Gilmore v. City of Chicago

• Decision Date: 22 December 1906
• Citation: 79 N.E. 596,224 Ill. 490
• Parties: GILMORE v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

224 Ill. 490

79 N.E. 596

GILMORE

v.CITY OF CHICAGO. ^*

Supreme Court of Illinois.

Dec. 22, 1906.

Appeal from Appellate Court, First District.

Action by Kittie Gilmore against the city of Chicago. From a judgment of the Appellate Court, reversing a judgment in favor of plaintiff, she appeals. Reversed and remanded.Theodore G. Case, for appellant.

John F. Smuiski, City Atty. (Edward C. Fitch, of counsel), for appellee.

On February 9, 1901, Kittie Gilmore, the appellant (hereinafter referred to as plaintiff), brought an action of case in the superior court of Cook county against the city of Chicago, the appellee (hereinafter referred to as defendant), to recover damages for personal injuries sustained by her on February 4, 1900, and which were occasioned by stepping into a hole in a sidewalk. On March 20, 1901, she filed a declaration consisting of one count, which alleged that the defendant, on February 4, 1900, ‘was possessed and had control of a certain public sidewalk on the north side of a certain public street called ‘Thirty-eighth Street,’ at and near to the intersection of said Thirty-eighth street with Princetonavenue and between Princeton avenue and Shields avenue, in said city, in the county aforesaid;' that defendant, in violation of its duty to the plaintiff, negligently suffered the same to be and remain in bad and unsafe condition, so that the plaintiff, while passing, had her left foot caught in an opening in said sidewalk, whereby she was seriously and permanently injured. On September 21, 1904, the plaintiff filed an additional count, which is substantially the same as the original count, the only difference being in the phraseology. The defendant interposed the general issue to each of these counts.

Thereafter, on October 5, 1904, the plaintiff, by leave of court, amended the original declaration and the additional count by striking out the words ‘Princeton avenue’ wherever the same therein occurred and inserting in lieu thereof the words ‘Stewart avenue.’ To the original and additional counts, as thus amended, the defendant filed the general issue and a plea setting up the statute of limitations. The defendant filed a similiter to the general issue and demurred to the plea of the statute of limitations. The demurrer was sustained, and the defendant stood by its special plea, and went to trial upon the general issue. The jury returned a verdict for $3,000 in favor of the plaintiff, and the court, after overruling a motion for a new trial, entered judgment upon the verdict for $3,000. From that judgment the defendant appealed to the Appellate Court for the first district. That court reversed the judgment of the superior court without remanding the cause, and incorporated in its judgment the following finding of facts: ‘And the court, upon the allegations and proofs in the record in this cause contained, doth find as facts that the description of a place as follows: ‘The north side of a certain public street called ‘Thirty-eighth Street,’ at and near to the intersection of said Thirty-eighth street with Stewart avenue and between Stewart avenue and Shields avenue, in said city,' is not the same as or included within the description,‘the north side of a certain public street called ‘Thirty-eighth Street,’ at and near to the intersection of said Thirty-eighth street with Princeton avenue and between Princeton avenue and Shields avenue, in said city, in the county aforesaid.' Also, that the said first above quoted description is not the same as or included within the description, ‘a certain public highway known as ‘Thirty-eighth Street,’ at or near the intersection of Thirty-eighth street with Princeton avenue and between Princeton and Shields avenues, in the city of Chicago.' Also, that the description of a place as follows: ‘A certain public highway known as ‘Thirty-eighth Street,’ at or near the intersection of Thirty-eight street with Stewart avenue and between Stewart and Shields avenues, in the city of Chicago,' is not the same as or included within the description, ‘the north side of a certain public street called ‘Thirty-eighth Street,’ at or near to the intersection of said Thirty-eighth street with Princeton avenue and between Princeton avenue and Shields avenue, in said city,' or the same as or included within the description, ‘a certain public highway known as ‘Thirty-eighth Street,’ at or near the intersection of Thirty-eighth street with Princeton avenue and between Princeton and Shields avenues, in the city of Chicago.' Also, the Princeton avenue, Shields avenue and Stewart avenue run north and south in the city of Chicago, parallel to each other; that Shields avenue is east of Stewart avenue and west of Princeton avenue, and that Thirty-eighth street runs east and west in the city of Chicago, at right angles with the direction of Princeton, Shields and Stewart avenues.'

The plaintiff appealed to this...