City of Peoria v. Simpson

• Decision Date: 13 June 1884
• Citation: 1884 WL 9884,51 Am.Rep. 683,110 Ill. 294
• Parties: CITY OF PEORIA et al.v.ROBERT SIMPSON.
• Court: Illinois Supreme Court

110 Ill. 294

1884 WL 9884 (Ill.)

51 Am.Rep. 683

CITY OF PEORIA et al.

v.ROBERT SIMPSON.

Supreme Court of Illinois.

Filed at Ottawa Jun. 13, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Peoria county; the Hon. NINIAN M. LAWS, Judge, presiding.

Mr. GEORGE A. WILSON, for the city of Peoria:

Plaintiff's ninth instruction is bad beyond question. It plainly tells the jury that no matter how negligent the injured party may have been, the city is liable to him in any event. Lovenguth v. Bloomington, 71 Ill. 238; Village of Kewanee v. Depew, 80 Id. 109; Armour v. McFadden, 9 Bradw. 508; City of Chicago v. Watson, 6 Id. 349.

The sixteenth instruction is erroneous in telling the jury that if they found for the plaintiff it was their duty to fix his damages at the full sum the whole evidence proved to be just and reasonable. We deny that any court can instruct a jury to fix the damages at the full sum, etc. Chicago and Northwestern Ry. Co. v. Chisholm, 79 Ill. 583.

The ninth instruction should have been modified as follows, viz: “This is the law if the parties injured were at the time exercising reasonable care and prudence to avoid injury.” City of Chicago v. McGiven, 78 Ill. 347; Litchfield Coal Co. v. Taylor, 81 Id. 590; City of Chicago v. Bixby, 84 Id. 82.

A correct instruction given for one side will not obviate an error in an instruction on the other side. Illinois Linen Co. v. Hough, 91 Ill. 63; Quinn v. Donovan, 85 Id. 194.

Messrs. JACK & MOORE, for the appellant Densberger:

As a general rule the tenant in possession, and not the owner, is responsible for injuries received in consequence of a failure to keep the premises occupied, in repair. Gridley v. Bloomington, 68 Ill. 47; Union Brass Manf. Co. v. Lindsay, 10 Bradw. 583; Fisher v. Thirkell, 21 Mich. 1; City of Lowell v. Spaulding, 4 Cush. 237; Milford v. Holbrook, 9 Allen, 17; Leonard v. Storer, 115 Mass. 86; Shipley v. Fifty Associates, 101 Id. 251; Irvine v. Wood, 51 N. Y. 224; Bears v. Ambler, 9 Barr. 153; Painter v. Pittsburg, 46 Pa. 213; Clark v. Fry, 8 Ohio St. 358; Shindlebeck v. Moore, 32 Id. 264; Payne v. Rogers, 2 H. Blackf. 350; Roswell v. Price, 12 Mod. 635; Rich v. Basterfield, 4 Com. B. 783; Russell v. Shenton, 4 Eng. C. L. 449; Bishop v. Bradford, 1 E. & E. 697; Hadley v. Taylor, L. R. 1 C. P. 53.

To this rule there are two exceptions: First, when the landlord has, by express agreement, covenanted to make repairs; and second, when the premises have been let with a nuisance on them.

When there is no agreement as to who shall make repairs the burden is thrown on the tenant. Gridley v. Bloomington, 68 Ill. 47; Gott v. Gandy, 22 Eng. L. & E. 173; Leavitt v. Fletcher, 10 Allen, 121; Elliott v. Aiken, 45 N. H. 36; Estep v. Estep, 23 Ind. 114; City of Lowell v. Spaulding, 4 Cush. 277.

If a tenant leases premises with a nuisance upon them, he does not become liable until notified of the existence of the nuisance. Saxby v. Manchester R. R. Co. 38 L. J. (N. S.) 153; 1 Washburn on Real Estate, (4th ed.) 542.

Even where the landlord contracts in his lease to make repairs, he can not be held liable to third persons until notified of the existence of the defect, for not being liable over to the occupant, he can not be liable to the third party, to whom the occupant is primarily responsible. Norfleet v. Cromwell, 64 N. C. 1; Favrott v. Mettler, 21 La. Ann. 220; Coope v. England, 27 Md. 14.

As to the joinder of parties, see Parsons v. Winchell, 5 Cush. 592; Gray v. Boston Gas Light Co. 114 Mass. 149; Clark v. Fry, 8 Ohio St. 358; Bigelow Carpet Co. v. Bryant, 131 Mass. 491; Dicey on Parties to Actions, 449; Bard v. Yohn,26 Pa. St. 489; 2 Hilliard on Torts, 147.

Messrs. WORTHINGTON & PAGE, for the appellee:

The ninth of plaintiff's instructions is qualified by the defendants' second. All the law can not be repeated in each instruction.

There is nothing wrong in the sixteenth instruction. It is proper that the jury should find the full sum of damages that the evidence establishes. They have no more right to disregard the evidence, and find a less sum than it establishes, than they have to find a greater sum. City of Ottawa v. Sweely, 65 Ill. 434; City of Chicago v. Jones, 66 Id. 349.

