City of Salem v. Webster

• Decision Date: 24 October 1901
• Citation: 192 Ill. 369,61 N.E. 323
• Parties: CITY OF SALEM v. WEBSTER.
• Court: Illinois Supreme Court

192 Ill. 369

61 N.E. 323

CITY OF SALEM

v.WEBSTER.

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, Fourth district.

Action by Lee F. Webster against the city of Salem. From a judgment of the appellate court (95 Ill. App. 120) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

George W. Smith, Frank F. Noleman, and John B. Kagy, for appellant.

T. E. Merritt, C. E. Jennings, and L. M. Kagy, for appellee.

CARTWRIGHT, J.

In May, 1898, the appellant, the city of Salem, made an open ditch with a road grader across Church street, one of the public streets of said city in general use, to allow surface water to run across the street. In the latter part of July, the ditch having become partially filled up so as to impede the flow of the water, the city caused it to be dug out with spades. The dirt was thrown in the street on the sides of the ditch, which was something more than a foot deep across the traveled way, and as wide as it was deep. No guards or lights were placed at or near the ditch at any time, and on August 16, 1898,-two or three weeks after it was opened up again,-at about 10 o'clock at night, when it was quite dark, appellee was driving along said Church street in a buggy, and in crossing the ditch was thrown out upon the ground. He was carried to the house of a physician near by, where he was cared for, and was afterwards removed to his home, and subsequently to a hospital in St. Louis, and at each place he was treated for injuries alleged to have been sustained in said accident. He brought this suit to recover damages for such alleged injuries, and recovered a judgment, which was affirmed by the appellate court.

The first assignment of error is that the trial court erred in admitting improper evidence in behalf of the plaintiff. Under this assignment our attention is called to various questions and answers which were objected to by defendant at the trial, as to which the court made no ruling, and there is therefore no exception to any ruling. If counsel desired to have any action of the court concerning their objections reviewed, it was their duty to insist upon a ruling, and except to such ruling, or to the failure or refusal of the court to pass upon the objections. Error can only be assigned upon some ruling of the court, or failure to rule, to which exception is preserved, and we cannot consider any question sought to be raised under said objections.

There are a number of other objections upon which the court ruled and exceptions were taken. In one case a witness was asked if the attention of the city authorities was called to the condition of the ditch. He answered that he told some one, but he did not know whether it was one of the city authorities or not. Objection was made to the answer, and it was overruled. The ruling was wrong, but it did not harm to the defendant for this reason: The declaration charged that defendant caused the ditch to be dug across one of its public streets, of such depth and width as to be dangerous, and left the same open and unguarded and unprotected during both daytime and nighttime, and the evidence showed, without contradiction, that the charge was true. The question of notice to the city authorities concerning the condition of a street is involved only where they have not produced the condition themselves, in which case they necessarily know the fact. In this case there is no dispute that the city dug the ditch in the first place with a street grader, and afterwards dug it out with spades. It was not necessary to show that notice was brought to the city by other means that it had dug the ditch, and the error was harmless.

Objections were also made and overruled to the testimony of physicians as to what plaintiff said to them while being examined and treated in describing his feelings and detailing the nature and location of his pains and sufferings. As to such matters the opinions of the physicians must necessarily be formed and guided by statements of the patient, and the evidence was within the rule laid down in Railroad Co. v. Sutton, 42 Ill. 438, 92 Am. Dec. 81, and Railroad Co. v. Carr, 170 Ill. 478, 48 N. E. 992. There was no error in those rulings. One of these physicians was near by when the accident happened, and, with another person, picked the plaintiff up, and carried him to his house. He was allowed to state that plaintiff at that time cried out with pain, and described the pain in his back. What was stated was not a recital of any past event, but the natural expressions of suffering. The physician took plaintiff right into his own house, close by, and immediately administered to him as a physician. The physician heard the accident, and was at the spot almost immediately, and was guided by the groans of plaintiff to the place where he lay. The evidence was admissible as the natural expressions of suffering, if not as a part of the res gestae. Some other evidence admitted comes under the same rule as to natural expressions and appearances.

The next assignment of error is that the trial court refused to admit proper evidence on behalf of the defendant. The argument under this assignment is, mainly, that the court improperly limited cross-examination of witnesses for plaintiff. The questions to which objections were sustained were not proper cross-examination, and we do not find any error in ruling on them, but think the court was quite liberal with counsel in such cross-examination. The other objections under this assignment are the following: Defendant called a witness by whom it was attempted to prove that plaintiff was ordinarily a rapid driver, and the court held the evidence incompetent. There was direct testimony as to the rate at which plaintiff was driving, and, consequently, the offered evidence was not competent. It is only in cases where there is no direct testimony as to the conduct of a person at a particular time that resort may be had to inferences as to such conduct, arising from the ordinary habits or general character of such person as to care and caution.

Defendant also asked a witness, who had been at plaintiff's house a good deal, and had opportunities for observation, if plaintiff had been pampered and petted. We cannot see how the question whether plaintiff had been a family pet, or had been pampered, had any relevancy to the issue in the case.

The next complaint is that the trial court erred in giving the first instruction requested by the plaintiff. The instruction is quite defective. It states that it is the duty of cities to keep their streets in reasonably safe repair and condition for travel over them, and is erroneous in stating the duty as an absolute one. Streets may undergo changes, and improvements may properly be made which would render the performance of an absolute duty impossible. All that is required is reasonable care and diligence to keep the streets in reasonably safe repair and condition for travel, and, if a city uses reasonable and ordinary care in that respect, it will not be liable. In this case, however, there was...