Gridley v. the City of Bloomington.

• Decision Date: 30 June 1873
• Citation: 1873 WL 8273,68 Ill. 47
• Parties: ASAHEL GRIDLEYv.THE CITY OF BLOOMINGTON.
• Court: Illinois Supreme Court

68 Ill. 47

1873 WL 8273 (Ill.)

ASAHEL GRIDLEY

v.THE CITY OF BLOOMINGTON.

Supreme Court of Illinois.

June Term, 1873.

OPINION TEXT STARTS HEREAPPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an action on the case, brought by the city of Bloomington, against Asahel Gridley. The city recovered a judgment for $346, from which the defendant appealed.

Mr. HAMILTON SPENCER, and Messrs. WELDON & BENJAMIN, for the appellant.

Mr. IRA J. BLOOMFIELD, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Judgment having been recovered against appellee for injuries received by a party in consequence of the defective covering over a vault which was constructed under a sidewalk for the convenience of premises owned by appellant, this suit was brought to recover the amount that appellee was thus compelled to pay, appellant having been duly notified, but having neglected to defend the suit.

The declaration contains three counts. It is alleged in the first that the defendant was the owner and occupier of the premises, etc.; that there was a certain hole or opening into a cellar or vault, of and belonging to the said premises, which said hole or opening into said cellar or vault was caused by defendant negligently, carelessly and wilfully breaking the flag stone wherewith said cellar or vault was covered, etc.; and that the defendant, well knowing of said hole or opening, and while he was so the proprietor, owner and occupier of the said premises, with the appurtenances, wrongfully, carelessly and negligently permitted the same to be and continue, etc.

In the second count, it is alleged that the defendant was possessor, owner and occupier of the premises; that, while the defendant was owner and occupier of the premises, he wrongfully dug a hole or vault, etc., and so badly, carelessly, insufficiently and dangerously covered said hole or vault, and carelessly and wrongfully continued the same, and while the owner and occupier of the premises, etc. And in the third count, it is alleged that the defendant was the owner and occupier of the premises, etc., abutting on a certain common public highway and sidewalk there, which said sidewalk, abutting on said premises, said defendant was legally bound to keep in repair, in which said sidewalk there was a certain hole or opening; that the defendant, well knowing the premises while he was so the owner and occupier of said premises, real estate and appurtenances, and while there was such hole, etc., wrongfully, negligently and carelessly permitted the said hole to be and continue, etc.

It is a rule of pleading, applicable to cases like the present, that the plaintiff must, in his declaration, state the nature of the defendant's liability, and he must prove it as laid. 1 Chitty's Pleading, 417. And, although this may be done by a general mode of allegation, yet if, instead of doing so, the plaintiff states the ground of the defendant's liability with unnecessary particularity, he must prove it as laid. 1 Chitty's Pleadings, 265; Stephens on Pleading, 85; 1 Greenleaf's Evidence, sec. 65; 1 Starkie's Evidence, 377.

Is the ground of the defendant's liability here proved as laid?

It is insisted by the counsel for appellee, that the vault, through the defective covering over which the alleged injury was received, was constructed without special authority, for a private purpose, by the grantor of appellant, and that appellant has continued it, and is therefore responsible.

It is shown by the evidence that the vault was constructed by the grantor of appellant many years prior to the time the injury complained of was received, for the convenience of the adjacent building which was erected at the same time, and that it has since been used in connection with it by those occupying the building. It does not appear that the vault was not constructed with due care, or that, prior to this cause of action, the public was in any way incommoded by its construction or the state of repair in which it was kept. It seems to have been properly constructed, and, when completed, securely covered with a sound flag-stone six inches thick, of the kind known as “Joliet stone.” This, in the absence of evidence to the contrary, would appear to be sufficient for the legitimate and appropriate uses of a sidewalk. Although no license from the city to make the vault is shown, on the other hand no objection by the city is shown, either to the making of the vault, the mode of its construction, or the state of repair in which it has been kept; and, situated as it is, under the sidewalk of a public street, and for so great a length of time, we can not presume that those having charge of the streets, under the authority of the city, were ignorant of its existence, or of the respective rights and duties of the city and the owner of the property in relation to it. We regard this acquiescence as a sufficient recognition by the city of authority to construct and maintain the vault in a prudent and careful manner.

In Nelson v. Godfrey, 12 Ill. 20, suit was brought to recover damages resulting to the plaintiff by reason of an excavation for a coal cellar, made by defendant in the sidewalk in front of his premises on State street, in the city of Alton, through which the water from the gutter of the street passed into the defendant's cellar, and...