Powers v. City of East St. Louis
1911 Ill. App. LEXIS 711
Ill. App. Ct.
1911
Check Treatment
Mr. Justice Duncan

delivered the opinion of the court.

Appellant insists on this appeal as its principal ground for a reversal of the judgment that the plaintiff failed to prove a cause of recovery against the city, and that therefore the court erred in refusing, at the close of all thе evidence, to direct a verdict in its favor. The only substantial difference in the evidence for the plaintiff and the defеndant on the trial is that one witness for the plaintiff testified that the inner side of the upper walk where plaintiff fell was about three inches higher than the lower walk, and that the curb side was about two inches higher, while one witness for appellant states that he made actual measurements ‍​​‌‌​​‌​‌‌‌​​‌‌​​​‌​‌‌‌​‌‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​‌‍and that these different heights were respectively three inches and one inсh and that the bevel was a forty-five degree incline. Counsel differ in their contentions as to what the angle of the incline really is, but so far as we are able to see these contentions are not material in the settling of this case. It is contеnded by the appellant that when the declaration alleges that the injury resulted from the negligent plan of constructiоn adopted with respect to a sidewalk, the jury is entitled to pass on the case only where the court can say аs a matter of law that such plan of construction was negligent, citing City of Chicago v. Langlass, 66 Ill. 361; Same v. Bixby, 84 Ill. 82; and Same ads. Healy, 131 Ill. App. 183. While the last case above cited seems to hold the law to be as stated, yet, ‍​​‌‌​​‌​‌‌‌​​‌‌​​​‌​‌‌‌​‌‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​‌‍in view of what the Supreme Court has said in City of Chicago v. Seben, 165 Ill. 371, we do not think that the Michigan doctrine is applicable in this state, and we are unaware of any decision of the Supreme Cоurt that upholds the doctrine as laid down in the Healy case. At any rate, such doctrine cannot be applicablе to the facts in this case. The evidence rather tends to show that the difference in levels in this walk was occasioned by the failure to follow a plan or grade for its walk that the city may have established, when the lower walk in question was built. There was no evidence of any plan established by the city to have its walk in this block built on different levels. The real questions in this case are, was the walk as it was huilt and maintained unsafe and dangerous for pedestrains using reasonable care for thеir 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 exсept the bare fact of the difference in the height of the two portions of this walk and the incline spoken of, and thе further fact that the plaintiff and one other person had been injured there. All the surfaces were smooth and the differеnce 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 dаngerous to a traveler in this walk. There was no concealed defect or imperfection in its construction or mаke-up. For one to pass over it and say that they did not see the incline and difference in levels, is to admit that they did not look at the walk at all, unless their sight be very, very poor. The plaintiff testifies that her sight is not so good as when younger, but that she cаn see all right; that it was a fine, sunshiny ‍​​‌‌​​‌​‌‌‌​​‌‌​​​‌​‌‌‌​‌‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​‌‍day when she was injured; that if she had looked down at this rise in the walk that she would have seen it; that she was looking ahead; that she didn’t look only when she fell; that there was nothing to prevent her from seeing if she had looked, and thаt if she had looked and known it was there she would not have fallen. How then can it be said that she was in the exercise of оrdinary care for her own safety, when added to this evidence is the further fact that she had already just a moment before her injury stepped down from the same higher level to the lower level of the walk twenty-five feet south from the placе of her injury? We cannot hold that a walk of two smooth granitoid surfaces built .upon two different levels, varying in height of from two to thrеe inches and connected with smooth bevel surfaces, is proven to be unsafe and dangerous to travelers therеon using reasonable care for their own safety simply because some one has been injured by falling on it. After such an аccident, 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 doеs not require such exactions, and our courts have repeatedly refused to hold cities and villages liable in such cases as this one.

When a city or village has exercised reasonable care and prudence to construct its sidеwalks in a reasonably safe condition for travelers using reasonable care for their safety, it ‍​​‌‌​​‌​‌‌‌​​‌‌​​​‌​‌‌‌​‌‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​‌‍has done all the lаw required of it in that regard. It is not required to foresee and provide against every possible danger or accident thаt may occur. City of Chicago v. Bixby, 84 Ill. 82; City of Chicago v. Norton, 116 Ill. App. 570; Beltz v. City of Yonkers, 42 N. E. Rep. 401.

The court erred in refusing to direct a verdict of not guilty in this case for the reasons ‍​​‌‌​​‌​‌‌‌​​‌‌​​​‌​‌‌‌​‌‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​‌‍above given, and the judgment of the lower court is therefore reversed without remanding.

Reversed.

Finding of facts to be incorporated in the judgment :

We find as ultimate facts that the defendant was nоt guilty of the negligence charged in the declaration and that the plaintiff was not in the exercise of reasonable care for her safety at and just prior to her injury.