City of Lanark v. Dougherty

• Decision Date: 29 October 1894
• Citation: 38 N.E. 892,153 Ill. 163
• Parties: CITY OF LANARK v. DOUGHERTY.
• Court: Illinois Supreme Court

153 Ill. 163

38 N.E. 892

CITY OF LANARK

v.DOUGHERTY.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from appellate court, Second district.

Action on the case by Michael J. Dougherty against the city of Lanark. Plaintiff obtained judgment, which was affirmed by the appellate court. 45 Ill. App. 266. Defendant appeals. Affirmed.

The third instruction given for the plaintiff, referred to in the opinion, was as follows: ‘(3) The jury are instructed that, in determining the questions of negligence in this case, they should take into consideration not only the conduct of the plaintiff, but also the conduct of the city of Lanark, the defendant herein, in reference to the hole in the sidewalk in controversy in this case, at the time of the alleged injury, as disclosed by the evidence; and if the jury believe from the evidence that the injury complained of was caused by the negligence of the defendant, as described in the declaration, and if the jury further believe from the evidence in this case that the plaintiff was without fault, and was exercising ordinary care and prudence, in passing along the sidewalk in question at the time the accident complained of occurred, then the plaintiff is entitled to recover in this case such damages as the jury may believe, from all the evidence, he is entitled to receive as a compensation for all the damages received and suffered by said plaintiff in the premises, provided the jury find from the evidence that the plaintiff was injured as described in the declaration in this case, or either of the several counts thereof, and that the defendant knew, or by the exercise of reasonable care might and could have known, of the existence of the alleged defect in said sidewalk.’Geo. L. Hoffman and J. M. Hunter, for appellant.

W. H. A. Renner, for appellee.

MAGRUDER, J.

This is an action to recover damages for a personal injury inflicted upon appellee as the result of stepping into a hole in a sidewalk. Verdict and judgment in the circuit court were in favor of appellee, and such judgment has been affirmed by the appellate court, whence the case is brought here by appeal. All the questions of fact are settled by the judgment of the appellate court.

1. It is claimed that the trial court erred in permitting the injured limb of the plaintiff to be examined in the presence of the jury by a physician who was called as an expert witness. There was no error in the action of the court in this respect. In an accident case it is held to be within the discretion of the court to allow the plaintiff to exhibit to the jury his injured limb or body. Springer v. City of Chicago, 135 Ill. 562, 26 N. E. 514, and cases there cited. Here the medical expert made the examination in the presence of the jury, without objection or exception on the part of the counsel for appellant.

2. Objections are made to three of the instructions given for the plaintiff. It is said of two of these instructions that they ignore the rule of comparative negligence. The doctrine of comparative negligence is no longer the law of this court. The instructions in the present case require the jury to find that the plaintiff was exercising ordinary care, and that the defendant was guilty of such negligence as produced the injury. This was sufficient, without calling the attention of the jury to any nice distinctions between different degrees of care or of negligence. Village of Mansfield v. Moore, 124 Ill. 138, 16 N. E. 246.

Counsel say of the first instruction given for plaintiff: ‘It was a question for the jury to find from the evidence-even if they should believe the hole existed at that place, and that its existence was known, or ought to have been known, to the city-whether its repair was necessary to make the sidewalk reasonably safe for use by the public. This question is taken from their consideration entirely by this...