Opinion
No. 54372 Judgment reversed and cause remanded.
October 4, 1971.
APPEAL from the Circuit Court of Cook County; the Hon. JOHN C. FITZGERALD, Judge, presiding.
Perry M. Berke and Morton Yellin, of Chicago, (Julian J. Frazin, of counsel,) for appellant.
Richard J. Curry, Corporation Counsel of Chicago, (Marvin E. Aspen and Richard F. Friedman, Assistant Corporation Counsel, of counsel,) for appellee.
This is an action for damages for personal injuries alleged to have been sustained as the result of a fall caused by a defect in a public sidewalk. The trial court found that the plaintiff had suffered damage, but concluded as a matter of law that the defect was not of sufficient proportions to be actionable and entered judgment for the defendant.
On appeal plaintiff takes no exception to the principle laid down by the Supreme Court in Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601 to the effect that not every sidewalk defect will subject a municipality to liability. (There it was held that a question of fact "on the issue of the city's negligence is presented only when the defect in the sidewalk is such that a reasonable prudent man should anticipate some danger to persons walking upon it" at p. 605.) Rather, plaintiff contends that the trial court erred in considering its own view of the scene and measurements taken by counsel at the time of trial in reaching its determination. In view of the narrow issue presented on appeal, we need detail only the evidence presented with respect to the defect itself.
Plaintiff, the only occurrence witness, testified that he sustained his injuries at approximately 6:30 P.M. on the evening of September 29, 1965. He was walking eastward on the north side of Chicago Avenue immediately prior to the occurrence. When he reached Wabash Avenue and attempted to cross he was forced to retreat to the sidewalk on the northwest corner of the intersection by a southbound car. As he started forward after the car had passed, his right foot caught in an unseen defect in the sidewalk and he fell headlong toward Wabash Avenue.
He examined the defect which caused the fall and found it to be a triangular shaped hole which he judged to be between six and eight inches in length. He also testified that another of the defect's dimensions was between three and four inches, but it is impossible to determine from the record whether this testimony referred to the depth or breadth of the hole.
Plaintiff also introduced a series of photographs which show the defect in question to be a hole in the sidewalk which is triangular in shape and located at the border of two adjacent slabs of concrete. The only other evidence offered by plaintiff relating to the defect was the testimony of Michael King. He testified that he viewed the scene two or three days after plaintiff's fall and found the hole to be less than a foot long and three to four inches deep in some sections.
Following the close of defendant's case, the trial court noted that he had acted upon the suggestion of counsel and visited the scene. (Such a suggestion by counsel does not appear of record, but no exception to the statement was made either in the trial court or on appeal.) The judge further noted that while at the site, he observed certain numbers in the concrete adjacent to the defect and that these same numbers were visible in certain of plaintiff's photographic exhibits. The court then suggested that measurements of these numbers be taken and submitted into evidence.
Following a recess, counsel for both parties announced to the court that they had visited the site and measured not the numbers, but the defect itself. Counsel then stipulated that they found the three sides of the hole to be 3 1/2, 5, and 5 1/2 inches in length. They found the maximum depth of the hole to be 1 1/4 inches.
• 1 Both the view of the scene by the trial court and the measurement of the defect by counsel took place some 37 months after the incident which resulted in plaintiff's injuries. Yet the trial court relied upon the information gathered during those visits even though the record contains nothing to indicate that the defect remained substantially unchanged during that interval. The difficulties attendant to such reliance are amply demonstrated here as both parties have suggested that this court speculate as to the manner in which the dimensions of the defect might have been altered through the passage of time. This, of course, we cannot do. The situation presented here is substantially the same as in the case of evidence of an experiment where the threshold inquiry is necessarily directed to the reliability of the proffered evidence. We believe the same requirements to to foundation evidence therefore should apply. (See Thomas v. Chicago Transit Authority (1969), 115 Ill. App.2d 476.) We must therefore conclude that the trial court's consideration of both his own view of the scene and the measurements taken by counsel was erroneous.
• 2 The only properly admitted evidence with respect to the size of the defect was the testimony of plaintiff and the witness King as outlined above. We must conclude that based upon that evidence the trial court's determination that the defect was not of sufficient proportions to be actionable under the rule laid down in Arvidson was erroneous. Accordingly, the cause must be remanded for trial on the merits.
• 3 In his prayer for relief plaintiff has requested that in the event that the judgment is reversed the cause be remanded for a new trial on the issue of liability alone. Supreme Court Rule 366 (Ill. Rev. Stat. 1969, ch. 110A, par. 366) vests this court with the authority to enter an order for partial new trial. We do not believe, however, that such a disposition would serve the ends of justice and fairness in the circumstances of this case. Judgment reversed and cause remanded with directions to proceed in a manner not inconsistent with this opinion.
Judgment reversed and cause remanded with directions.
BURKE, P.J., and GOLDBERG, J., concur.