwise well then those any warning remain out and failed motorists. It is give necessary precise have been able to foresee the nature of (Perm’s occurrence or of the conduct). concurrent cause (Neering v. Illinois Central R.R. Co. 383Ill. N.E.2d Lewis Stran Corp. Moreover, Steel 128.) question N.E.2d cause, proximate where, here, men reasonable arrive at conclusions, question (Ney different is a trier of facts. fact 74.) Yellow Cab Cо. 2 Ill. 2d evidence more than sufficientfor the trial court find that the failure proximate plaintiff’s on Wentworth Avenue was a cause of injuries. next contends that the suit must be dismissed for failure *8 give required notices section 8—102 Local under of the Governmental 1969, (Ill. Stat. ch. Immunity Act Rev. Employees Tort and Governmental as 85, parts reads follows: par. 102) pertinent 8— or injury that the cause from the date “Within six months 0 0 0 accrued, any to commence person who is about any action against a local damages injury of such account civil action *° * " # a written must serve personally public entity, himself, attorney, giving the statement, by agent his or signed accrued, of action has the causе person of the whom name date about the injured, the person of the name and residence place location where accident accident, or hour occurred, accident, the name and address general nature of the any, attending the name and address physician, of the if added.) (Emphasis any.” if treating hospital hospitals, of the accident in the notice were that the location alleged defects Wentworth,” of the actual intersection of “105th and instead was listed as and, of the Wentworth, additionally, attending that the name 104th defect, alleged in the regard With to the first case given. physician v. Chester of Meisenheimer upon a dismissal based appellate court reversed that notice. Plaintiff stated the accident occurred
allegedly defective there out, Chester, pointed as the defendant on “Route 3 Illinois.” Route argued this ran of the and it was notice was not length City, the entire plaintiff s investigate claim. specific enough to enable defendant complied with the substantially court held that had appellate actual, statutory, as had well as notice of statute because the received the exact location of the accident. bar, actual notice that accident the case had police reports at 104th which recorded thе facts of
occurred
Street
reports
diligence
With
the exercise of some
mishap.
these
Plaintiffs
investigate
the accident.
adequately
defendant was able
place of
the fact
had actual notice of the
written notice and
with the statute on the
compliance
substantial
occurrence demonstrate
Chester;
v.
Reynolds
Meisenheimer
plaintiff.
part
King
(1970), 47
Tuscola
Ill. 2d
270 N.E.2d
Johnson
Ill. 265 N.E.2d
defect,
alleged
find
As for
we
defendant’s second
Plaintiff contends
again
compliance
the statute.
was,
simply that he did
physician
list an
attending
reason
failed to
he did
identity
attending
but
in fact
physician,
not know the
supports
A
the record
contention.
not have one
such.
review of
staff. He
orthopedic
County Hospital
Plaintiff was treated at Cook
hospitalization.
physicians during
battery
was attended
*9
Moreover, we
following: (1)
testimony
note the
His
that he did not in fact
any attending
have
physician
such was
by
not contradicted
City;
(2)
requires
The notice statute
only
he include the name and address
attending physician,
(3)
of the
“if any”; and
when he supplied the name of
the treating hospital,
enough
this was
information to
enable the
to
(Bickel
necessary
obtain the
medical data to make its investigation.
Chicago
684,
We,
The last contention
of the
is that the
court abused
discretion in
denying
motion
jury
for leave to file a latе
demand. Two and
filed,
years
one-half
after
changed
suit was
trial counsel and
requested
jury.
request
procedure
a
This
The
denied.
for filing jury
Act,
demand
contained in
Civil
(Ill.
Practice
Section 64.
Rev. Stat.
1973,
110, par. 64.)
ch.
provides
That section
that a defendant
desirous
by
a trial
jury must file a
not
than
filing
demand
later
of his answer.
Act,
(Ill.
The Civil
110,
Practice
section
ch.
par. 59),
Rev. Stat.
shown,
provides
on good cause
in the
discretion of
court and on
terms,
just
may
time
granted
additional
for the
doing
any act or the
taking
or
any step
proceeding prior
to judgment. Supreme Court Rule
(Ill.
