City of Chicago v. Keefe
| Decision Date | 22 September 1885 |
| Citation | 114 Ill. 222,55 Am.Rep. 860,2 N.E. 267 |
| Court | Illinois Supreme Court |
| Parties | CITY OF CHICAGOv.KEEFE, Adm'r. |
OPINION TEXT STARTS HERE
Appeal from First district.
Clarence A. Knight, for appellant.
M. Robinson and A. W. Green, for appellee.SCHOLFIELD, C. J.
Appellant asked the court to instruct the jury as follows: The jury are instructed that the sidewalks of the city are not made for the purpose of a play-ground for children, nor as a mere place for the recreation of children, and that the condition of the sidewalk is only to be considered with reference to its use for the ordinary travel along the same. The jury are instructed that if they believe, from the evidence in this case, that the deceased, Michael Keefe, was at the time in question playing upon the sidewalks, by rolling a hoop along the same, then you are instructed that if you believe from the evidence that he would not have fallen, or have been injured, if he had gone along the sidewalk in the ordinary mode, then you must find for the city, as the sidewalks are not made for the purpose of a play-ground for children. But the court refused to give the instructions, and this ruling presents the first and principal question discussed in the arguments before us.
Counsel for appellant cite and rely upon Stinson v. Gardiner, 42 Me. 248, and Blodgett v. Boston, 8 Allen, 237, in support of the instructions. Those decisions are based upon the principle announced in Blodgett v. Boston, that the liability of towns and cities for injuries to persons or property occasioned by defects in highways is intended to be commensurate only with the duty imposed on them; that is, to keep them in repair, ‘so that they may be safe and convenient for travelers at all seasons of the year.’ In the view of the New England courts there is no implied liability for injuries resulting from defective streets or sidewalks; the liability is wholly statutory. And, as observed by Dillon in his work on Municipal Corporations, § 786, ‘An important consequence is that every case of this character must be within the statute.’ See, also, notes on page 749, first edition. On the contrary, we hold, on principles of common law, that an action for damages resulting from negligence will lie against a municipal corporation if the duty to make repairs is fully declared, and adequate means are put within the power of the corporation to perform the duty. Browning v. City of Springfield, 17 Ill. 143; Scammon v. City of Chicago, 25 Ill. 424; Chayburgh v. Same, Id. 535; City of Bloomington v. Bay, 42 Ill. 503.
It is not attempted to be controverted in this case that the city of Chicago owes the duty to keep its streets, sidewalks, etc., in repair; and that this is the fact will be seen by reference to the various provisions of the general law in relation to the incorporation of cities, villages, etc., under which the city of Chicago is incorporated, applicable to this subject. Chapter 11, Rev. St. 1874. Nor is it denied that the city had adequate means within its power for that purpose. There is no limitation in the statute that the streets shall be kept in repair ‘for travelers.’ They are to be kept in repair as streets, and, by necessary implication, for all the purposes to which streets may be lawfully devoted. We assume as self-evident that, with us, streets are open to the use of the entire public as highways without regard to what may be the lawful motives and objects of those traversing them; that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not infringe upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition with those who are passing along them as travelers, or in the pursuit of their daily avocations. See Donoho v. Vulcan Iron Works, 7 Mo. App. 447, and sometimes even for the promotion of health, may be regarded as a public necessity. On like principle, why may they not be used by children in play and amusement so long as the rights of others being on or passing along the street shall not be prejudiced thereby? We can perceive no reason. Such use is certainly the universal custom, and the lawfulness of rolling hoops along streets, when not prohibited by ordinance, is impliedly conceded by the ninety-second subdivision of article 5, c. 11, supra, which empowers the common council to prohibit or regulate it by ordinance. The right to regulate necessarily assumes the lawfulness of that which is to be regulatedwithout regulation until it shall be prescribed, and in conformity with the regulation after it shall be prescribed. Since, then, there is not here shown to have been any ordinance either prohibiting or regulating the rolling of hoops, it is to be assumed that this child was, at te time he was injured, lawfully passing along th esidewalk; that the fact that he was rolling a hoop, while pertinent on the question of whether he was guilty of contributive negligence, did not, per se, deprive him of any right in respect of passage along the sidewalk which he would otherwise have had, and that the duty of the city towards him was precisely the same that it was towards a child of the same age and mental capacity exercising the same degree of care passing along the sidewalk without a hoop. Indeed, the rule seems to be that although a party may be doing an unlawful act at the time he is injured through the negligence of another, this will not prevent a recovery unless the act is of such a character as would naturally tend to produce the injury. Sutton v. Town ofWauwatosa, 29 Wis. 22; Whart. Neg. (2d Ed.) § 995.
Whether this child was guilty of contributive negligence was a question of fact to be determined by the jury from all the evidence in the case, and not a question of law to be determined by the court from the circumstance that he was rolling a hoop. The law neither infers negligence nor its absence because he was rolling a hoop, since, as a matter of fact, he may have rolled a hoop along the sidewalk and yet have observed the highest degree of care in passing along; i. e., it is not impossible that he may have done so. Just as, at another time, he may have been passing along the sidewalk in a grossly negligent manner without a hoop and on a business errand. The question of law is, simply, what is the degree of care he should have observed to entitle his administrator to recover? Whether, his conduct all considered, he observed that degree of care was the question of fact.
These instructions as framed were argumentative of fact and law, rather than declarative of a simple rule of law, as instructions to the jury should be; and, in our opinion, their tendency was to mislead the jury, and they were therefore properly refused.
Objection is urged that the instruction given at the instance of appellee limits the degree of care to have been observed by the intestate to such as ‘from his age and intelligence, under the circumstances in evidence, was required.’ The plraseology employed is not free of objection, but we do not think the instruction calculated to mislead. Counsel say it should have been limited to ‘such care as might be expected from a person of his age...
To continue reading
Request your trial