Brennan v. City of Streator

• Decision Date: 17 December 1912
• Citation: 256 Ill. 468,100 N.E. 266
• Parties: BRENNAN v. CITY OF STREATOR.
• Court: Illinois Supreme Court

256 Ill. 468

100 N.E. 266

BRENNAN

v.CITY OF STREATOR.

Supreme Court of Illinois.

Dec. 17, 1912.

Error to Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge.

Action by Ada D. Brennan against the City of Streator. There was a judgment of the Appellate Court (168 Ill. App. 134) affirming a judgment for plaintiff, and defendant brings error. Affirmed.Boys, Osborn & Griggs, of Streator, for plaintiff in error.

George F. Belford, of Streator, and Browne & Wiley, of Ottowa, for defendant in error.

DUNN, J.

The defendant in error recovered a judgment for personal injuries against the city of Streator, which the Appellate Court affirmed, and a writ of certiorari was awarded to bring the record before us for review. The only disputed facts are in regard to the nature and extent of the plaintiff's injuries and the amount of the damages, with which we have no concern. The plaintiff's injuries were received about 8 o'clock in the evening of July 7, 1906, and were occasioned by her stumbling over an obstruction in the street charged to have been negligently permitted to remain there by the defendant. The plaintiff lived on the east side of Sterling street, in the middle of a block, and on the evening in question left her house for the purpose of going to the business part of the town to do some trading. There was a brick sidewalk on the east side of Sterling street, and she walked north on this sidewalk. Seeing a street car turn into Sterling street two blocks south, she determined to take it at the corner of Wilson street, the next street north. When about 50 feet south of Wilson street she attempted to pass four women who were walking abreast ahead of her and occupying the whole sidewalk. In order to pass them she had to step off the sidewalk at its outer edge, and, as she started to do so, her foot struck a valve box attached to a water service pipe, which projected four or five inches above the ground within from one to three inches of the edge of the sidewalk. The plaintiff was thrown to the ground and received the injuries complained of. The sidewalk was a smooth brick sidewalk in good repair. Between it and the curb was a space of 10 feet which is spoken of as the berme, which was also smooth and was on a level with the sidewalk. In this space alongside the sidewalk was a path which was made there by persons passing along the street, and outside the path was a row of trees in the berme, two feet from the sidewalk. The time was after dark, and there was no artificial light. The valve box was an iron pipe 3 1/2 inches in diameter coming up from the water service pipe laid in the ground, extending above the surface and terminating in a cap five inches in diameter. Its object was to control the admission of water to the adjoining premises, and it had been where it was probably since the water pipe was laid four years before, July, 1906. The court refused to give an instruction to the jury to find for the defendant, and it is insisted here that the evidence shows no failure of duty on the part of the city; that, having furnished a safe sidewalk, it is not liable to one who voluntarily leaves it.

[1] A municipal corporation is not under the obligation to keep its streets absolutely safe for persons passing over any part of them. Its duty is only to exercise ordinary care to keep its streets and sidewalks reasonably safe for persons using them who are themselves exercising ordinary care.

[2] Not all parts of all streets are needed for public passage, and it is customary and lawful for cities to improve certain parts of the streets for the use of vehicles, certain parts for foot passengers, and to permit other parts of some streets not required for these uses to be occupied by trees, hitching posts, hydrants, flower beds, stepping stones, poles for telephone or telegraph wires, or wires for the transmission of electricity for light or power. Such obstructions do not constitute a violation of the duty of the city toward the public if the street still remains reasonably safe for those using it in vehicles or on foot and exercising ordinary care. But the question arises in each case whether the obstruction is of such a character that the passenger using the street or the sidewalk in the ordinary way and using ordinary care for his own safety is exposed to an unnecessary and unreasonable risk. This is usually a question of fact, but it may become a question of law where the obstruction is of such a character that reasonable minds cannot differ about it. The present is not such a case.

[3] It cannot be said, as a matter of law, to show a want of ordinary care for a person desiring to pass a party of walkers taking up the whole walk to step on the sod a few inches to one side of the brick or stone or concrete sidewalk. It is not an unusual thing, and what is not unusual is to be anticipated.

[4] It is negligence for one whose duty it is to use reasonable care to make conditions safe to provide conditions which are unsafe under circumstances which ought to be anticipated.

[5] At least it was a question of fact which was proper for submission to the jury whether the valve box, constructed and located as it was with reference to the sidewalk, was so dangerous a menace to persons using the sidewalk with ordinary care as showed a want of ordinary care for their safety on the part of the city in permitting it to remain there.

[6] Objection is made to the giving of five instructions on behalf of the plaintiff. Of the first it is said that it does not state the law of the case or explain the issues, and that it conveys the...