City of Springfield v. Claire

• Citation: 1869 WL 5144,49 Ill. 476
• Parties: CITY OF SPRINGFIELDv.HENRY LE CLAIRE.
• Decision Date: 31 January 1869
• Court: Supreme Court of Illinois

49 Ill. 476

1869 WL 5144 (Ill.)

CITY OF SPRINGFIELD

v.HENRY LE CLAIRE.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Sangamon county; the Hon. EDWARD Y. RICE, Judge, residing.

This was an action on the case, brought in the court below, by the appellee, against the appellant, to recover damages for injuries alleged to have been sustained by him from falling into a sewer which was being made in one of the streets of the city. The defendant pleaded the general issue, and two special pleas. Joinder was had on the plea of the general issue, and a general demurrer was filed to the special pleas, which the court sustained, and rendered judgment thereon. A trial was had thereupon, before the court and a jury, and a verdict and judgment rendered for the plaintiff for $2,000, to reverse which the record is brought to this court by appeal, the appellant assigning for error, the action of the court below in rendering judgment on the demurrer to the special pleas.

Messrs. MCCLERNAND & BROADWELL and Mr. T. G. PRICKETT, for the appellant.

Messrs. PALMER & HAY, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court: The questions presented by this record arise out of the ruling of the circuit court on the special pleas of the defendant, appellant here. There are two of these, by the first of which, responsibility is sought to be thrown on the contractor who made the sewer.

That the city may not be liable, within the meaning of the rule respondeat superior, for the acts of its contractors or their workmen while engaged in effecting a lawful object, is not the question here. The question is, was there a duty resting upon the city, growing out of the franchises conferred upon it, to keep its public streets in a safe condition for the passage of travelers and others having occasion to use them. That there was, is established by the charter bestowing the franchises, the sixth clause of the fifth article of which gives to the city exclusive control and power over its streets, alleys and highways, and to put drains or sewers therein; and by the seventh clause of the same article, full power is given it to construct, regulate and keep in repair bridges, culverts and sewers, sidewalks and cross-ways, and to regulate the construction and use of the same.

It is a necessary corollary, from these premises, that a party receiving damage from neglect of this duty, is entitled to his action. Clayburgh v. The City of Chicago, 25 Ill. 535. As the city is the principal in the duty imposed, it must occupy the same position when damages are claimed for a neglect of that duty. Neither the one nor the other can be shuffled off the city by their act. Admitting that the power to construct sewers is discretionary as to the time of its exercise, yet, when exercised, it must be in such a manner as not to expose others to injury. A corporation, like individuals, is required to exercise its rights and powers, and with such precautions, as shall not subject others to injury.

But it is quite unnecessary to argue the question presented by this plea, as the matters...