110A,
183)
Rev. Stat.
ch.
par.
provides that for good cause
act,
shown the court
doing
extend the time for
any
required
which is
by the rules to
period,
be done within
limited
either before or
after
expiration of the time. The
support
affidavit filed
of its
present
motion in
trial court
first
stated that
trial counsel was
retained
file,
January
apparent
of 1974 and
on his review of the
it was
him fact
questions
there were serious
which should be determined
court,
In
by jury.
argument
trial
oral
it
before the trial
was asserted
that there would be neither
rights
inconvenience nor
to the
prejudice
because,
jury,
with without a
was then ready
defendant
3)i
fact,
go
In
go
trial.
the case did not
trial until
months after
defendant’s motion was
discovery
denied because
some extensive
plaintiff.
Hudson v. Levernz
10 Ill. 2d
3,1954.
answers,
on
filed suit March
The various defendants filed
final
being
September
on
pleading
requests
filed
1954. There were no
for a
jury
parties
present,
trial.
both
were
was set
a nonjury
When
the matter
December,
year. Early
calendar
in December of that
one of the
facts,
jury
misapprehension
filed a
alleging
defendants
demand
of the
mistake,
replied
parties
and inadvertence. Plaintiff
that all the
were aware
set
and that
nonjury
prejudiced
the matter was
call
he would be
filing
jury
in the
because it would
to a
demand
set
matter over
subsequent
jury calendar.
trial court denied
defendant
leave to
originally
demand and
trial on
scheduled.
jury
proceeded
file
the datе
parties
all
court noted that
were
Supreme
affirming
the trial
Court
and was
until
nonjury
matter was
docket
present
set on
days
the trial that the
a few
before
some
months later and
two
noted that
demand. The court
request
jury
made to file the
say
than
“good cause” other
any
did not advance
reason or
defendants
facts, mistake and
“misapprehension
their
failure resulted
that the defendants
the court stated
Based on these facts
inadvertence.”
Act and did not
64 of the Civil Practice
comply
failed to
with section
59 of
Civil
excused under section
why
show
their failure should be
Court Rules.
Supreme
Rule 183
Practice Act and
of the
Stephens Kasten
leading
cites the
case of
the trial court should have allowed
proposition
We fail
to see
cause shown”
the case
bar.
“the
cause,
does
good
Inadvertence or mistake
not constitute
nor
mere
does
absence
to the
trial
prejudice
and of
to the
court
inconvenience
equate
“good
Obviously
cause
the rule is not
be
shown.”
retaining
counsel
by
circumvented
new trial counsel. The affidavit of
does
failure
why
predecessor
show
of his
should be excused. The trial
court’s
the motion
denial of
was a reasonable exercise of sound discretion
Sabben
which is
trial
vested
court.
Johnson
238,
Judgment affirmed.
HAYES, J., concurs. DOWNING,
Mr. dissenting: JUSTICE to grant I to the failure of the trial court would reverse cause due my trial. In the cause should be remanded for a jury jury. new trial before a
I. by determining At I must be recognize the outset that this issue resolved trial court abused its discretion whether denied City’s a jury jury motion for trial after the failed to file a demand in accordance 64 of the Civil Practice Act. on the facts section Based of this I think circumstances case the denial of the motion was clear abuse of discretion. complaint August was filed 1971. filed its answer
September jury by 1971. No demand was then filed City was required by section The case worked its way through customary delay awaiting 11,1974, its turn for trial. on February City, by Then its recently counsel, then retained its special filed motion for leave to file a jury demand.1 This oversight verified motion asserted the of the assistant demand; corporation failing special to file a jury counsel counsel January 14, was employed (obviously approaching as the case was trial); an appearance January 29, 1974; was filed that because of questions serious of fact it then determined a trial was jury desirable protect rights litigants; and interests and that no prejudice plaintiff’s rights inconvenience or result granting would It is request by delay the motion. noted that there was no proceedings. 11, 1974, On February granted the trial court 25,1974, a jury February leave to file demand instanter. Thereafter on demand, trial court granting vacated order to file leave and then it. denied The record contains handwritten order asserting February granted order had been upon absence for plaintiff objection of counsel tendered counsel plaintiff, arguments the trial court hearing after entered order 3,1974, proceed vacatur and denial. The did not trial until case June again time the trial denied renewed motion jury trial. I,
Article section of the Illinois Constitution of 1970 provides that the right of trial jury as heretofore enjoyed shall remain inviolate. This right to jury trial has guaranteed been in Illinois since the State has been *11 organized.
