City of Lasalle v. Kostka

• Decision Date: 18 April 1901
• Citation: 190 Ill. 130,60 N.E. 72
• Parties: CITY OF LASALLE v. KOSTKA.
• Court: Illinois Supreme Court

190 Ill. 130

60 N.E. 72

CITY OF LASALLE

v.KOSTKA.

Supreme Court of Illinois.

April 18, 1901.

Appeal from appellate court, Second district.

Action by Hyacinth Kostka against the city of Lasalle. From a judgment of the appellant court (92 Ill. App. 91) affirming a judgment for complainant, defendant appeals. Affirmed.William J. Siegler, City Atty., and Haskins & Panneck, for appellant.

George J. Gleim, John E. Coleman, and Trainor & Browne, for appellee.

This is an action on the case, brought by appellee against appellant to recover damages for injuries sustained by him in consequence of the caving in of the banks of a sewer in which he was working for appellant under the direction of its street superintendent. The sewer caved in, and seriously injured appellee. Two years later he brought this suit. The defendant filed a plea of not guilty, and upon trial by jury there was a verdict of $2,500 in favor of appellee, upon which the court rendered judgment. An appeal was taken from this judgment to the appellate court, where the judgment of the circuit court was affirmed. The present appeal is prosecuted from such judgment of affirmance. The declaration contained one count only, which charges that the defendant, the city of Lasalle, was, on or about July 7, 1897, engaged in the construction and excavation of a certain sewer within said city in an alley between Bucklin and Wright streets in said city; that the complainant was employed by the city as a common laborer to assist in constructing and excavating said sewer; that ‘it was the duty of defendant to so construct said sewer that the sides or walls of the excavation would be firm, and that the earth, sand, and other substances then and there being would be firmly held in place, and that persons in the employ of said city, and engaged in the constructing of said sewer, might with safety enter into the excavation thereof to perform the work necessary to be performed therein, to properly construct the same; yet the defendant, not regarding its duty in that behalf, while it was so constructing said sewer aforesaid, to wit, on the day aforesaid, there wrongfully, carelessly, and negligently suffered the excavation for the sewer to remain in an unsafe condition, and the earth, sand, and other substances forming the sides or walls of said excavation to remain in a loose, water-soaked, and dangerous condition; whereby the plaintiff,’ etc.

MAGRUDER, J. (after stating the facts).

The appellant announces in its brief that it relies for a reversal of the judgment in this case upon the following propositions: ‘First, that the court erred in giving the two instructions asked by appellee; second, that the court erred in refusing several of the instructions asked by appellant; third, that the court erred in permitting the appellee to make proof of the fact that the ditch in question was not shored or braced at the place of the accident at the time of the injury; fourth, because the damages awarded the appellee were excessive.’

As to the fourth proposition,-that the damages awarded the appellee were excessive,-it is sufficient to say that the amount of damages sustained by the plaintiff in an action at law is a question of fact, which is not open for consideration in this court under the statute. Railroad Co. v. Bode, 150 Ill. 396, 37 N. E. 879, and cases there cited; Railway Co. v. Walsh, 157 Ill. 672, 41 N. E. 900.

The proposition that the trial court erred in permitting appellee to prove the fact that the ditch in question was not shored or braced at the place of the accident when the injury occurred is disposed of by what is hereafter said in reference to the refusal of the court below to give for the appellant its instruction numbered 28.

