City of Gibson v. Murray

• Decision Date: 24 October 1905
• Citation: 75 N.E. 319,216 Ill. 589
• Parties: CITY OF GIBSON v. MURRAY.
• Court: Illinois Supreme Court

216 Ill. 589

75 N.E. 319

CITY OF GIBSON

v.MURRAY.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, Third District.

Action by Belle Murray against the city of Gibson. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Cloud & Thompson, for appellant.

L. A. Cranston and A. L. Phillips, for appellee.

This is a suit brought by the appellee against the appellant city on November 21, 1903, in the circuit court of Ford county, to recover damages for personal injuries sustained by appellee through a fall on March 28, 1903, upon a sidewalk in said city. The trial below resulted in verdict and judgment in favor of appellee. An appeal was taken to the Appellate Court, where the judgment has been affirmed. The facts are substantially as follows: The walk in question was on the east side of Union street, in said city, and on the north side of South Second street at the intersection of the two streets. Union street runs north and south, and South Second street, which crosses it, runs east and west. The walk was a section of sidewalk about 16 feet long and 4 feet wide, with three stringers running lengthwise, one at each side and one in the middle. It crossed a ditch, which ran east and west along the north side of South Second street. This ditch was 5 or 6 feet wide and from 18 inches to 2 1/2 feet deep from its bottom to the top of the walk. When the accident occurred several of the planks, which had lain crosswise upon the stringers, had become loosened therefrom, and lay lengthwise of the walk across the opening therein. The space covered by these loose planks was from 3 to 4 feet wide. On March 28, 1903, when the accident occurred, there were two boards lying lengthwise of the walk near the center of the hole under the walk, which was about 3 feet in length from walk, to south. These boards were from 6 to 8 inches in width, and appeared to be about 4 feet long. Before March 28, 1903, the two boards in question were lying crosswise of the hole, about the center of it; that is, across the stringers in the same direction as the other boards of the walk. But on March 28, 1903, when appellee came out of the west door of a house near the corner of Union and South Second streets, and crossed the sidewalk to catch up and walk with her husband, whom she saw on the opposite side of the street, the two boards were lying lengthwise of the walk, side by side, near the center of the hole. She was walking south, and stepped on the west one of the two boards, which turned or flew up, and she fell astride the board with her feet in the ditch, but not touching the bottom. She fell forward to the right in a doubled-up position, her hands striking the walk on the south side of the hole. Her weight struck with full force upon the upturned edge of the board upon the right side of the abdomen in the pelvic region. The evidence tends to show that her injuries were serious. Two operations were performed upon her, in the first of which her womb was stretched, and in the second of which the abdomen was opened.

MAGRUDER, J. (after stating the facts).

In this case three instructions were given in behalf of appellee, and ten instructions were given in behalf of appellant. Four instructions, asked by the appellant, were refused, but no point is made in the argument of counsel as to the refusal of these instructions. The evidence tends to show, and upon this point is not seriously contradicted, that the appellant city was guilty of negligence in allowing the sidewalk, at the place where the accident occurred, to remain defective and out of repair; and although there is some evidence to the effect that complaint in regard to its condition was made to some of the city authorities, and it was repaired by reason of such complaint, yet afterwards it again became out of repair, and remained so for a long time before the accident occurred. The proof tended to show that it was out of repair for some two years before March 28, 1903, when appellee was injured. Appellant's counsel, at the close of all the evidence and before the commencement to the argument, presented to the court and to appellee's counsel a written motion to submit to the jury the following instruction and interrogatory, and moved the court in writing to submit to the jury said interrogatory to be answered by them, and to give to them the instruction attached to the interrogatory; and thereupon the court gave such instruction, and its accompanying special interrogatory, which are as follows, to wit: ‘The jury are instructed to answer the interrogatory hereunder written by the word ‘Yes' or ‘No,’ as they shall find the fact from the evidence, and to sign the same and to return the same into court with their general verdict. Interrogatory: Could the plaintiff by the exercise of due and ordinary care, as defined in the instructions given you, have avoided the fall and injurymentioned in her declaration and in the evidence?' To which special interrogatory, submitted to them by the court, the jury answered ‘No.’

First. The giving of the first instruction, given on behalf of appellee by the trial court, is assigned as error by the appellant. This instruction required the jury, among other things, in order to entitle the appellee to recover, to believe from the evidence ‘that the corporate authorities of the city of Gibson did not exercise all reasonable care and caution and supervision over the sidewalk where the alleged injury in question is alleged to have occurred, to keep it in good and safe condition, and by that means allowed it to become defective and unsafe.’ This instruction is alleged to be erroneous upon the ground that it required the city to exercise reasonable care over the sidewalk ‘to keep it in good and safe condition,’ instead of requiring the city to keep it in a ‘reasonably good and safe condition.’ The instruction required the city to exercise ‘reasonable care and caution,’ to keep the sidewalk in good and safe condition, but omitted the word ‘reasonably’ before the words ‘good and safe condition.’ In this respect the instruction was defective. It is undoubtedly the law that cities and villages are only required to keep the sidewalks in a reasonably safe condition. Town of Grayville v. Whitaker, 85 Ill. 439;City of Chicago v. Bixby, 84 Ill. 82, 25 Am. Rep. 429;Village of Mansfield v. Moore, 124 Ill. 133, 16 N. E. 246. It is to be observed that in this instruction the words complained of are followed by this clause, ‘and by that means allowed it to become defective and unsafe.’ A finding of the jury in behalf of the plaintiff was conditioned upon their believing from the evidence that there was a failure to exercise reasonable care over the sidewalk to keep it in good and safe condition, and that by that means the sidewalk was allowed by the city to become defective and unsafe. If the sidewalk was allowed to become defective and unsafe, the city had failed to keep it even in a reasonably good and safe condition.

In addition to this, the court gave to the jury instruction numbered 9 at the request of the appellant, which is as follows: ‘The law imposes upon cities the duty to exercise reasonable care to keep its streets and sidewalks in reasonably safe condition for use by persons traveling thereon. The city is not an insurer against injuries received by reason of defects in its streets or sidewalks. If it maintains them in reasonably safe condition, it is...