City of Macon v. Holcomb
| Decision Date | 16 December 1903 |
| Parties | CITY OF MACON v. HOLCOMB. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Third District.
Action by Benjamin F. Holcomb against the city of Macon. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendant appeals. Reversed.
Redman & Hogan, for appellant.
The appellee brought this action in the circuit court of Macon county against the appellant to recover for an injury to his ankle alleged to have been caused through the negligence of the defendant in failing to keep in repair a sidewalk on one of its streets. The plea was ‘Not guilty,’ and upon a trial by jury a verdict and judgment were rendered in favor of the plaintiff for $1,200. The defendant appealed to the Appellate Court, where the judgment of the circuit court was affirmed, and to reverse the latter judgment this appeal is prosecuted.
All controverted facts, including the amount of damages, having been settled by the judgment of the Appellate Court, and no objection being here made as to the ruling of the trial court on the admission or exclusion of evidence, the only question for our consideration arises upon the giving and refusing of instructions.
It is insisted that error was committed in the giving of the second, third, fifth, and seventh instructions on behalf of the appellee, and the refusal to give the seventh asked by the appellant. The criticism made upon the second instruction given for plaintiff is that it uses the expression ‘all reasonable care and prudence,’ whereas it is said it should have read ‘reasonable care and prudence,’ omitting the word ‘all.’ The instruction would have been more accurate if it had omitted that word, but the jury could not have been misled by it, especially in view of the fact that other instructions given on behalf of both parties correctly defined the legal duty of the city in keeping its sidewalks in repair. It is said the third imposed upon the city the absolute duty of keeping its sidewalks in repair, whereas the law simply required it to exercise diligence in that regard. Considering the instruction as a whole, it is not subject to the criticism made; but, if it were otherwise, the law is correctly stated in several other instructions given. The most that can be justly said as to either the second or third of plaintiff's instructions is that, standing alone, they might have been calculated to mislead the jury to the prejudice of defendant; but, in the light of others given, we are clearly of the opinion that such could not have been the case.
We see no substantial ground for the objection made to the seventh instruction given on behalf of appellee, which relates only to the measure of damages. It is in substantial conformity with the decision of this court in the case of Chicago & Eastern Illinois Railroad Co. v. Kneirim, 152 Ill. 458, 39 N. E. 324,43 Am. St. Rep. 259.
The complaint made of the refusal of the seventh...
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Wolf v. New York, C. & St. L. Railroad Co., 36828.
...141 N.E. 175; W.C.S. Railroad Co. v. Liderman, 187 Ill. 463; Bushman v. C. & S.C. Ry. Co., 214 Ill. App. 435; City of Macon v. Holcomb, 205 Ill. 643; Connole v. E. St. L. & S. Ry. Co., 102 S.W. (2d) 581. (6) The failure to apply the law of Illinois in the determination of this controversy w......
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