City of Aurora v. Brown

• Decision Date: 31 December 1882
• Citation: 12 Bradw. 122,12 Ill.App. 122
• Parties: CITY OF AURORAv.EUGENE L. BROWN.
• Court: United States Appellate Court of Illinois

12 Ill.App. 122

12 Bradw. 122

CITY OF AURORA

v.EUGENE L. BROWN.

Appellate Court of Illinois, Second District.

December Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. C. W. UPTON, Judge, presiding. Opinion filed February 9, 1883.

Mr. R. G. MONTONY and Mr. D. M. CLAPSADDLE, for appellant; that the plaintiff to recover must prove either that the defendant was guilty of negligence and he was free from all contributory negligence, or that his negligence was only slight and that of defendant gross, cited C. & N. W. R'y Co. v. Coss, 73 Ill. 394; City of Winchester v. Case, 5 Bradwell, 486; East St. L. Packing Co. v. Hightower, 92 Ill. 139; The President v. Carter, 2 Bradwell, 34; C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; Wabash R'y Co. v. Jones, 5 Bradwell, 607.

The duty of a city is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution in using them: City of Chicago v. McGiven, 78 Ill. 347.

A person is guilty of contributory negligence who goes into known danger or danger he might have discovered by the exercise of ordinary care: C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255; C. & N. W. R. R. Co. v. Coss, 73 Ill. 394; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; Lovenguth v. City of Bloomington, 71 Ill. 238; City of Centralia v. Krouse, 64 Ill. 19; City of Quincy v. Barker, 81 Ill. 300; The President v. Carter, 2 Bradwell, 34; C. B. & Q. R. R. Co. v. Colwell, 3 Bradwell, 545; City of El Paso v. Causey, 1 Bradwell, 531; C. B. & Q. R. R. Co. v. Sykes, 1 Bradwell, 521; L. S. & M. S. R. R. Co. v. Clemens, 5 Bradwell, 177; City of Macomb v. Smithers, 6 Bradwell, 470; City of Aurora v. Pulfer, 56 Ill. 270.

The evidence of other accidents of a similar character is only allowed when it is necessary to show what called the attention of witness to the defect, or in rebuttal of defendant's general care: Tomlinson v. Town of Derby, 43 Conn. 562.

Such evidence, if admitted, would present a collateral issue: Jacques v. Bridgeport R. R. Co. 41 Conn. 64; Bailey v. Trumbull, 31 Conn. 581; Collins v. Dorchester, 6 Cushing, 396; Hubbard v. Concord, 35 N. H. 52; Sherman v. Koolright, 52 Barb. 268; Maguire v. Middletown R. R. Co. 115 Mass. 239; Brown v. Cummings, 7 Allen, 507; Ellis v. Short, 21 Pick. 142; Farnman v. Farnman, 13 Gray, 508; 1 Greenleaf on Evidence, 449; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; Warner v. N. Y. C. R. R. Co. 44 N. Y. 471; Abbott's Trial Evidence, 584; Aldrich v. Pelham, 1 Gray, 510; Melody v. The People, 8 Bradwell, 485; Demerer v. Parsons, 8 Bradwell, 625; Maillerd v. Express Propeller Line, 61 N. Y. 312; Cole v. Corn, 5 Grat. 696; 1 Greenleaf Ev. § 52; 1 Wharton Ev. § 29; Reynolds' Stephen on Ev. Chap. 3, p. 18.

A witness can not be asked if, in his judgment, a sidewalk is a dangerous one, but must state its condition and surroundings and leave the jury to judge of its dangerous character: City of Chicago v. McGiven, 78 Ill. 347.

Each instruction must be in itself correct in this class of cases: Village of Warren v. Wright, 3 Bradwell, 602; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550; Ill. C. R. R. Co. v. Maffit, 67 Ill. 431; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; Quinn v. Donovan, 85 Ill. 194; Ill. Linen Co. v. Hough, 91 Ill. 63; Joliet v. Walker, 7 Bradwell, 267.

Opinions of witnesses should not be received as evidence, where all the facts upon which the opinions are based, can be ascertained and made intelligible to the jury: Clark v. Fisher, 1 Paige, 174; Mayor, etc. of N. Y. v. Rentz, 24 Wend. 668; Lin v. Sigsbee, 67 Ill. 75; C. & A. R. R. Co. v. Springfield & N. W. R. R. Co. 67 Ill. 143; City of Rockford v. Hildebrand, 61 Ill. 159; City of Chicago v. Bixby, 84 Ill. 84; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; Warner v. N. Y. Cent. R. R. Co. 44 N. Y. 465.

A person passing over a sidewalk is bound to act with reasonable prudence in the light of known facts: Kewanee v. Depew, 80 Ill. 119; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; Quincy v. Barker, 81 Ill. 300; Stratton v. C. C. H. R'y Co. 95 Ill. 25; The President, etc. v. Carter, 6 Bradwell, 421; Fulsom v. Town of Underhill, 36 Vt. 591.

