City of Rockford v. Russell
| Decision Date | 31 May 1881 |
| Citation | 9 Bradw. 229,9 Ill.App. 229 |
| Parties | CITY OF ROCKFORDv.CORNELIUS RUSSELL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Winnebago county; the Hon. JOHN V. EUSTACE, Judge, presiding. Opinion filed November 2, 1881.
State street, in the city of Rockford, where it crosses Kent's Creek, is raised by embankments about ten feet above the natural surface of the ground. The bridge was built by the city that height, and the approaches to the bridge made by filling in earth of the same height at the abutments, and gradually descending from the bridge to the natural level of the ground. The bridge is thirty-two feet wide, including the sidewalks, but only one sidewalk extends west from the bridge, and that is located upon the north side of the embankment. The embankment constituting the roadway running west from the bridge is about 39 feet wide, until it approaches quite near the bridge, when it sharply narrows to the width of the bridge.
There was no railing upon the south side of the embankment. On the 11th day of January, 1879, the plaintiff drove over the bridge with a horse and sleigh from the east, and after transacting his business was returning, and when within about twenty feet of the west end of the bridge, the horse suddenly turned his head to the left, or towards the sidewalk, and shied to the south, and giving a second spring, jumped over the south wing of the abutment of the bridge, taking the sleigh and plaintiff with him, to the ice below.
The plaintiff was quite seriously injured, and the horse and cutter slightly.
This action was brought by the plaintiff against the city to recover damages for such injuries, claiming that the city was negligent in not constructing and maintaining said embankment in a reasonably safe condition, and especially in not erecting a railing along the south side of said embankment. Upon trial the plaintiff recovered a verdict and judgment for $1,000, and the city appeals to this court, assigning various errors upon the record.
Mr. R. W. CRAWFORD, for appellant; that it was error to allow plaintiff to prosecute as a poor person, and this court will review the action of the trial court in that respect, cited Ball v. Bruce, 27 Ill. 332; Sterling Bridge Co. v. Pearl, 80 Ill. 251; Papineau v. Belgarde, 81 Ill. 61.
In the absence of any allegation of special damage, no evidence upon that point can be heard: Chicago v. O'Brennan, 65 Ill. 160; Adams v. Gardner, 78 Ill. 568.
In cases of this character each instruction should correctly state the law: President, etc. v. Carter, 2 Bradwell, 34; President, etc. v. Rogers, 2 Bradwell, 100; Freeport v. Isbell, 83 Ill. 440; LaSalle v. Thorndike, 7 Bradwell, 285.
The city is only bound to reasonable care in making and maintaining its streets so that they will be reasonably safe for ordinary travel: Centralia v. Krouse, 64 Ill. 19; Chicago v. Pixley, 84 Ill. 85; Joliet v. Walker, 7 Bradwell, 271.
The instruction as to comparative negligence was erroneous: City of Winchester v. Case, 5 Bradwell, 486; La Salle v. Thorndike, 7 Bradwell, 282; Presideut, etc. v. Carter, 2 Bradwell, 34; North Chicago Rolling Mills v. Monka, 4 Bradwell, 664.
The city is not obliged to keep the whole width of its street of the same grade: Howard v. Inhabitants, etc. 16 Pick. 189; Farrell v. Oldtown, 69 Me.
If the appellee knew the bridge was dangerous, and he still persisted in going over, he cannot recover: City of Macomb v. Smithers, 6 Bradwell, 470.
Mr. J. C. GARVER, for appellee; that prosecution as a poor person is in the discretion of the trial court, cited Papineau v. Belgarde, 81 Ill. 61.
Evidence of inability to attend to business is competent in such cases: Schultz v. Lepage, 21 Ill. 160; Davenport v. Ryan, 81 Ill. 218; Crist v. Wray, 76 Ill. 204.
Leaving a street in the condition this was without a safeguard, is per se negligence: Atlanta v. Wilson, 59 Ga. 544; Chicago v. Gallagher, 44 Ill. 295; Chicago v. Johnson, 53 Ill. 91; Chicago v. Hirg, 89 Ill. 542; Sterling Bridge Co. v. Pearl, 80 Ill. 251; Joliet v. Verley, 35 Ill. 58; Wharton on Negligence, §§ 403, 981; Pridiaux v. Mineral Point, 43 Wis. 513; Borough of Pittsten v. Hart, Weekly Jur. July 31, 1879.
Appellee used the street as other people did, for a public thoroughfare; this is not negligence that of itself bars a recovery: Reed v. Northfield, 13 Pick. 94; Wheeler v. Town of Westport, 30 Wis. 392; Milwaukee v. Davis, 6 Wis. 377; Aurora v. Hillman, 90 Ill. 61; Lovenguth v. Bloomington, 71 Ill. 238.
Appellee had no notice of the fright of his horse. It was necessary that he should pass over this street, which he did, using ordinary care: Aurora v. Pulfer, 56 Ill. 270; Aurora v. Dale, 90 Ill. 46; Lower M. T'p v. Merkhoffer, 71 Pa. St. 276; Wharton on Negligence, §§ 403, 976, 997.
It is first urged as a reason why this judgment should be reversed, that the court below erred in allowing the cross-motion of plaintiff for leave to prosecute his cause as a poor person under the statute.
This is a matter that must be left in a great measure to the discretion of the trial court, and with which an appellate court will not interfere unless such discretion has been greatly abused. In this case we perceive no such abuse of the discretion vested in the court below as would authorize us to review its action in that regard.
The next contention of the appellant is that the court erred in admitting in evidence a stereoscopic view of the south side of the bridge and the embankment; also one of State street west of the bridge, showing the surface of the roadway or street and the west end of the bridge. The court also allowed in evidence a stereoscope to aid the jury in the examination of the views. Preliminary to the offering in evidence of such views the plaintiff called W. T. Seeley, who testified that he was a photographer skilled in the art; that the process of taking stereoscopic views was the same as in photography; that the views were taken by him and were correct. He also stated from what points the views were taken.
A. C. Burnham also testified that he was a photographer and had been for ten years; and after examining the views through the stereoscope, testified that the “effect is very material, and if the view is properly taken, looking through the glass at the picture, the effect is that of nature viewed with two eyes.”
There was no error in this action of the court. It is a common practice to admit a plan or picture shown to be a correct representation by preliminary proof, to aid the jury in a proper understanding of the case, and we do not see any difference in the application of the rule whether the picture is made by hand or by the art of photography, the real question being whether the view be a correct representation. Marcy v. Barnes, 16 Gray, 161; Hollenbeck v. Rowley, 8 Allen, 473; Cozzens v. Higgins, 1st Abb. N. Y. 451; Ruloff v. The People, 45 N. Y. 213; Uddergook v. Commonwealth, 76 Penn. St. 340; Church v. Milwaukee, 31 Wis. 512.
Again, the appellant complains that the court allowed the plaintiff to show that in consequence of the injury he was prevented from attending to his ordinary business. The point of the objection is that there is no averment in the declaration under which such proof can be admitted. We have examined the declaration, and find that in the first count thereof such a claim for damages is distinctly made, and the objection is not valid even if such allegations were necessary to admit the evidence in question.
The defendant below introduced some evidence tending to show that the horse was of a vicious disposition, and claimed that the action of the horse in jumping off the embankment, was the result of such viciousness, or that he became frightened, or suddenly attacked with disease, so as to...
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