City of Chicago v. Watson
| Decision Date | 31 March 1880 |
| Citation | 6 Ill.App. 344,6 Bradw. 344 |
| Parties | CITY OF CHICAGOv.SENIOR L. WATSON. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding. Opinion filed May 25, 1880.
This was an action on the case brought by appellee against appellant, to recover damages for personal injury to the former, occasioned by reason of the latter having wrongfully and negligently suffered the sidewalk upon a portion of Third Avenue in the city of Chicago, to be and remain in a bad and unsafe condition, and divers planks wherewith such sidewalk was laid, to be and remain broken and unfastened, by means whereof, etc., the plaintiff then and there passing thereon, tripped, stumbled and fell, etc.
There was a contrariety of evidence as to the condition of such sidewalk at the time; and although the accident occurred in the night time, evidence was given by the defendant tending to show that the place where it was alleged to have happened was lighted by a street lamp.
The court, on behalf of the plaintiff, gave to the jury the following instructions:
“The jury are instructed that the city of Chicago has control of the sidewalks of the city, and it is the duty of the city to keep them in repair; and if the jury believe from the evidence that the sidewalk in front of the premises, number 190 Third Avenue, in said city, was defective, and that such defect had existed before the accident for such a length of time that by the exercise of ordinary care and diligence the city might have discovered and repaired the same, but that it did not do so, then the city would be guilty of negligence, and would be liable for any injury which was the natural and proximate result of such negligence.
If the jury believe from the evidence that at the time of the accident there was a hole in the sidewalk in front of premises number 190 Third Avenue, in the city of Chicago, and that a reasonable time had elapsed during which the city, by the use of due diligence might have learned of such hole and have repaired the same, but that it failed to do so; and if the jury further believe from the evidence that the plaintiff in the evening, after dark, was walking with ordinary care and diligence on said sidewalk, and had no knowledge of the hole being there, and did not see it; and if the jury further believe from the evidence that by reason of such hole the plaintiff sustained injuries, then the city would be liable for such injuries.
If the jury under any one of the previous instructions find the defendant guilty in assessing the plaintiff's damages they may take into consideration as proper elements, the loss of time, expense incurred in being cured, pain and suffering undergone, and permanent injury, if any of these elements the jury believe from the evidence the plaintiff has sustained or undergone.”
To the giving of each and all of which instructions the defendant, by its counsel, then and there excepted.
The jury found the defendant guilty, and assessed plaintiff's damage at one thousand dollars. The court, overruling defendant's motion for a new trial, gave judgment on the verdict, and the defendant brings the case to this court by appeal, and, amongst other things, assigns the giving of said instructions for error.
Mr. B. M. SHAFFNER, for appellee; that the instructions are good, cited Chicago v. McCarthy, 75 Ill. 602; Elgin v. Renwick, 86 Ill. 498.
Where the instructions taken as a whole, state the law accurately, an omission in one that is supplied in another is no error: Van Buskirk v. Day, 32 Ill. 260; Morgan v. Peet, 32 Ill. 281; Yundt v. Hartrunft, 41 Ill. 9; Town of Vinegar Hill v. Busson, 42 Ill. 45; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Stowell v. Beagle, 79 Ill. 525; Durham v. Goodwin, 54 Ill. 469; Lawrence v. Hagerman, 56 Ill. 68; Latham v. Roach, 72 Ill. 179; Nor. Line Packet Co. v. Binninger, 70 Ill. 571; T. W. & W. R'y Co. v. Ingraham, 77 Ill. 309.
A party cannot assign for error that which he himself has asked the court to do: Clemson v. State Bank, 1 Scam. 45.
It is not necessary that each statement of an instruction should be preceded with “if you further believe from the evidence”: T. W. & W. R'y Co. v. Lockhart, 71 Ill. 627; Belden v. Woodmansee, 81 Ill. 25; Gizler v. Witzel, 82 Ill. 322.
Plaintiff need not show affirmatively that he was using ordinary care: Elgin v. Renwick, 86 Ill. 498; Hutchinson v. Collins, 90 Ill. 410.
A new trial will not be granted for newly discovered evidence which is cumulative or impeaching in its nature: Wright v. Gould, 73 Ill. 56; Kendall v. Limberg, 69 Ill. 355; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388.
Mr. C. A. KNIGHT, for appellee; that the first instruction for plaintiff is erroneous, because it leaves out the question of contributory negligence on the part of appellee, cited C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C. & A. R. R. Co. v. Mock, 72 Ill. 141; C. & A. R. R. Co. v. Murray, 62 Ill. 326; C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; Wabash R'y Co. v. Harks, 91 Ill. 408.
Instructions which assume to be complete, must state all the facts which under the law entitle a party to recover: St. L. & S. E. R'y Co. v. Butz, 72 Ill. 256; Evans v. George, 80 Ill. 51; Cushman v. Cogswell, 86 Ill. 62; Ogden v. Kirby, 79 Ill. 556.
It was incumbent upon appellee to show no want of care on his part: C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; President, etc. v. Carter, 2 Bradwell, 35.
If one knowingly exposes himself to danger which can be avoided, he cannot recover for injuries sustained: Bloomington v. Reed, 2 Bradwell, 54; Lovenguth v. Bloomington, 71 Ill. 238; Sinclair v. Berndt, 87 Ill. 176; L. S. & M. S. R. R. Co. v. Berlink, 2 Bradwell, 427.
There was no evidence on which to base a portion of the instruction as to damages: Alexander v. Town of Mt. Sterling, 71 Ill. 366; Herrick v. Gary, 83 Ill. 85; Bradley v. Parks, 83 Ill. 169.
The law does not regard the corporate duties of the city of Chicago as placing the corporation in the position of insurer against accident to individuals upon its streets and sidewalks, or require any absolute degree of perfection in respect thereto. Hence it follows that it is not liable for every defect therein, though such defect may be the cause of the injury sued for. In the absence of any acts of positive misfeasance on the part of the corporation, its officers, servants, or others acting under its authority, within the scope of its powers, it is responsible only for the exercise of reasonable diligence in keeping its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day, by any person in the exercise...
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