The opinion
JUSTICE CHAPMAN, specially concurring:
"Dear Friend:
I had not intended to discuss this controversial subject at this particular time. However, I want you to know that I do not shun a controversy. On the contrary, I will take a stand on any issue at any time, regardless of how fraught with controversy it may be. You have asked me how I feel about whiskey. Here is how I stand on the question.
If, when you say whiskey you mean the Devil’s brew, the poison scourge, the bloody monster that defiles innocence, dethrones reason, destroys the home, creates misery and poverty *** takes the bread from the mouths of little children; if you mean the evil drink that topples the Christian man and woman from the pinnacles of righteous, gracious living into the bottomless pit of degradation and despair, shame and helplessness and hopelessness, then certainly I am against it with all of my power.
But, if, when you say whiskey, you mean the oil of conversation, the philosophic wine, the ale that is consumed when good fellows get together, that puts a song in their hearts and laughter on their lips and the warm glow of contentment in their eyes; if you mean Christmas cheer; if you mean the stimulating drink that puts the spring in the old gentleman’s step on a frosty morning; if you mean the drink that enables a man to magnify his joy and his happiness and to forget, if only for a little while, life’s great tragedies, and the heartbreaks and sorrows; if you mean that drink, the sale of which pours into our treasuries untold millions of dollars, which are used to provide tender care for our little crippled children, our blind, our deaf, our dumb, our pitiful aged and infirm, to build highways, hospitals, and schools, then certainly I am in favor of it.” Author unknown, quoted in Respectfully Quoted, A Dictionary of Quotations 9 (Suzy Platt ed. 1992).
The unknown author of the letter on whiskey was drawn in two directions. I understand the feeling since I am drawn both ways in this case. I concur with Justice Maag because I agree that there is a duty owed to pedestrians on roadways; I could, however, agree with some of Justice Lewis’ comments, but for the fact that his criticisms cover issues that were not addressed in the briefs on appeal or in the arguments before the trial court.
In addition, some of his comments would be better made to different audiences or they should be addressing a different complaint. On the first point, Justice Lewis asks, "The question still remains that if you are standing on the side of a bridge or a road, how or why would the presence of weeds obscuring the exact edge of the roadway or bridge make any difference?” (261 Ill. App. 3d at 57.) This is an éxcellent rhetorical question, but it would be more appropriately made to a jury.
On the second point, Justice Lewis states:
"Even if we assume for purposes of argument that a pedestrian is a permitted and intended user of county roads and bridges for any and all purposes imaginable, the fact that the circuit court stated that it was basing its decision on a pedestrian not being an intended and permitted user of the road and bridge should not prevent this court from considering the fact that the defendant has no duty to maintain the areas adjacent to roads and bridges safe for pedestrians leaving the road or bridge.” (261 Ill. App. 3d at 58.)
The problem with his statement is that the question presented to and decided by the trial court was whether the plaintiff was an intended and permitted user of the road and bridge. That question was also the one briefed and argued before this court.
While I enjoy Justice Lewis’ allusions to Longfellow and Shakespeare, I am hopeful that his concern for the plight of snake-bitten plaintiffs may be assuaged by the application of a medicinal amount of "the Devil’s brew.”
I concur with the conclusion of Justice Maag.