When the premises are out of repair when leased, the landlord, as well as the tenant, is liable, jointly or severally, for damages caused thereby. An unsafe cellar door, forming part of the highway, is a nuisance, and the landlord is liable for a nuisance existing when the property is let. Stephani v. Brown, 40 Ill. 428; Gridley v. City of Bloomington, 68 Id. 47; Rex v. Pedley, 1 A. & E. 825; Owings v. Jones, 9 Md. 108; Anderson v. Dickie, 1 Robt. 238; Davenport v. Ruckman, 37 N. Y. 568; Irvin v. Fowler, 5 Rob. 482; Fisher v. Thirkell, 21 Mich. 1; Vedder v. Vedder, 1 Denio, 257; Rex v. Kerrison, 3 M. & S. 526; Shearman & Redfield on Negligence, secs. 56, 361; Wood on Nuisances, sec. 269, p. 282; Dicey on Parties, 423; Gandy v. Jubber, 33 L. J. 151; Nelson v. Godfrey, 12 Ill. 20; Dillon on Mun. Corp. sec. 660.

Where a party suffers an injury from the concurring negligence of several, he may recover against all or either of them. 4 Wait's Actions and Defences, 710; Barrett v. Third Avenue R. R. Co. 45 N. Y. 628; Lake v. Millikin, 62 Maine, 240; Colegrove v. New York R. R. Co. 20 N. Y. 492; Phelps v. Wait, 30 Id. 78.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was an action to recover for personal injuries, and was brought by Robert Simpson, against the city of Peoria and Magnus Densberger. It is averred in the declaration that defendant Densberger was the owner of the premises situated on Water street, in the city of Peoria, at the place where plaintiff was injured; that there was an opening into the cellar or vault in front of the premises, the covering to which constituted a part of the usual sidewalk; that the owner of the premises wrongfully and negligently permitted such opening to be and remain insufficiently and defectively covered, whereby the sidewalk was left in an unsafe condition; and that at that time, and prior thereto, the city was possessed of and had control of the sidewalk in front of the premises, and ought to have kept the same in good repair and safe condition. It is then further averred as a ground for recovery, that both defendants, well knowing the unsafe and dangerous condition of the sidewalk, wrongfully and negligently suffered the covering to such opening to remain in an insecure and unsafe condition, so that while plaintiff was passing over the sidewalk, in the observance of due care, it broke, and he fell through the opening, into the cellar or vault, and thereby sustained severe injuries, by which he became paralyzed in his back and arm. The declaration contains the usual averments as to the expenditure of large sums of money in the endeavor to be healed and cured. The second count contains an averment the covering to the opening was dangerous at the time the owner let the premises to the occupying tenant, and the condition of the covering at the time rendered the sidewalk dangerous, and that defendants had notice of its dangerous condition. The amended declaration contains an averment the opening was covered with a wooden door, of a height and length prohibited by an ordinance of the city, and that such doors were at the time, and prior thereto had been, a nuisance, and that the city had notice thereof. Separate demurrers filed by each defendant were overruled by the court, and thereupon pleas of not guilty were filed by each defendant. A trial was had before a jury, who returned a verdict finding the issues for plaintiff, and assessing his damages at $6000. Motions for a new trial and in arrest of judgment were severally overruled, and the court entered judgment on the verdict. That judgment was afterwards affirmed in the Appellate Court for the Second District. The case comes to this court on the appeal of the city of Peoria, and since then defendant Densberger has also assigned errors on the same record.

The point is made that no recovery, in any event, could be had against Densberger, because at the time the accident occurred the premises were in the possession of a tenant, with no obligation on the part of the owner to make repairs. The argument proceeds on the theory the owner had reserved no authority, and therefore could not enter to make the needed repairs. The rule of law on this subject, as stated by this court in Gridley v. Bloomington, 68 Ill. 47, is, the occupant, and not the owner, is responsible for injuries occasioned by a failure to keep the premises in repair, unless where the owner has agreed to keep the premises in repair, or where the premises were let with the nuisance upon them. There is some evidence tending to show the owner was requested by the occupying tenant to make repairs, and agreed to do so. But whether that fact could impose any liability on the owner in the absence of an expressed contract to make repairs, need not now be considered. Evidence was given tending to show the premises were let with the nuisance upon them, and the jury may have so found. The authorities generally hold that in such cases the owner, and not the tenant, would be responsible for injuries that might be occasioned by the nuisance. It is for the reason the cause of the injury existed anterior to the letting, and the owner should have made the repairs. Nelson v. Liverpool Brewing Co. 2 C. P. Div. 311.

A question not entirely free from doubt is, can the owner of the premises and the city be held jointly liable for the injuries to plaintiff in the same action. It is said this question can not now be considered, for the reason defendants did not stand by their demurrers, the rule being familiar that a party may not at the same time plead and demur to the same pleading. It is also true any substantial defect in a declaration can always be...