Mooney v. City of Chicago

• Decision Date: 23 April 1909
• Citation: 88 N.E. 194,239 Ill. 414
• Parties: MOONEY v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

239 Ill. 414

88 N.E. 194

MOONEY

v.CITY OF CHICAGO.

Supreme Court of Illinois.

April 23, 1909.

Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; A. H. Chetlain, Judge.

Action by Vincent C. Mooney, administrator of the estate of Edward Dillon, deceased, against the City of Chicago. From a judgment for plaintiff, defendant appealed to the Appellate Court, where the judgment was affirmed, and an appeal taken to the Supreme Court. Reversed and remanded to the superior court.

Edward J. Brundage, Corp. Counsel, and John R. Caverly, City Atty.

(Edward C. Fitch, of counsel), for appellant.

Frank V. Campe (A. L. Gettys, of counsel), for appellee.

Clarence A. Knight and William G. Adams, amici curiae.

CARTWRIGHT, C. J.

Appellee, who sued as administrator of the estate of Edward Dillon, deceased, recovered a judgment in the superior court of Cook county against appellant for $3,500 damages for causing the death of said Edward Dillon, and the Branch Appellate Court for the First District affirmed the judgment.

The declaration in two counts charged the defendant with negligence in permitting Harrison street, at the intersection of Clark street, in the city of Chicago, to remain in a dangerous and unsafe condition by allowing several of the paving stones to be removed and remain absent and missing from the street, and allowing a large and deep hole and depression to exist in said street at said place. It was alleged that, while Edward Dillon was driving a team of horses attached to a wagon loaded with barrels, a wheel of the wagon ran into the hole and depression, by means whereof the wagon was broken, and he was thrown upon the pavement and received injuries which resulted in his death. The plea was the general issue. The declaration was amended on the trial by changing the name of the deceased to William Edward Dillon.

It is contended that the trial court erred in permitting a medical expert to give an opinion as to the cause of Dillon's death without having all the facts on which the opinion was based before the jury, and permitting another medical expert to answer a hypothetical question which did not embrace all the undisputed facts, and also erred in refusingto instruct the jury to find the defendant not guilty. To determine these questions would require a reading and review of evidence, and in presenting the questions counsel refer to the abstract made and filed by them. Upon looking into the abstract, it is found to contain 95 pages of testimony, intermingled with lengthy arguments of counsel made to the trial court, covering pages in places; and the testimony is, substantially all of it, printed in full, by question and answer, in plain violation of rule 14 of this court (85 N. E. vii), which requires the testimony to be condensed in narrative form, so as to clearly and concisely present its substance. Where a question is objected to, it is proper to print the question and the objection; and, if the court assigns a reason for the ruling, it may be shown, but no necessity whatever existed for printing the evidence, as was done in this case, or the arguments of counsel and the discussions between court and counsel. We will not assume the burden of reading an abstract prepared and printed in disregard of the rule, which would be equivalent to reading the original record, and no attention will be given to the points mentioned.

The remaining question raised in argument, and which does not require a reading of the evidence, is whether the trial court erred in giving to the jury improper instructions at the instance of the plaintiff. Counsel for appellant, in stating the leading facts which the evidence proved, or tended to prove, under rule 15 (85 N. E. vii), say that on May 5, 1903, Dillon was driving a heavy wagon, 40 feet long, fitted with a rack, upon which there was a load of empty barrels; that the iron skein of the axle on which the right-hind wheel turned was worn through; that the said axle broke and tipped the wagon, and Dillon was thrown to the pavement, breaking the fibula of his right leg, so that one end of the bone protruded through the skin; that he was taken to the Cook County Hospital, and the fracture did not unite, and he died on May 23, 1903; that on a post mortem it was found that the fracture had not united, and he had a fatty heart and liver and an enlarged spleen and enlarged and fatty kidneys; that the coroner's inquest resulted in a verdict that Dillon died of fatty degeneration of the kidneys, complicated by a compound fracture of the right leg, and there was evidence to the same effect on the trial; that Dillon was in the employ of James McKay; that after the accident he executed an instrument of release, in satisfaction for the damages resulting from the accident, acknowledging full satisfaction of any and all claims against McKay on account of the injuries sustained; and that McKay made the payments, specified in the release, to Dillon in his lifetime, and the balance to his widow. Counsel for appellee in their brief do not point out any inaccuracy in this statement so far as the evidence was concerned, and under the rule the statement will be taken as accurate and sufficient to present the question raised on the instructions.

Instruction No. 6, given at the instance of the plaintiff, explained to the jury the rule of law that actual notice of a defective condition of the street was not necessary if such condition had existed for so long a time that the city authorities, by the use of ordinary care, would have known of such condition in time to have repaired the same before the accident, in the exercise of ordinary care, and that in such a case notice of such condition might be presumed. The instruction then proceeded to state a hypothesis of fact which would require a verdict for the plaintiff, and concluded with a direction to the jury to find the defendant guilty if such facts existed. The hypothesis included only the following facts: First, that the street was out of repair, and in an unsafe condition to travel upon, and had been in such condition for such a length of time that the city authorities, by the use of ordinary care, might have known of the condition in time to have repaired it before the injury, and did not repair it, which was an application of the rule stated as to notice; second, that while the deceased was driving over the streets, one of the wheels of the wagon which he was on fell into a hole in the street, and he was thereby injured; third, that...