City of Sterling v. Thomas
| Decision Date | 30 September 1871 |
| Citation | 60 Ill. 264,1871 WL 8132 |
| Parties | CITY OF STERLINGv.HENRY THOMAS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding.
Messrs. HENRY & JOHNSON, for the plaintiff in error.
Messrs. WILKINSON, SACKETT & BENNETT, for the defendant in error.
This was an action on the case for an injury occasioned by the negligence of plaintiff in error in allowing an opening in the sidewalk of the city of Sterling to remain unprotected, by means of which the defendant in error, though walking with all due care and caution, in the night time, was precipitated into the opening, and was seriously injured.
It appears one Edwards, who was erecting a building on the corner of Spruce and Third streets, in the city of Sterling, did, with the knowledge and consent of the city authorities, in order to reach the basement of his building, make an excavation under the sidewalk. This excavation was kept covered with loose boards, except when access to the basement was necessary; the boards, or a portion of them were then removed, and replaced after the necessity had passed.
This was the condition of the opening up to six o'clock of the evening of September 23, 1869, after which time some person unknown removed the covering, and the plaintiff, it being very dark that night, in going home, fell into the basement and broke his shoulder.
Boyden, the street commissioner, testified he knew the opening was there the day before the accident; saw it open when the sidewalk was first built; went down to it on purpose to see if it was covered.
It is insisted by the plaintiff in error that it is not chargeable with negligence, it having performed its duty in causing this excavation to be covered.
It is admitted, by the charter of the city its streets and sidewalks are under the care and control of the city authorities, and the duty to keep them in repair is incumbent on them, and for any neglect in its performance, they are liable in damages. City of Bloomington v. Bay, 42 Ill. 508.
The question whether this covering of boards, which could be easily removed, afforded sufficient security, was fairly left to the jury, and we concur with them in opinion it was not sufficient. Adequate security should have been afforded, which could have been done by erecting a sufficient railing around the excavation. This would have prevented any one...
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