{ "id": 5273834, "name": "Nellie Greig, Plaintiff-Appellee, v. City of Park Ridge, a Municipal Corporation, Defendant-Appellant, and Bernard Bishop, d/b/a Bishop Tree and Landscape Service, Defendant", "name_abbreviation": "Greig v. City of Park Ridge", "decision_date": "1964-05-28", "docket_number": "Gen. No. 49,274", "first_page": "237", "last_page": "243", "citations": [ { "type": "official", "cite": "49 Ill. App. 2d 237" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "23 NE2d 354", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "302 Ill App 58", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3146610 ], "opinion_index": 0, "case_paths": [ "/ill-app/302/0058-01" ] }, { "cite": "172 NE2d 502", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill App2d 116", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5220230 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0116-01" ] }, { "cite": "158 NE2d 438", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill App2d 514", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5199507, 5198343 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/21/0514-02", "/ill-app-2d/21/0514-01" ] }, { "cite": "145 NE2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill2d 601", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2785107 ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0601-01" ] } ], "analysis": { "cardinality": 566, "char_count": 9795, "ocr_confidence": 0.541, "pagerank": { "raw": 7.353430421691003e-08, "percentile": 0.44137804945384845 }, "sha256": "be4deea155ee556236ed993a409bd627ef501bfb1d9bc60132ff1efda42abaef", "simhash": "1:c0fea0bd2ad587dd", "word_count": 1729 }, "last_updated": "2023-07-14T21:56:27.492141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Nellie Greig, Plaintiff-Appellee, v. City of Park Ridge, a Municipal Corporation, Defendant-Appellant, and Bernard Bishop, d/b/a Bishop Tree and Landscape Service, Defendant." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE SCHWARTZ\ndelivered the opinion of the court.\nThis is an appeal by the City of Park Ridge from a judgment on a verdict for $6,000 for personal injuries sustained as the result of a fall which plaintiff charges was caused by a stump left by the city in a parkway. Defendant Bishop operates a tree and landscape service, and his services are used by the city to cut down dead and diseased trees. On April 10, 1961, Bishop cut down a tree, leaving the stump here in question. The removal of stumps involves the use of heavy machinery which is costly to put into operation and hence the city, which uses another contractor to remove stumps, calls him only after a substantial number have accumulated.\nOn May 3, 1961, about 4:30 in the afternoon, plaintiff, an 85-year-old woman, was being taken home by Mrs. Priscilla Buchan for whom she had been baby sitting. Mrs. Buchan drove west on Tuohy Avenue and stopped her car close to the curb on the north side of the street near the plaintiff\u2019s home. Mrs. Buchan had often left the plaintiff at that point and was aware that a tree had been cut down and a stump remained. From a photograph included in plaintiff\u2019s brief it is clear that the stump, about three feet in diameter, was located in the parkway about a foot or so from the Tuohy Avenue curb. As the tree had been cut at an angle, the stump protruded from the ground a few inches at one point and was almost flush with the grass at the point nearest the curb. When Mrs. Buchan, who did not see plaintiff fall, helped her up, the stump was to the rear, behind the door of the car from which plaintiff had emerged.\nPlaintiff testified that she knew Mrs. Buchan was in a hurry to get home and so she proceeded to get out of the car as soon as Mrs. Buchan stopped. Her testimony as to what she did immediately thereafter is the crucial part of this case, and we therefore quote from it as follows: \u201cI put the right foot down, and kept getting at the edge of the seat, and I couldn\u2019t get a hold, couldn\u2019t get my foot any further it just \u2014 it was soft dirt down there and I thought \u2018That isn\u2019t like it always is.\u2019 \u201d Plaintiff then put her left foot out and, to quote again, \u201cas it went down, I kind of clicked on. a stone or a curb, or something, but there was nothing to it, it slid off and just went on. Then both toes were fastened right against something like that; well, then I stood up. ... I pushed the car door clear open, and there was that great big stump. I never seen that stump there before in my life. . . . And when I saw that thing, I said to myself, \u2018I am going to hit it,\u2019 because I couldn\u2019t move my feet anywhere. ... I couldn\u2019t look down at my feet to see what my toes were up against. . . . That old coat was swinging forward. ... I never saw the ground or anything. All I could do was feel that soft dirt and the toes wouldn\u2019t go any further, neither one of them. So, I either had to fall \u2014 I had to fall because there was no place I could step. Then I fell down, fell clear across the stump.\u201d\nOn cross-examination she testified: \u201cI couldn\u2019t see the ground at all. That coat [apparently referring to the coat she was wearing] was sticking up there, but I had done that so many times, I thought everything was all right.\u201d On deposition she testified: \u201cMy heel kind of felt the curb as I went down.\u201d Thereafter, she testified: \u201cOf course, I had my big purse in my hand and that kind of fuddled me up when I was holding on to the car door.\u201d\n\u25a0 Plaintiff alleged ordinary negligence and wilful and wanton conduct on the part of both the city and Bishop. The city\u2019s motion to strike the wilful and wanton charge and its motion for a directed verdict on that charge were denied. After the court denied these motions, the attorney for the city submitted prepared interrogatories. One of the interrogatories required the jury to answer whether the city was guilty of wilful and wanton conduct; another, whether defendant Bishop was guilty of wilful and wanton conduct; and a third, whether plaintiff was guilty of contributory negligence. The jury answered that the city was guilty of wilful and wanton conduct; that Bishop was not; and that plaintiff was free from contributory negligence. The jury found defendant Bishop not guilty and returned a general verdict against the city. The city\u2019s motions for judgment notwithstanding the verdict and for a new trial were denied.