Section 64 of the Civil
Act requires
Practice
by
affirmative action
a
party in order tо obtain
jury
a
trial.
procedure
This
was sustained as
against
in Stephens v.
objections
constitutional
Kasten
(1943),
127,
383 Ill.
In our court “[cjourts zealously guard right person a by to a trial jury.” (383 133.) supreme court pointed that the filing out late jury of a demand should be if allowed proof copy in the record indicates a of service verified motion was served on February attorneys by 1974. plaintiffs mail on App. 606. 43 Ill. 357 N.E.2d Co. Construction v. Power See Hernandez court, parties litigant, prejudice or does not tend to inconvenience whatsoever, 383 Ill. rights any in manner parties’ demand, filing jury of a in discussing payment upon In of a fee 431, 433, 245 Ill. & Restaurant Co. Kirsner Morrison Hotel * ° said, right of trial N.E. court the cherished supreme our inviolate, construed liberally statute should be jury shall remain protect should be to and the inclination of the court right favor of right.” enforce the jury shown the late good
In I think there was cause the case at bar corporation an assistant signed demand. The answer knowledge corporation It counsel. is a matter of common Regardless, as the case large many counsel’s is assistants. office trial, able, experienced special retained an ripe became counsel, special days employment counsel. Within 30 after jury Special verified motion for a trial was filed. counsel asserted under “* °* fact questions oath that there were serious which could most for both fairly adequately be determined and the * * jury defendant is no denial this assertion in the There Likewise, special record. counsel claimed there would be no rights by granting inconvenience or the motion. prejudice plaintiffs That is In did until over undenied. fact the bench trial not commence three months later. not, my jury opinion the record clear the late demand would court, not,
and did
parties litigаnt,
prejudice
inconvenience the
rights
anyone
any
right
jury
If the
to a
trial
manner whatsoever.
construed,
Hotel,
should
if
liberally
as set forth Morrison
guideline
Stephens
should
any meaning,
to have
then the
have
granted jury
deny
been
trial. To
trial under the facts and
jury
my
It is
opinion
my
circumstances
clear abuse of discretion.
circumstances,
should,
trial
any
gladly
under these
any party
right
afford
trial. Wenban v.
constitutional
Cf.
(2d
561, 563,
1974),
Weiner
Dist.
N.E.2d 255. There is the facts in Hudson a clear distinction between where by delay, claimed it would be inconvenienced claim was disputed There is no such claim in the instant record. case.
For these reasons I for a trial. would reverse and remand new
II. I disagreе majority opinion also to the with the reference (Second) Restatement of Torts (1965). I do not §323 believe that section applies to the facts and circumstances of this case. I nothing There is *12 in this referred to section either that the services suggests find that
can by a municipality to the maintenance comparable are include or 323 leads me to conclude has no reading of section lighting. My street of facts. applicability set
ORDER DENYING REHEARING petition rehearing denied. JIGANTI, JJ., HAYES and concur. DOWNING, dissenting:
Mr. PRESIDING JUSTICE rehearing following for the reasons: grant petition I would (1) grant City Chicago (City) The failure of the trial court to majority opinion. my trial as set forth in dissent to the because, (2) hаving liable installed majority opinion holds to remain out lights, negligent permitting street it was street inherently dangerous, nor did it have though even the street itself was not contributed to the incident. an obstruction or defective condition which Ill. 2d Chicago Heights (1969), Baran v. . I problem is illustrative of the have with the majority,
cited Baran, at a “T” intersection majority the accident occurred opinion. barricades, the street terminated at or reflectors to indicate signs, with no dispute adequacy as to the of the the “T”. The evidence was * * * said, conditions, supreme illumination. Under those injured and someone is as a city creates a hazardous condition when a damages, just required as others are consequence respond it must 177, 181.) language, I the hazardous condition (43 Ill. 2d As read do.” barricades, or reflectors to warn a signs, “T” with no was the intersection But such hazardous hazardous condition. there no motorist of the imposing liability on the bar. The basis for condition the case at negligent solely in was having lights, installed street City was the fact persuasive indicates—but not for the reason that the evidence without liability I of the out. would not extend dispute were —the relied on extreme, reading I think fair of the cases nor do City to majority do so. lights were out the time (3) finding trial that the street court’s contrary weight to the manifest evidence. the occurrence rehearing and petition for I would allow the For all these reasons trial court. finding of the reverse the