City of Bloomington v. Legg

• Decision Date: 16 June 1894
• Citation: 37 N.E. 696,151 Ill. 9
• Parties: CITY OF BLOOMINGTON v. LEGG.
• Court: Illinois Supreme Court

151 Ill. 9

37 N.E. 696

CITY OF BLOOMINGTON

v.LEGG.¹

Supreme Court of Illinois.

June 16, 1894.

Appeal from appellate court, third district.

Action on the case by Silas H. Legg, administrator of Silas M. Legg, deceased, against the city of Bloomington. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.J. P. Lindley, City Atty. (J. H. Rowell, T. C. Kerrick, and Sain Welty, of counsel), for appellant.

James S. Ewing and John T. Lillard, for appellee.

This was an action on the case to recover for the death of Silas M. Legg, son of appellee. The declaration charges that the city of Bloomington erected a fountain on North Main street, to be used for drinking purposes, and for watering horses; that around the fountain was a basin, into which water was conducted by two spouts; that the spouts were placed where the heads and bridles of the horses would come when drinking; that the spouts projected out several inches over the basin, and there bent, forming a hook, so that horses, in drinking (and, after drinking, in lifting their heads), were liable to catch or break their bridles, of which the city had notice. Silas M. Legg, on September 10, 1889, was driving a team of horses on said street, hitched to an oil wagon, on which he was riding, and, while exercising due care and diligence for his own safety, was permitting the horses to drink from the basin of the fountain. The bridle of one of the horses caught upon the curved or bent spout, and was pulled off. The horses ran away, without his fault, threw him off, and the wagon onto him, thereby causing his death. Silas M. Legg left, him surviving, Silas H. Legg, his father, Martha A. Legg, his mother, Edgar Legg and Erwin Legg, his brothers, and Edith Legg, his sister, as next of kin. Pleas by defendant of not guilty. Two counts of the declaration were amended so as to describe the spouts as projecting out straight, instead of curved. A trial by jury resulted in a verdict for plaintiff, and damages assessed at the sum of $1,000, on which judgment was rendered. That judgment was affirmed by the appellate court, and this appeal is prosecuted by the city; it assigningerror in allowing evidence to go to the jury that other accidents had occurred on account of the fountain spouts, and that it was error to allow evidence to show other accidents when the spouts were not in the same condition as at the time of the accident, and that instructions for plaintiff were erroneous.

PHILLIPS, J. (after stating the facts).

The declaration contained several counts, some of which alleged that the spouts of the fountain turned downward, at an angle at the end, while other counts charged the spouts as projecting straight out. Evidence was admitted, over the defendant's objection, that other accidents had occurred, of a similar character to that which resulted in injury to the deceased. Evidence of other accidents occurring from same cause is by many courts held incompetent. This court has held such evidence competent, not for the purpose of showing independent acts of negligence, but as tending to show the common cause of these accidents is a dangerous, unsafe thing. Where an issue is made as to the safety of any machinery or work of man's construction, which is for practical use, the manner in which it has served that purpose, when put to that use, would be a matter material to the issue; and ordinary experience of that practical use, and the effect of such use, bears directly upon such issue. It no more presents a collateral issue than any other evidence that calls for a reply which bears on the main issue. Such evidence is held competent by the weight of authority. Coke Co. v. Graham, 35 Ill. 346;City of Chicago v. Powers, 42 Ill. 170;City of Ft. Wayne v. Coombs, 107 Ind. 75, 7 N. E. 743;City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933;District of Columbia v. Armes, 107 U. S. 519, 2...