\nThe city contends that the submission of the wilful and wanton charge to the jury was error. Illinois Pattern Jury Instruction No. 14.01, used in the case, defines wilful and wanton conduct as the \u201ccourse of conduct which shows an utter indifference to or a conscious disregard for the safety of others.\u201d While a municipality is required to maintain its streets and sidewalks, including parkways, in a reasonably safe condition considering the use to be made of such area (Arvidson v. City of Elmhurst, 11 Ill2d 601, 145 NE2d 105), no cases have been cited in the briefs, and a search of the authorities has not revealed any case in Illinois which has held a municipality guilty of wilful and wanton conduct. We do not conclude from this that a municipality cannot be guilty of wilful and wanton conduct, but apparently it would be an extraordinary case.\nPlaintiff argues that an injury sustained as the result of direct, positive conscious action by a municipality through its officers and agents, as opposed to an injury sustained as the result of damage or deterioration caused by agencies not under its control (presumably such conditions as ice, snow, water, wind, fire, etc.) is more likely to be the result of wilful and wanton conduct of the municipality. While this may be true, the distinction of itself is not sufficient to show an utter indifference to or a conscious disregard for the safety of others. Tree cutting and trimming was undertaken for the safety of passing motorists and pedestrians. It was intended to protect them against overaged and diseased trees from which branches might fall. The tree involved was not located at an intersection, but was in the middle of a parkway where trees and therefore stumps normally stand and where the flow of pedestrian traffic is slight. The city\u2019s explanation as to why the stump was not removed immediately and why it was permitted to remain for about three weeks is reasonable and plausible. The evidence does not reveal that the city was utterly indifferent to or had a conscious disregard for the safety of others. There was no basis for the submission of the wilful and wanton charge to the jury. ^\n^ Plaintiff argues that the city is bound by the jury\u2019s special finding of fact concerning its wilful and wanton conduct because the city did not specifically object in the form of a motion for a new trial or a motion to set aside the special finding of fact (Hilyard v. Duncan, 21 Ill App2d 514, 158 NE2d 438; Kotowsky v. Cook, 29 Ill App2d 116, 172 NE2d 502; Rubottom v. Crane Co., 302 Ill App 58, 23 NE2d 354) and did not argue the error of the jury\u2019s special finding in its brief. Kotowsky v. Cook, supra.\nThe city in its post-trial motion said: \u201cThe verdict of the jury and the answers to the special interrogatories are wholly unsupported by the evidence and are the result of overpowering sympathy on the part of the jury toward the plaintiff.\u201d This was sufficient to identify for the trial court the nature of the city\u2019s objection to the jury\u2019s special finding of fact and is therefore sufficient to preserve the question for appeal. Plaintiff\u2019s reliance on Hilyard v. Duncan, supra, and Kotowsky v. Cook, supra, is misplaced, since in both cases there was no mention of the special interrogatory in the post-trial motion. The city in its points and authorities said: \u201cThe trial court erred in denying the defendant\u2019s motion for a new trial because: A. The case should not have been submitted to the jury on a wilful and wanton charge. B. The verdict was contrary to the manifest weight of the evidence.\u201d This was a sufficient compliance with the rules of this court.\nIt is impossible to say to what extent the jury was influenced by the charge of wilful and wanton conduct. Plaintiff\u2019s testimony is vague and rambling. It is difficult to find any evidence showing that she tripped over the stump. She told of her difficulty in alighting because of her coat and bag. From Mrs. Buchan\u2019s testimony, the tree stump was at the rear, behind the door from which plaintiff alighted. It is only the stringency of the rule with respect to directing a verdict which would permit the case to go to the jury on the negligence count.\nIn such a case it is important that there be no errors which might mislead the jury. The injection of the wilful and wanton issue was such an error. The answer to the interrogatory that defendant was guilty of wilful and wanton conduct reveals the jury\u2019s confusion and their understandable sympathy for this plaintiff, an 85-year-old woman, who testified honestly how she- had become mixed up with her coat and bag as she tried to get out of the automobile.\nThe judgment is reversed and the cause is remanded with directions to allow the motion for new trial, and for such other and further proceedings as are not inconsistent with the views hereinbefore expressed.\nJudgment reversed and cause remanded with directions.\nDEMPSEY and SULLIVAN, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE SCHWARTZ" } ], "attorneys": [ "Herbert R. Stoffels, of Park Ridge, and Tom L. Yates, of Chicago (L. J. Locke, of counsel), for appellant.", "Dale, Haffner, Grow & Overgaard, of Chicago (Mitchell J. Overgaard, of counsel), for appellee." ], "corrections": "", "head_matter": "Nellie Greig, Plaintiff-Appellee, v. City of Park Ridge, a Municipal Corporation, Defendant-Appellant, and Bernard Bishop, d/b/a Bishop Tree and Landscape Service, Defendant.\nGen. No. 49,274.\nFirst District, Third Division.\nMay 28, 1964.\nHerbert R. Stoffels, of Park Ridge, and Tom L. Yates, of Chicago (L. J. Locke, of counsel), for appellant.\nDale, Haffner, Grow & Overgaard, of Chicago (Mitchell J. Overgaard, of counsel), for appellee." }, "file_name": "0237-01", "first_page_order": 249, "last_page_order": 255 }