City of Chicago v. Babcock

• Court: Supreme Court of Illinois
• Citation: 143 Ill. 358,32 N.E. 271
• Parties: CITY OF CHICAGO v. BABCOCK.
• Decision Date: 31 October 1892

143 Ill. 358

32 N.E. 271

CITY OF CHICAGO

v.BABCOCK.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from appellate court, first district.

Action on the case by Emma Babcock against the city of Chicago. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.Jacob J. Kern

and E. S. Bottum, for appellant.

Walker & Lowden, for appellee.

BAKER, J.

In this action on the case to recover damages for personal injuries, the appellee, Emma Babcock, recovered judgment in the circuit court of Cook county for $1,500, and the judgment was affirmed in the appellate court. 41 Ill. App. 238. In September, 1887, there was a restaurant at No. 33 West Adams street, in the city of Chicago, and several steps led from the restaurant down to the sidewalk and street, and to the left of the steps, as one came out from the restaurant, was an opening leading into the basement, and extending out into the sidewalk and street a distance of three feet to a point beyond the lowest of these steps. The only protection from this opening was a trapdoor fastened upon hinges, and the opening and trapdoor had been there for some three years prior to the accident. An ordinance of the city provides that entrances to areas and basements shall not extend into the sidewalk more than two feet next to the building. The trapdoor in question was left open a considerable portion of the time, and was open at the time of the accident. On the morning of the 6th day of said month of September, appellee, who had never been at said restaurant before that time, went there for the purpose of getting her breakfast. In coming out, with a large bundle on her left arm, she walked down the steps, and, in turning east to go to the place where she was employed as a cloak finisher, stepped with her left foot into the opening, and fell into the basement below, and received the injuries for which the suit was brought.

No claim is made that it was not negligence on the part of the city to permit the opening in the sidewalk and to permit the trapdoor to be left open, but it is urged that there was no right of recovery, because appellee was not exercising ordinary care, and that it was therefore error for the trial court to refuse to instruct the jury to find the defendant not guilty. A person passing along a sidewalk in a city is required to use ordinary and reasonable care and diligence to avoid danger, but what is such ordinary and reasonable care depends upon the circumstances of each particular case, and is a question of fact for the jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his or her eyes constantly fixed on the sidewalk, in a search for possible holes or other defects, would be to establish a manifestly unreasonable and wholly impracticable rule. We deem it unnecessary to state the evidence in detail, but we may say that we have examined it all, and that the testimony of appellee herself and that of John H. Murray and Richard T. Cody tend strongly to prove that appellee at the time that she met with her misfortune was in the exercise of due and ordinary care. In at least three of the instructions that were given by the court the jury were pointedly told that they should find the defendant not guilty if they believed from the evidence that the plaintiff failed to exercise ordinary care and caution, and the verdict indicates that in their opinion there was no want of the required degree of care and caution on her part. There was clearly no error in refusing to direct the jury to find for appellant.

It appears from the evidence that appellee brought two suits to recover damages for the injuries that she had received,-one the suit at bar against the appellant city, and the other a suit against Guiseppe Le Cardi, owner of the building and premises connected with which were the opening and trapdoor above mentioned, and Ellen Gaynor, tenant of the entire building; that afterwards Le Cardi paid to the attorneys of appellee the sum of $150, and that the larger portion of this was applied by said attorneys in paying the costs of the last-mentioned suit, and other expenses and charges, and some $30 or $40 hended to and received by appellee; that at the time of the payment of the $150 a writing was executed and delivered to the agent of Le Cardi, which read as follows: ‘State of Illinois, county of Cook. It is hereby agreed that no action shall be begun against Joseph Le Cardi by reason of any matters existing at this date, by the undersigned. Given for good consideration. EMMA BABCOCK. BY PEASE & WILLIAMS, Attorneys for Plaintiff. Chicago, March 11, 1889;’ and that afterwards an order was entered in the suit of Babcock v. Le Cardi and Gaynor, showing that, on motion of the plaintiff, by her attorney, the suit was dismissed out of court at the cost of the plaintiff.

It is urged by appellant that the dealings of appellee and her attorneys with Le Cardi, one of the joint tort feasors amounted to an accord and satisfaction, and were not only a bar to an action against Le Cardi, but also, by operation of law, worked a release of the city from all liability. It appears from the evidence that the transactions with Le Cardi and the payment of the $150 were after this suit was brought and after plea and issue joined thereon, and a claim is therefore made by appellee that, since appellant did not file a proper plea puis darrein continuance, it cannot avail itself of the alleged settlement. It is undoubtedly the general rule of the common law that a matter of defense which arises after the commencement of the suit and before plea must be pleaded to the further maintenance of the action, and that a matter of defense which arises after suit brought, and also...