City of Bloomington v. Osterle

• Decision Date: 02 November 1891
• Citation: 139 Ill. 120,28 N.E. 1068
• Parties: CITY OF BLOOMINGTON v. OSTERLE.
• Court: Illinois Supreme Court

139 Ill. 120

28 N.E. 1068

CITY OF BLOOMINGTON

v.OSTERLE.

Supreme Court of Illinois.

Nov. 2, 1891.

Appeal from appellate court, third district. Affirmed.

Action by Elizabeth Osterle against the city of Bloomington to recover for personal injuries caused by a fall on a defective sidewalk. Plaintiff had judgment for $1,000, which was affirmed by the appellate court. Defendant appeals.

Sain Welty and A. E. De Mange, City

Atty, for appellant.

I. N. Phillips, for appellee.

WILKEN, J.

This is an appeal from the judgment of the appellate court of the third district affirming the judgment of the circuit court of McLean county in favor of appellee against appellant for $1,000 and costs of suit. The action was for a personal injury alleged to have been received by a fall on a defective sidewalk within the corporate limits of the city of Bloomington, which the city authorities had negligently suffered to be and remain out of repair. The case is submitted to us on the same briefs and arguments filed in the appellate court. The principal ground of reversal there urged, the verdict and judgment in the circuit court was not sustained by the evidence, is conclusively settled against appellant by the judgment of affirmance.

The questions of law discussed by counsel for appellant are thus stated by them: ‘It was, under all the circumstances surrounding the case, an injustice to the defendant to permit plaintiff, who was prosecuting as a poor person, to amend her declaration after the trial had commenced, and a large amount of costs had been made, thus making an entirely different cause of action, and, if continued on that account, doubling the costs to the defendant. It was error to permit every witness for plaintiff, including members of her family, to testify to the complaints of plaintiff as to pain, etc., from the day of her fall to the trial. It was error to permit witnesses to testify to the condition of the walk two weeks or more after the accident. The court erred in permitting the plaintiff to be recalled in rebuttal to contradict the testimony of Dr. Haering in his deposition taken by her as to her examination in March, 1888.

The first of these questions does not properly arise on the record. It was not made a ground for new trial in the circuit court, nor was it assigned for error on the record. We think, however, the court properly allowed the amendment under section 24 of our practice act. The defendant was protected against surprise by ...