City of Chicago v. Honey

• Decision Date: 31 March 1882
• Citation: 10 Ill.App. 535,10 Bradw. 535
• Parties: CITY OF CHICAGOv.MARY LOUISE HONEY.
• Court: United States Appellate Court of Illinois

10 Ill.App. 535

10 Bradw. 535

CITY OF CHICAGO

v.MARY LOUISE HONEY.

Appellate Court of Illinois, First District.

March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county. Opinion filed March 7, 1882.

Mr. JULIUS S. GRINNELL, for appellant; arguing that the allegation must be broad enough to let in the proof, and that evidence not supported by allegation will not sustain a verdict, cited Hilliard's Remedies for Torts, 242; Stephens on Pleading, 85; Bloomington v. Goodrich, 88 Ill. 558; Gavin v. Chicago, 97 Ill. 66.

Appellant was only bound to use reasonable care and diligence in keeping the sidewalk in a reasonably safe condition: Joliet v. Walker, 7 Bradwell, 270; Chicago v. Watson, 6 Bradwell, 348; Peru v. French, 55 Ill. 317; Chicago v. Bixby, 84 Ill. 85; Chicago v. McGiven, 47 Ill. 347.

There was no evidence that appellee paid anything for medicine and medical care, and the instruction on this point was misleading and erroneous: Chicago v. Watson, 6 Bradwell, 348; Bradley v. Parks, 83 Ill. 169; Herrick v. Gary, 83 Ill. 85; T. W. & W. R'y Co. v. Ingraham, 77 Ill. 309; Freeport v. Isbell, 83 Ill. 440.

The damages were excessive: City of Decatur v. Fisher, 53 Ill. 407; Chicago v. Martin, 49 Ill. 241; C. B. & Q. R. R. Co. v. Hazzard, 26 Ill. 373; Chicago v. Kelly, 69 Ill. 475; C. R. I. & P. R. R. Co. v. McKittrick, 78 Ill. 619; Kolb v. O'Brien, 86 Ill. 210; C. R. I. & P. R. R. Co. v. Payzant, 87 Ill. 125; Chicago West Div. R'y Co. v. Hugh, 87 Ill. 94.

Messrs. STILES & LEWIS, for appellee; as to the duty of a municipality in the care of its sidewalks, cited Chicago v. McGiven, 78 Ill. 347; Chicago v. Bixby, 84 Ill. 82; Chicago v. Fowler, 60 Ill. 322.

That the damages are not excessive: C. R. I. & P. R. R. Co. v. Otto, 52 Ill. 416; P. C. & St. L. R'y Co. v. Thompson, 56 Ill. 138; Ill. Cent. R. R. Co. v. Parks, 88 Ill. 373; Ottawa v. Sweely, 65 Ill. 434; Hayward v. Merrill, 94 Ill. 349; R. R. Co. v. Dryadale, 51 Ga. 644.

MCALLISTER, J.

This action was brought in the court below by appellee, Mary Louise Honey, against appellant, the city of Chicago, to recover damages for personal injury received by plaintiff in consequence of a portion of a sidewalk in one of the streets of said city being in a defective and unsafe condition. There was a trial upon the plea of general issue, resulting in a verdict for plaintiff, and assessing her damages at three thousand dollars. The defendant made a motion for a new trial upon the specific ground, among others, that the damages were excessive; but the court overruled the motion, and gave judgment on the verdict. Upon bill of exceptions being filed, the defendant brings the record to this court for revision, assigning various errors, including that of overruling its motion for new trial, and that the damages were excessive.

After careful examination of the record, and consideration of the points made, we are of opinion that the plaintiff's evidence fairly tended to support her cause of action as set out in the declaration; and no testimony having been offered by defendant, such evidence for plaintiff was sufficient to warrant a verdict in her favor for substantial damages. And that being the case, we are further of the opinion that no error in the instructions to the jury, given on behalf of plaintiff, could be regarded as prejudicial to the defendant, except it related to the question of damages.

The evidence shows that August 18, 1879, the plaintiff went after a physician about midnight, and while passing along the north side of west Monroe street, upon the sidewalk a little west of Center avenue, there being one or two planks gone out of the sidewalk, she fell in the space thus made, whereby both her knees were bruised, and the muscles in her left knee and ankle were quite severely sprained; but she, nevertheless, completed her errand, and endeavored, with much pain and difficulty, to continue with her duties as nurse; and the second week in September, being a teacher, she attempted to assume her duties as such, but her limb became so lame and painful that she was obliged to give it up, and was then confined to her room for three months.

One Plymman Hays was called to treat her as a surgeon the next day after the accident, and continued from time to time, until, as he testified, his charges amounted to about three hundred and thirty dollars. This attendant took her to Dr. Roswell A. Parke, who examined her case, for which he charged fifteen dollars. This was the only medical attendance, and it affirmatively appears that the plaintiff had, at the time of the trial, paid no part of either of said bills. At the request of plaintiff's counsel, the court gave the jury the following instruction:

“The jury are instructed that if they find the defendant guilty, they should assess the plaintiff's damages at such sum as they shall believe, from the evidence, will be fair compensation for the injuries sustained by her, by reason of the alleged accident, for the pain and suffering resulting therefrom, and for moneys necessarily expended by her for medicines, medical attendance, and nursing, if any, in and about being cured of her said injuries.”

This instruction, the city attorney insists, is erroneous; not on the ground that it improperly assumes that the plaintiff had expended moneys for medical attendance and nursing, as was the case in White v. Murtland, 71 Ill. 268; but because it submits to the jury to find the fact that she had expended money for medical attendance and nursing, when there was no evidence in the case tending to prove such facts.

It has been so often and so emphatically decided in this State that it is error to submit a material fact to the consideration of the jury, when there is no evidence in support of such fact, that it would seem like an implied reproach to the intelligence of the bar, to take the trouble of sustaining the assertion by citing the cases, and we shall not do so.

The expression in the instruction, “moneys necessarily expended by her for medicines, medical attendance and nursing,” if taken in its ordinary, usual sense, would imply and mean moneys actually paid out for those objects. Being so taken, there was no evidence tending to support the fact thus submitted. There was not only no evidence that she had so expended or paid out any money, except a trifling sum for medicines, but there was affirmative evidence that she had paid none for medical attendance or nursing. None having been actually paid by her, was there evidence in support of what has sometimes been regarded as an equivalent for such payment? In Dixon v. Bell, 1 Starkie's R. 287, which was an action by plaintiff to recover for personal injuries to his infant son, Lord Ellenborough, in advising the jury as to the measure of damages which they were to give, in case they deemed the plaintiff entitled to a verdict, “informed them that with respect to two items which it had appeared in evidence were due as fees to a physician and surgeon, who had attended plaintiff's son (but who had not yet been paid), that as to the surgeon's bill, they were to consider the amount as paid by the plaintiff, since the surgeon could compel the...