Wells v. Village of Kenilworth

Mr. Presiding Justice McSurely delivered the opinion of the court. By this appeal plaintiff seeks the reversal of an adverse judgment entered upon a directed verdict in an action to recover damages sustained to plaintiff’s automobile as the result of a collision between it and a safety island lamp-post standing in the center of Sheridan road at Kenilworth avenue in the Village of Kenilworth, Illinois." Sheridan road runs north and south. Kenilworth avenue intersects it running east and west. At the intersection defendant had placed two safety islands in the center of Sheridan road, one in line with the south sidewalk of Kenilworth avenue, and the other in line with the north sidewalk. These consisted of a cement base eight feet long, three feet wide, raised about a foot from the street pavement. From this base arose a heavy concrete pedestal about two feet square and about ten feet tall. Each column was surmounted with a globe with an electric light bulb, and on four sides of the column were lamps showing lights in all four directions. The accident happened about midnight of August 24, 1922. At this time the north column was intact, but the south column had been broken off two or three nights before by a heavy army truck. The evidence tended to show that on the night of the accident in question none of the lights on either of these islands was lighted; the moon was shining but was low in the sky, and as there were many trees along the road it cast dark shadows on the roadway. Plaintiff was driving his automobile south on Sheridan road. He says he was going less than twenty miles an hour; that his large headlights were not lighted, as they would have blinded the drivers of the automobiles coming from the opposite direction. Two small lights were lighted, also a spot light, which was pointed across the front of the machine towards the pavement or curbing on the sidewalk. As it was dark he kept well towards the center of the street, guiding himself by the lights on the northbound cars. He reached Kenilworth avenue a few minutes after twelve o’clock. He did not see the north safety island or know it was there until he struck it, virtually wrecking his automobile. There was evidence tending to show that the lights on this safety island or column were unlighted at eight-thirty o’clock and also at about eleven-thirty o’clock of that evening. About an hour after the accident they were lighted. Defendant seeks to support the judgment by contending : First: That plaintiff was guilty of contributory negligence. Whether or not this was true was a question of fact which should have been submitted to the j™y. Second: That the safety island was not an obstruction to travel but an aid thereto and a necessary proteetion to people using the streets. This question is wholly one of fact for the jury to determine. Three. That it was unnecessary to equip this column with lights at all. Again this depends upon the conditions and circumstances of the location and is purely a question of fact. Fourth: No proof of any negligence on the part of defendant in failing to have the column lighted at the time of the accident and no proof of any direct or constructive notice that the lights were out at this time. These are questions of fact. There was evidence from which it might be reasonably inferred that the lights were not turned on upon this evening until an hour after midnight. It is also a reasonable inference that they were usually turned on by some agent of the defendant charged with this duty, and that this would be done by the simple act of making the proper connection by an electric switch. Under such circumstances the person charged with this duty would or should know that he had not turned on the lights at this time. No other notice to defendant would be necessary. If the lights were out because of some break or defect, it would still be a proper question for the jury to determine whether this condition had existed sufficiently long to amount to constructive notice to defendant of this fact. Principles underlying such a situation are that when a municipality places an obstruction in one of its highways it is charged with the duty of properly guarding it and placing warning signals thereon so it will not constitute a danger to traffic, and it is a question for the jury whether or not this has been properly done. City of Chicago v. Brophy, 79 Ill. 277; City of Salem v. Webster, 192 Ill. 369; Hanrahan v. City of Chicago, 289 Ill. 400; City of Aurora v. Rockabrand, 149 Ill. 399; City of LaSalle v. Evans, 111 Ill. App. 69. The question of notice in such cases is ordinarily for the jury and depends largely upon the nature of the defect, if any, and the circumstances of each particular case. City of Ottawa v. Hayne, 214 Ill. 45; City of Chicago v. McCulloch, 10 Ill. App. 459; Douvia v. City of Ottawa, 200 Ill. App. 131; Elliott on Roads and Streets, pages 660 and 933. Plaintiff sought to introduce evidence of a collision between a truck and the south safety island or column occurring two or three nights before the accident in question and that the cause of this other accident was the absence of lights on the column. The court ruled against the admission of this testimony. This was competent as tending to show that the absence of lights was a common cause of the accidents, hence tending to raise a presumption of knowledge. City of Chicago v. Jarvis, 226 Ill. 614. For the reasons above indicated the peremptory instruction to the jury was erroneous and the judgment entered pursuant thereto is reversed and the cause is remanded. Reversed and remanded. Hatchett, J., concurs.