1. It is assigned as error by the appellant that the court gave the two instructions which it gave for the appellee numbered 1 and 2. The first of the two instructions given for the appellee is as follows: ‘If the jury believe from the evidence that the plaintiff has made out his case, as laid in the declaration, by a preponderance or greater weight of the evidence, they must find for the plaintiff,’ etc. This instruction, in substantially the same form, was approved by this court in Pennsylvania Co. v. Marshall, 119 Ill. 399, 10 N. E. 220. But appellant contends that the instruction is erroneous because it ignores the questions whether or not-First, the appellee knew the condition of the ditch; or, second, could have known of its condition by the exercise of ordinary care; or, third, had as good an opportunity of knowing its condition as the defendant had. Appellant contends that under the first instruction the jury might have believed all the elements contained in the declaration to have been proved as laid, and still, as a matter of law, appellee would not be entitled to recover upon the theory that the declaration failed to allege that appellee did not know of the dangerous condition of the ditch, or by the exercise of ordinary care could not have known of it, or did not have as good an opportunity to know as the defendant had. The declaration alleges, in addition to the allegations thereof in the statement preceding this opinion, that the plaintiff was ‘using due and ordinary care for his own safety.’ ‘The allegation of due care in the’ injured party ‘negatives negligence, and, by implication, that he had knowledge of the defects by reason of which he was injured. * * * The allegation is therefore sufficient on error, if, indeed, it should be admitted that it would not be so on demurrer.’ Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021; Railroad Co. v. Simmons, 38 Ill. 242. The allegation of due care in plaintiff's declaration negatived his knowledge of the defects by which he was injured, and the declaration stands as if it contains the express allegation that plaintiff had no such knowledge. If plaintiff had knowledge of the defects through which his injury was received, the fact of such knowledge is matter of defense. In Railroad Co. v. Hines, supra, we said: ‘But it is a matter of defense that the deceased had knowledge of the defects through which his injury was received. Unless it shall appear from the evidence that he had such knowledge, it will not be presumed, since no one is presumed to knowingly incur physical pain and death where he can avoid it at his discretion.’Railway Co. v. Coss, 73 Ill. 394;Railway Co. v. Shacklet, 105 Ill. 364. Hence we are of the opinion that the court committed no error in giving the first instruction which was given for the appellee. The same reasoning applies to the second instruction given for the appellee, inasmuch as the same defect is urged against the latter which is urged against the former. It may be observed in this connection, however, that the court did give to the jury in behalf of appellant instructions which required them to find, as one of the conditions to appellee's right of recovery, that he did not know, or could not have known by the exercise of ordinary care, that the ditch or sewer in which he was working was unsafe, and that his means of knowledge were not equally as good as those of the city. Nor can it be said as a matter of law that appellee assumed the risk of the dangers to which he was exposed. ‘The rule that the servant assumes the ordinary risks incident to the business presupposes that the master has performed the duties of caution, care, and vigilance which the law casts upon him. It is these risks alone which cannot be obviated by the adoption of reasonable measures of precaution by the master that the servant assumes.’ Pantzar v. Mining Co., 99 N. Y. 376, 2 N. E. 24;Booth v. Railroad Co., 73 N. Y. 40; Coal Co. v. Reid, 3 Macq. 275. The law is that the servant does not assume risks that are unreasonable or extraordinary, nor risks that are extrinsic to the employment, nor risks of the master's own negligence. In Noyes v. Smith, 28 Vt. 64, the supreme court of Vermont say: ‘The master is bound to exercise care and prudence that those in his employment be not exposed to unreasonable risks or dangers, and the servant has a right to understand that the master will exercise that diligence in protecting him from injury. * * * It is only such injuries as have arisen after the exercise of that diligence and care on the part of the master that can properly be termed ‘accidents' or ‘casualties' which the servant has impliedly agreed to risk, and for which the master is not liable.’

2. It is claimed on the part of the appellant that the court erred in refusing to give certain instructions asked by the appellant, and, among these, instructions numbered 26 and 37. Instructions 26 and 37 told the jury that if they believed from the evidence that the plaintiff had as good an opportunity to ascertain for himself as the defendant had for itself whether the sewer in which he was working was or was not dangerous at the time of the injury, then, and in such case, if they believed from the evidence that plaintiff voluntarily continued to work therein, and while working therein was injured by reason of a portion of the bank of said ditch falling upon him, he was, in such case, not entitled to recover. Whether or not these instructions embodied a correct principle of law it is not necessary to decide, as their refusal worked no injury to the appellant, for the reason that the doctrine announced therein was embodied in instruction No. 19 which was asked by the appellant, and which was given by...