City of East Dubuque v. Burhyte

• Decision Date: 18 June 1898
• Citation: 173 Ill. 553,50 N.E. 1077
• Parties: CITY OF EAST DUBUQUE v. BURHYTE.
• Court: Illinois Supreme Court

173 Ill. 553

50 N.E. 1077

CITY OF EAST DUBUQUE

v.BURHYTE.

Supreme Court of Illinois.

June 18, 1898.

Appeal from appellate court, Second district.

Action by Ruhama E. Burhyte against the city of East Dubuque. There was a judgment for plaintiff, which was affirmed by the appellate court (74 Ill. App. 99), and defendant appeals. Affirmed.D., T. J., and J. M. Sheean, for appellant.

William Spensley and Duffy & Maguire, for appellee.

CRAIG, J.

This was an action brought by appellee against the city of East Dubuque to recover for an injury received while passing along Fifth avenue, in that city, caused, as alleged, by the breaking of a board in a defective sidewalk. On a trial before a jury the plaintiff recovered a verdict and judgment for $2,000, which, on appeal, was affirmed in the appellate court. It is contended in the argument that ‘notice to the city, express or implied, of the condition of the walk is not averred in any count of the declaration, and proof only of the defective construction of the walk should have gone to the jury under the declaration, and the motion to arrest the judgment should have been sustained because of the variance between the allegations and the proof.’ If there was a variance between the proof and declaration, in order to avail thereof, when the evidence was offered the appellant should have objected to its introduction on the ground of variance, so that the plaintiff might remove the objection by an amendment to the declaration. But no objection whatever was made to the evidence introduced by the plaintiff to show that the sidewalk, at the time of the accident and prior to that time, wad defective and dangerous. The objection to the evidence was, therefore, waived, and cannot be relied upon here. The first and second counts of the declaration may be defective in failing to aver notice to the city of the defective and dangerous condition of the walk, but no demurrer was interposed to the declaration, and after verdict we regard the declaration good. 1 Chit. Pl. 673; Cribben v. Callaghan, 156 Ill. 549, 41 N. E. 178;Gerke v. Fancher, 158 Ill. 375, 41 N. E. 982; Railroad Co. v. Then, 159 Ill. 535, 42 N. E. 971;Stone Co. v. Whalen, 151 Ill. 472, 38 N. E. 241.

It is next claimed that the court erred in permitting the jury to take with them to the jury room the declaration in the case. Section 55 of the practice act provides that ‘papers read in evidence, other than depositions, may be carried from the bar by the jury,’ but the statute is silent in regard to the jury taking the pleadings into the jury room. It is, however, laid down in Thomp. Trials, §§ 2581, 2582, and cases cited, that it is the general practice to allow the jury to take the pleadings on their retirement, when it is requested by either party; and, as a practice of that character can work no injury to either party, we see no well-founded objection to it. We do not, therefore, regard the action of the court in allowing the jury to take the declaration to the jury room erroneous.

On the trial the plaintiff called as a witness Timothy Mahoney, the street commissioner, and interrogated him in regard to the time and manner of the original constructionof the sidewalk. The defendant then asked the witness how often since the building of the walk he had inspected it. Plaintiff objected to the question, and the court sustained the objection. The evidence attempted to be called out was not strictly cross-examination, and under the wellknown rule that a cross-examination must be confined to the subject-matter of the examination in chief the court did not err in sustaining the objection to that question. Moreover, it appears that the witness was afterwards called by defendant, and testified fully in regard to the inspection of the walk, and its condition after its construction. If, therefore, the court erred in its ruling, the error was harmless, as the defendant in the end obtained the evidence.

Michael Groff testified, on behalf of the plaintiff, that he put down the walk 14 years ago; that the lumber used was ‘grub plank got out of rafts, and...