City of Chicago v. Bork

• Decision Date: 18 April 1907
• Citation: 227 Ill. 60,81 N.E. 27
• Parties: CITY OF CHICAGO v. BORK.
• Court: Illinois Supreme Court

227 Ill. 60

81 N.E. 27

CITY OF CHICAGO

v.BORK.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Appellate Court, First District.

Action by Samuel Bork against the city of Chicago. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank D. Ayers, City Atty. (Edward C. Fitch, of counsel), for appellant.

Chester A. Grover, for appellee.

HAND, J.

This was an action on the case commenced by the appellee in the circuit court of Cook county against the appellant to recover damages for a personal injury alleged to have been caused by the negligence of the appellant in suffering one of its public streets to be out of repair and in an unsafe condition, in consequence of which a wagon loaded with lumber, upon which lumber appellee was riding, tipped over, and he fell to the ground beneath the lumber and was severely and permanently injured. The jury returned a verdict in favor of the appellee for the sum of $6,000, upon which the court, after overruling a motion for a new trial, rendered judgment, and, the appellant having prosecuted an appeal to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, a further appeal has been prosecuted to this court. At the close of all the evidence the appellant moved the court to instruct the jury to return a verdict in its favor, and the action of the court in denying that motion has been assigned as error.

It appears from the evidence that the appellee was riding upon Marianna street, in the city of Chicago, upon a two-horse wagon loaded with lumber, and that the team attached to the wagon belonged to and was being driven by one Christiansen. Marianna street is an east and west street, and crosses Western avenue, a north and south street, at right angles. Western avenue was paved. Marianna street was not paved, but had sidewalks at the point of the injury upon both sides of the street, some two feet higher than the roadway of the street, and which were at the same grade as the sidewalks upon Western avenue and Artesian avenue, another paved street which was parallel to and situated one block west of Western avenue and upon which the appellee lived. At the north side of Marianna street, immediately west of its intersection with Western avenue and adjoining the sidewalk, there was an embankment of about the height of the sidewalk and the width of a wagon, which sloped south. A catch-basin was located in the street just south of said embankment and a few feet west of Western avenue. Near the catch-basin there was a hole worn in the street, and the center of the driveway in Marianna street sloped from Western avenue quite abruptly to the level of the roadbed in the street. The wagon upon which appellee was riding was loaded with lumber, which extended as far forward upon the wagon as it could without interfering with the horses and projected beyond the rear of the wagon several feet, and was piled up two feet or more above the top of the box of the wagon and was chained to the wagon. The lumber had shifted somewhat from the position in which it had been piled, and, as the wagon was driven down the slope from Western avenue into Marianna street, it tipped over towards the south. Christiansen, who sat upon the top of the front part of the load, facing the horses, as the wagon went over jumped to the ground, and was not injured. The appellee sat upon the top of the lumber facing south. He also jumped from the wagon, but was caught beneath the falling lumber and was injured. The wagon was being driven in a public street at the time it was thrown over. The street was slanting and out of repair,...