Mr. CHARLES WHEATON, Mr. A. J. HOPKINS and Mr. N. J. ALDRICH, for appellee; that if the sidewalk was dangerous and plaintiff was using ordinary care in passing over it, and was injured, defendant is liable, cited City of Peru v. French, 55 Ill. 317; City of Centralia v. Scott, 59 Ill. 129; City of Sterling v. Thomas, 60 Ill. 264; City of Bloomington v. Bay, 42 Ill. 503; City of Champaign v. Patterson, 50 Ill. 61; City of Aurora v. Dale, 90 Ill. 46; City of Aurora v. Hillman, 90 Ill. 61.

The construction of a dangerous sidewalk on a great thoroughfare is gross negligence: City of Chicago v. Langlass, 66 Ill. 361.

If a person know of defects in a sidewalk he must observe diligence in passing over it, but it is not held that he must take some other walk: El Paso v. Consey, 1 Bradwell, 531; President v. Carter, 2 Bradwell, 34; City of Macomb v. Smithers, 6 Bradwell, 470; City of Quincy v. Barker, 81 Ill. 300; Lovenguth v. City of Bloomington, 71 Ill. 238.

Judgment will not be reversed because some one of the instructions fails to state the law applicable to the facts with sufficient qualification, provided other instructions cure the defect: State v. Maloy, 44 Ia. 104; Kendall v. Brown, 86 Ill. 387; Skiles v. Caruthers, 88 Ill. 458; Edwards v. Cary, 60 Mo. 572; Toledo, W. & W. R. W. Co. v. Ingraham, 77 Ill. 309; People v. Cleveland, 49 Cal. 578.

The evidence of other accidents of a similar character is competent to prove defendant had notice, was negligent, and that the sidewalk was dangerous: Mobile, etc. R. R. Co. v. Ashcraft, 48 Ala. (N. S.) 15-305; House v. Metcalf, 27 Conn. 631; Hill v. Portland, etc. R. R. Co. 55 Maine, 430; Darling v. Westmoreland, 52 N. H. 401; Tomlinson v. Town of Derby, 43 Conn. 561; Fillo v. Jones, 2 Abb. (Ct. App.) N. Y. 121; Abbott's Trial Evidence, 585; Sheldon v. R. R. Co. 14 N. Y. 221; Hinds v. Barton, 29 N. Y. 544; Field v. N. Y. Cent. R. R. Co. 32 N. Y. 339; Webb v. R. W. & O. R. R. Co. 49 N. Y. 424; Hoyt v. Jeffers, 30 Mich. 181; Smith v. O. C. & N. R. R. Co. 10 R. I. 22; Grand Trunk R. R. Co. v. Richardson, 91 U. S. (1 Otto) 454.

LACEY, J.

This was an action on the case by appellee against appellant for failure on its part, as was claimed, to keep a certain sidewalk on Fox street, in East Aurora, in good and safe condition, and suffering it to be and remain in bad condition and dangerous to passers over it, by means whereof the appellee, while passing along and upon the sidewalk, necessarily slipped and fell upon the walk and the left leg and knee of appellee was injured, the knee cap fractured and broken, and the bones of the left leg broken, for which he claimed damages in the sum of $10,000. The suit was commenced Sept. 10, 1879, and the injury was received Aug. 3, 1878, and trial before the court and a jury and verdict was given for appellee for $6,000 damages, and on Oct. 17, 1882, motion for a new trial was overruled and judgment rendered on the verdict. The cause is appealed to this court by appellant, relying mainly upon the ground for reversal that the verdict was manifestly against the weight of the evidence, and that the court wrongfully admitted certain evidence on the part of appellee. The particular sidewalk in question was on the south side of Fox street and laid between LaSalle street and the railroad track, which ran through the block half-way between LaSalle street and Broadway, and was west of LaSalle street and east of the railroad. The walk was a stone walk constructed of flag-stone some four by six feet each, and the walk was six feet wide and forty-four feet and eleven inches in length.

There was a descent from, or fall from, the east to the west end of this piece of sidewalk in this distance of four feet nine inches, and the outer edge of the walk was five and a half inches lower than the inner edge. The flag-stones were originally cut rough, but by constant use for about eleven years had become smooth, more especially in the center. There is a railing on the north side of this walk next to the street made of two by four inch scantling set on about five posts and about three feet high, made for the purpose of enabling people passing along the walk to protect themselves from falling or to assist in passing up and down the walk; on the south side of this walk is a wall which at the east end is two feet four inches high and at the west end or foot of the walk is six feet nine inches high, the descent being the difference between the two heights. It appears from the evidence that on the day of the injury, which took place about one o'clock P. M., the appellee had been to the court house attending a lawsuit which he had in progress, concerning some property of his, and on going home he passed along Fox street. He was going west with his brother and nephew; they were walking side by side busily talking about their business as they passed down the walk, the appellee being on the outside next to the rail. He and his brother were interested in the suit and it was not finished. They were talking about the suit, but could not say for certain.

As they went down the walk, as appellee testifies, he placed his hand on the rail and had hold of it as he went along down and was walking in that way when his right foot went out from under him and threw him forward on his left knee; the motion of his body, his weight and the decline made him fall with a good deal of force, and he was dazed for a moment; he was protecting himself by taking hold of the rail. At the time of the injury he had gone half-way down the walk, perhaps a little more, when he slipped.

In the fall he broke the cap of his knee in four places and the tibia bone in his left leg was broken. From this wound he suffered great pain and was confined to his bed for many months, and was...