Opinion on Rehearing
On July 23, 1955, claimant in the above entitled cause filed a petition for rehearing alleging that the previous opinion of this Court was:
1. Contrary to the weight of the evidence.
2. Contrary to the law applicable.
3. In error in finding that complainant was guilty of contributory negligence.
Complainant concluded with a prayer requesting a rehearing on the question of law in regard to claimant’s contributory negligence, or, in the alternative, that the cause be remanded to the Commissioner for a further hearing on the question of claimant’s knowledge of the defects in the street.
The report of the proceedings consists of 76 pagés. There is no dispute about the existence of the holes in the street, and the responsibility of the state to maintain the area. There is no dispute that claimant was injured, and suffered pecuniary loss. The only bar to a recovery is whether claimant has satisfied the burden of proof required of her to establish by a preponderance of the evidence that she was free from contributory negligence.
The record discloses that claimant testified as to the condition of the street, and was cross-examined on the subject. This Court does not believe that additional testimony would be helpful in determining the issue. Therefore, the request to refer the matter back to the Commissioner for additional testimony is denied.
At this juncture, it may be well to point out that the Court of Claims sits in the dual capacity of judge and jury. It must first decide questions of fact, and thereafter apply the law to said facts.
The question of contributory negligence is ordinarily a question of fact for a jury, and, if there is any evidence to support the burden of proof imposed on plaintiffs, the courts, on appeal, will not disturb the verdict. However, if there is no evidence sustaining the burden of proof, or if the evidence is based on mere conjecture, the courts, on appeal, will not permit a verdict to stand. At common law, contributory negligence is a complete defense to an action to recover for injuries negligently inflicted. Butterfield vs. Forrester, 11 East. 60.
In Illinois, the courts have reiterated this rule in many cases, and the Court of Claims has on previous occasions denied recovery where the burden of proof was not sustained. In a recent case, Heston vs. Jefferson Building Corporation, 332 Ill. App. 585, a woman recovered a judgment. At the conclusion of the case, a motion was made for judgment, notwithstanding the verdict, and it was granted.
On appeal, the court stated:
“A woman, to whom a six-inch step from black floor of ladies’ rest room up to white marble floor, on which toilets were located, was visible when she entered room, was contributorily negligent, as a matter of law, in failing to see step when she left toilet five minutes later, so as to bar her recovery of damages from building owner for injuries sustained in fall on floor at step-off, in absence of evidence of any reason for such failure.”
In the instant case, claimant walked around, or over, a certain intersection that was in a dangerous condition. In thirty minutes or less she retraced her steps, and fell, suffering injuries. When she says that “she didn’t pay any attention to the holes”, this Court can only conclude that she did not use ordinary care under all the facts and circumstances of the case.
The law does not countenance the anomaly of one professing to look and not see that which is clearly visible.
Warren vs. Patton, 2 Ill. App. (2d) 173.
Roy vs. Chicago Motor Coach Co., 345 Ill. App. 296.
Donnelly vs. Real Estate Management Corp., 342 Ill. App. 453.
For the reasons above stated, the petition for rehearing is denied.