Swenson v. City of Aurora

Mr. Justice Niehaus delivered the opinion of the court. This is an action on the case commenced by Jacob Swenson, the appellee, in the Circuit Court of Kane county, against the appellants, the City of Aurora,, to recover damages for injuries which appellee claims he received by inadvertently stepping into a hole in a defective sidewalk, situated on the west side of LaSalle street between Washington street and North avenue, in front of a place called Jennings Seminary, and located about fifty feet north of the intersection of North avenue and LaSalle street. Appellee claims that the injuries which he received by the fall resulted in a permanent stiffening of his left knee and ankle joints. There are many controverted questions of fact in the case, arising from the evidence, as to the size and depth of this so-called hole, and as to whether or not it was of such a character as to be dangerous to pedestrians exercising due care, also as to whether or not appellee proved that the alleged fall upon the sidewalk was the proximate cause of the" injuries from which he claims to be suffering. The nature and extent of appellee’s'injuries was also a contested question, and as to whether or not the stiffening of appellee’s joints was the result of the injuries which appellee received from the fall on the sidewalk, or were the result of another accident which happened to him about six months later, in which he suffered a fracture of the thigh. All these controverted questions and others of a like nature were matters for the determination of the jury, and the findings of a jury upon questions of this kind, arising from the evidence, are rarely disturbed by a court of review, unless the findings appear to be unreasonable, or it is apparent that they result from passion or prejudice existing in the minds of the jury. An objection is made by appellant to the declaration in the case, and it is claimed that it is insufficient because it does not charge that LaSalle street, in the City of Aurora, is a public street. But this objection is not well taken. The Supreme Court in the case of Carlin v. City of Chicago, 262 Ill. 566, has adjudicated this matter. It wag there held that the word “street”" is a generic term, which includes within its meaning ‘ ‘ all public roads or ways within a municipality over which the municipality has jurisdiction, and to which it owes a public duty of exercising reasonable care to keep and maintain them in a reasonably safe condition for public use.” On the trial of the case in the court below, the appellee was permitted by the court to exhibit to the jury his injured limb, and we perceive no legal impropriety in this; however, having voluntarily put his injured limb in evidence before the jury, it became appellant’s right not only to examine it by means of sight, but also to make a physical examination of the limb by its physician (who was present) under such reasonable restrictions as the trial court might see fit to require. The refusal of the court to allow such physical examination, under the circumstances, was error. Pronskevitch v. Chicago & A. Ry. Co., 232 Ill. 136. But appellee’s right to recover against the appellant was dependent upon giving a notice of his claim, as required by section 7 of an “Act concerning suits at law for personal injuries and against cities, villages and towns. Approved May 13,1905, and in force July 1, 1905.” (Chapter 70 of the Revised Statutes of 1913, J. & A. ¶ 6190.) In the case of Reichert v. City of Chicago, 169 Ill. App. 493, five essential elements are emphasized as necessary to constitute a valid notice of this kind, viz.: (1) The name of the person to whom such cause of action has accrued. (2) The name and residence of the person injured. (3) The date and about the hour of the accident. (4) The place or location where such accident occurred. (5) The name and address of the attending physician (if any). The notice which appellee gave to the appellant in this case was deficient in at least three of the requirements mentioned: (1) The description of the place does not definitely, locate the place where the hole in the sidewalk was situated. (2) The hour of the accident is definitely fixed at 5:30 in the afternoon, and according to the proof the injury occurred at about 8:30 in the evening. (3) The notice did not state the residence of the appellee, the person injured. The statement in the notice of the location of the hole in the sidewalk into which appellee claimed he stepped and stumbled is given as follows: “Said hole being located upon the west side of said LaSalle street, between North avenue and Washington street, and opposite Jennings Seminary, in the city aforesaid.” In the area of sidewalk covered by the description, there may have been a large number of holes. The appellee testified that the hole in question was located in the sidewalk, about fifty-five feet north of the corner of North avenue. This testimony fixes the location with sufficient definiteness, and no reason is apparent why the appellee could not have fixed the location with equal definiteness in his notice to the appellant. “To be legally sufficient, a notice of this kind must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself.” Benson v. City of Madison, 101 Wis. 312. In this Benson case, supra, the description refers to the place where the accident occurred in the following words’: “On the south side of State street at the intersection of State street and Fairchild street.” It was held to be insufficient, and the court in passing upon the point made use of this language: ‘ ‘ The notice in this case is most vague, uncertain and indefinite when applied to the facts proven on the trial and found by the jury. The recovery sought