110 Ill. 294 (Ill. 1884), City of Peoria v. Simpson

Citation:110 Ill. 294
Opinion Judge:Mr. SCOTT, JUSTICE.
Party Name:CITY OF PEORIA et al. v. ROBERT SIMPSON
Attorney:Mr. GEORGE A. WILSON, for the city of Peoria. Messrs. JACK & MOORE, for the appellant Densberger. Messrs. WORTHINGTON & PAGE, for the appellee.
Case Date:June 13, 1884
Court:Supreme Court of Illinois
 
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Page 294

110 Ill. 294 (Ill. 1884)

CITY OF PEORIA et al.

v.

ROBERT SIMPSON

Supreme Court of Illinois

June 13, 1884

Page 295

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Page 296

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Page 297

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.

Judgment reversed.

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

Messrs. JACK & MOORE, for the appellant Densberger.

Messrs. WORTHINGTON & PAGE, for the appellee.

OPINION

Page 298

Mr. SCOTT, JUSTICE.

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

Page 299

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 and 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...

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