City of Sandwich v. Dolan

• Decision Date: 14 May 1890
• Citation: 133 Ill. 177,24 N.E. 526
• Parties: CITY OF SANDWICH v. DOLAN.
• Court: Illinois Supreme Court

133 Ill. 177

24 N.E. 526

CITY OF SANDWICH

v.DOLAN.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from appellate court, second district.

Action by Belle F. Dolan against the city of Sandwich. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals.

Carnes & Dunton, for appellant.

John L. Pratt and Sam'l Alschuler, for appellee.

CRAIG, J.

This was an action brought by Belle F. Dolan against the city of Sandwich to recover for an injury received from a fall on a defective sidewalk on the night of December 25, 1887. The plaintiff resided on the south side of Third street, and the accident occurred about 9 o'clock in the evening, as plaintiffwas going from the Congregational Church to her residence. The sidewalk over which the plaintiff was passing was the direct route from the church to her residence, and where the accident occurred, in front of what is known as the ‘Kinney lot,’ it had been out of repair, and in an unsafe and dangerous condition, for several months. The plaintiff had been in the habit of passing over the defective walk for some months before the accident, as she testified, from four to six times a week, and the dangerous condition of the walk was known to her at the time. On the trial one witness, who resided on the same side of the street where plaintiff resided, testified, in his cross-examination, substantially as follows: ‘I had avoided this walk during the fall and summer before Christmas. My reason was that there was danger from loose boards flying up. It is the nearest way for us to go to church for evening services, when we pass into the lecture-room, but in the morning I usually went on the other side of the street.’ Doubtless, for the purpose of removing from the mind of the jury the impression which might be created by this evidence, that any legal duty rested upon the plaintiff of taking some other route to the church which might be safer or less dangerous, or for the purpose of removing from their mind the fact that plaintiff did not exercise ordinary care, counsel for plaintiff prepared, and the court gave to the jury, the following instruction: ‘(10) If the jury believe from the evidence that the most direct route for the plaintiff in going to and from the Congregational Church, in the city of Sandwich, to her home, in said city, was over the sidewalk along the south side of Third street, in said city, then the fact, if shown by the evidence, that such sidewalk on said street over which plaintiff passed was defective, and had been in a defective condition for some months previous to the alleged injury, would not oblige her to take another less convenient sidewalk.’ The giving of this instruction is relied upon as error. The court in instruction No. 8 directed the jury that the question of whether or not the plaintiff was exercising ordinary care to avoid injury, in passing over the sidewalk when and where the alleged injury took place, is a question of fact, to be determined by the jury from all the evidence. This charge to the jury was clearly correct. The plaintiff could not recover, however negligent the defendant may have been in failing to keep its sidewalks in proper repair, unless the plaintiff at the time of the accident was exercising ordinary care to avoid injury, and whether plaintiff was in the exercise of ordinary care, as has been often held, is a question of fact. Had the question of what degree of care was required of plaintiff been left where this instruction placed the question, no fault could be found with the instructions; but it is denied that No. 10 invades the province of the jury, and in substance directs them that the plaintiff might expose herself to known danger with impunity, provided she was traveling in the most direct route to her home. As has been said before, it was a question for the jury to determine whether the plaintiff at the time she received the injury was in the exercise of proper care. If there were two routes from plaintiff's residence to the church, one dangerous and the other entirely safe, and in the selection of a route plaintiff saw proper to pass over the dangerous one, it could not be determined, as a matter of law, that plaintiff was justified in selecting the dangerous route, but the question ought to have been left to the jury. As an abstract question, it may be that plaintiff was not...