is based upon alleged imperfections in a crosswalk ‘ on the south side of State street at the intersection of State street and Fairchild street. ’ This description of the location might have been sufficient if the remainder of the notice had described the insufficiency in such terms as to enable the city authorities to determine on which side of Fairchild street it was to be found.” In passing upon the lack of definiteness, in a similar notice, in the case of Lee v. Village of Greenwich, 48 N. Y. App. Div. 391-394, the court says: “If the notice is designed to answer any useful purpose, by way of calling the attention of the authorities to the actual facts and conditions which existed at the time and place, and which caused the accident, and so aid them in forming a judgment as to settlement, it is plain that such a notice as to accidents of this nature should be, as to ‘time’ and ‘place,’ specific and not general, and should be as definite and exact as the claimant can reasonably make it. Such a notice is conclusive upon the claimant in any action afterwards brought for injuries sustained; the time and place cannot be shifted to suit conditions on other days and at other places.” In the case of Reichert v. City of Chicago, supra, the claimant notified the city that he was “injured by a defective street lamp * * * at and near the intersection of LaSalle street and Madison street, in the City of Chicago.” And the description was held not sufficiently definite. It may be said concerning appellee’s statement in the notice of the hour at which the accident occurred that it was not necessary to state the hour definitely. The statute only requires a statement of “about the hour”; but, when the claimant does undertake to state the hour definitely, and states it definitely wrong, then such statement becomes detrimental instead of beneficial to the city, for the purpose for which it is required by the statute; that is. to say, instead "of giving the city as nearly a correct idea of the hour as the claimant could give, it suggests a positively incorrect idea on that subject, and so, instead of leading the city to the facts in its investigation, it misleads it. So far as the practical effect is concerned, the city is in no better position than if no hour had been stated, and a failure to state the hour of the accident renders the notice fatally defective. Zycinski v. City of Chicago, 163 Ill. App. 413; Condon v. City of Chicago, 249 Ill. 602. And defects of this kind cannot be cured by showing that the city was not 'actually misled. Ouimette v. City of Chicago, 242 Ill. 501. But the most serious defect in the notice in question is the failure of appellee to state his place of residence. The residence given in the notice was not his and never had been. The omission of the place of residence is clearly fatal to the validity of the notice. And it is clear that this defect cannot be cured by the showing that he resided at some other place on the same street, for it is the very fact that he resided at some other place than the one mentioned in the notice that renders the notice invalid. Unquestionably, the purpose which the Legislature had in view in requiring the notice to state the name and residence of the party injured and the name and address of the attending physician was to give cities, towns and villages in cases of this kind correct information, upon which they could properly pursue their investigation, to ascertain the extent and nature of the injury suffered by the person injured, which in many cases might become, as it did on the trial of this case, an important and controverted question. It is evident, therefore, that a definite and correct statement as to the residence of the party injured, in the notice, is of co-ordinate importance with a correct and definite statement of the place where the injury occurred. “The object of the statute is to furnish timely notice to the city, village or town of the fact that the party claims to have sustained an injury and that he proposes to enforce his claim for damages against said' city, village or town by suit, and thereby enable the city, village or town to investigate the claim while the facts are fresh and the justice of the claim can be readily ascertained.” Donaldson v. Village of Dieterich, 247 Ill. 526. The courts of this State have always insisted on the necessity of a strict compliance with the requirements of this statute, concerning the notice under discussion. The statute is mandatory, and the giving of a notice, such as the statute prescribes, is a condition precedent to the maintenance of a suit for personal injury against a city, village or town; and the giving of such notice must be averred and proved, otherwise the suit will be dismissed and a recovery barred. Erford v. City of Peoria, 229 Ill. 546; Ouimette v. City of Chicago, 242 Ill. 501; Schoeler v. City of Rockford, 160 Ill. App. 217. For the reason stated the statutory notice given to appellant in this case is clearly and fatally deficient, and the judgment must therefore be reversed. Reversed with finding of facts. Finding of facts to be incorporated in the judgment. We find from the evidence: That the description in the statutory notice to appellant of the place where the injury occurred is not sufficiently definite. That the hour of the accident is incorrectly stated in the notice. It purports to state the hour exactly, but the accident did not occur within three hours later. That the residence of the appellee, the person injured, is not stated in the notice. The place of residence stated in the notice was not appellee’s residence and never had been. That for failure by appellee to give appellant the notice required by law, he has no cause of action against appellant.