City of Chicago v. Jarvis

• Decision Date: 18 April 1907
• Citation: 226 Ill. 614,80 N.E. 1079
• Parties: CITY OF CHICAGO v. JARVIS.
• Court: Illinois Supreme Court

226 Ill. 614

80 N.E. 1079

CITY OF CHICAGO

v.JARVIS.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Appellate Court, First District.

Action by Robert Jarvis against the city of Chicago. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.James Hamilton Lewis, Corp. Counsel, and John B. Caverly (William S. Kies and E. C. Fitch, of counsel), for appellant.

A. W. Schroetter, for appellee.

CARTWRIGHT, J.

On April 9, 1901, appellee, who was walking north on the west side of Clark street, fell at a coal hole in front of No. 168 and his kneecap was broken in two places by the fall. He brought this suit in the circuit court of Cook county to recover damages for his injuries, and upon a trial obtained a verdict for $6,000. He remitted $2,500, and judgment was entered for $3,500, and the judgment has been affirmed by the Branch Appellate Court for the First District.

The refusal of the trial court to direct a verdict of not guilty is assigned as error, which presents the question whether there was evidence from which, if it stood alone, the jury could reasonably have found that the material averments of the declaration had been proved. Libby, McNeill & Libby v. Cook, 222 Ill. 206, 78 N. E. 599. The plaintiff introduced evidence that the sidewalk and coal hole were in the center of the business district of Chicago; that a thousand or more people passed over the place every hour; that the sidewalk was paved with large flagstones and between two of them there was a circular coal hole 18 inches in diameter, one-half of which was cut out of each flagstone; that there was no iron frame or rim for the circular iron cover, but that it was set loosely in a grooved circle cut out of the stone; that the north flagstone had settled away from the south one, so that the iron cover rested on the south stone; that the south flagstone was an inch or more higher than the north one, and, if a person should step on the north side of the cover, it would go down, and the south side tip up; that it had been in that condition for months; that plaintiff was going north on the sidewalk in the usual way, without any knowledge or notice of the condition of the coal hole; and that he stepped on the north side of the cover, causing the south side to tip up, catching the toe of his left foot so that he fell and suffered the injury. This evidence tended to prove the material allegations of the declaration.

But counsel say that the account of his fall given by the plaintiff was inherently improbable and physically impossible, and therefore should not be believed, even if uncontradicted. The argument is based on a supposed matter of common knowledge that ordinary healthy and normal persons, in walking, do not shuffle or drag their feet, but raise them from one to two inches, and therefore, if plaintiff's right foot was on the north side of the coal hole cover, he must have raised the left foot high enough to carry it over the edge that was tipped up; and, further, that the laws of physics teach that the momentum would carry him farther forward than he stated, and that he could not have fallen down upon the coal hole cover itself. There was no evidence whether plaintiff had excessive or deficient action in walking, and there is certainly no rule to which all persons conform. A person does not necessarily fall forward full length, and there was nothing inherently impossible in the plaintiff's account. The evidence tended to prove that the original construction, without an iron rim, was faulty, and also that the coal hole had been in the same condition for such time that defen...