Hogan v. City of Chicago

• Decision Date: 08 November 1897
• Parties: HOGAN v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

168 Ill. 551

48 N.E. 210

HOGAN

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Nov. 8, 1897.

Error to appellate court, First district.

Action by Anna Hogan against the city of Chicago. From a judgment of the appellate court (59 Ill. App. 446) reversing a judgment for plaintiff, she brings error. Reversed.Wing, Barge & Leach, for plaintiff in error.

Roy O. West, B. F. Richolson, and W. E. Caylor, for defendant in error.

This is an action on the case, brought by the plaintiff in error against the defendant in error to recover damages for a personal injury. Verdict and judgment in the trial court were in favor of plaintiff in error. An appeal was taken from this judgment to the appellate court. The appellate court reversed the judgment of the circuit court without remanding the cause. The present writ of error is sued out from this court for the purpose of reviewing the judgment of the appellate court. The declaration alleges that defendant was a body corporate under the laws of this state, and as such had control of the streets within its limits; that there then was a street in the city called ‘Ogden Avenue,’ along the southerly portion of which, between Western avenue and Rockwell street, was a sidewalk at a great height above the ground, and extending from the end of the sidewalk to the ground there was a plank, which the defendant carelessly and negligently permitted to be and remain loose and without any fastening; that when plaintiff, while exercising due care, was passing over this plank, it fell, and she was thrown to the ground, her head and spine being thereby injured, and that she suffered permanent physical and mental injuries. The first count alleges that defendant was, at the time, rebuilding this sidewalk. The second count avers that defendant knowingly permitted the walk to be in the condition described. The third count alleges that the walk had been in this condition for about four weeks, and was left that way by defendant. The additional count avers that the defendant carelessly and negligently permitted the walk to be in this condition. The defendant pleaded the general issue. The following statement is taken from the brief of defendant in error: ‘Some time during the year of 1890, Mr. Altpeter, who owned three lots at the southwest corner of Western avenue and Ogden avenue, built a sidewalk along the front of his lots, which sidewalk was about sixteen feet wide, built of planks, and extended west of Western avenue the width of his three lots, or about seventy-five feet. This is the sidewalk in question. The height of this walk above the ground at its westerly end was about three feet six inches. Along the inner or lot side of this plank walk he built a railing or fence about three feet six inches in height, consisting of uprights 4x4. A railing 2x4 was nailed on top of these uprights, and between that and the walk a 2x6 board was nailed. This railing extended westerly to the end of this new sidewalk. From the end of this new sidewalk southwest to the railroad tracks, and along the southerly line of Ogden avenue, was a board sidewalk about six feet wide, lying flat upon the ground. A plank was used at that point to go from one walk to the other. A curb wall was built up, and the roadway was filled in as far west as this new sidewalk extended on Ogden avenue. This was the situation of affairs there from 1890 until work was commenced in Ogden avenue for the erection of a large viaduct over the railroad tracks which crossed Ogden avenue between Western avenue and Rockwell street. This work was commenced either in the latter part of March or the first part of April, 1891. The point in Ogden avenue at which this work was begun upon and for this viaduct, which was erected by the city, was from six to ten feet west of where this higher sidewalk ended. Plaintiff's evidence shows that for two or three months prior to the 5th day of August, 1891, when plaintiff fell, a certain plank was used by the public in passing from this new and higher sidewalk down upon the old sidwalk which lay upon the prairie, and from that lower walk up onto this higher walk; and that, when plaintiff attempted to go down that plank from this higher walk to the ground (the old walk having been removed when work was begun, to make room for the retaining walls), the plank slipped off from this new or higher walk, causing her to fall to the ground, whereby, it is claimed, she sustained injuries above complained of.’ The judgment of the appellate court is as follows: ‘On this day came again the said parties, and the court, having diligently examined and inspected, as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, are of the opinion that in the record and proceedings aforesaid, and in the rendition of the judgment aforesaid, there is manifest error. Therefore it is considered by the court that for that error, and others in the record and proceedings aforesaid, the judgment of the circuit court of Cook county in this behalf rendered be reversed, annulled, set aside, and wholly for nothing esteemed; and this court finds that the said appellee was injured while attempting to go down from a sidewalk in said city to the ground below by means of a loose plank, placed there by a person unknown, and that the appellant had never undertaken to furnish any means of descending from said sidewalk, and was, therefore, under no duty as to the safety of the means which the appellee adopted; wherefore this cause is not remanded.’ Then follows a further finding that appellee pay the costs.

MAGRUDER, J. (after stating the facts).

In this case the appellate court has rendered a judgment in which it makes certain recitals, and reverses the judgment of the circuit court without remanding the cause. The only statutory provision which authorizes the appellate court to make a recital of facts in a judgment entered by it is section 87 of the practice act, which has been so often under consideration by this court. That section provides that, if any final determination of any cause is made by the appellate court ‘as the result wholly or in part of the finding of the facts concerning the matter in controversy different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such appellate court to recite in its final order, judgment or decree, the facts as found, and the judgment of the appellate court shall be final and conclusive as to all matters in controversy in such cause.’

1. The recital of facts by the appellate court in its judgment is only authorized by section 87 when its finding, either wholly or in part, of the facts concerning the matter in controversy, is different from the finding of the trial court. In Hawk v. Railroad Co., 147 Ill. 399, 35 N. E. 139, we said: ‘It is the duty of the appellate court to review the facts, as well as questions of law.’ In Siddall v. Jansen, 143 Ill. 537, 32 N. E. 384, we said, quoting from the case of Brown v. City of Aurora, 109 Ill. 165: ‘The appellate court, when it differs from the conclusion reached by the trial court, is required to recite in its final order the facts as found.’ In the same case of Siddall v. Jansen, supra, quoting from the case of Coalfield Co. v. Peck, 98 Ill. 140, we said: ‘If the facts are held by the appellate court to be different from the finding in the circuit court, that court may, of course, found its judgment upon such different finding, and the facts so found must be recited in the judgment.’ Where the appellate court reaches the same finding of facts as the trial court, it must affirm the judgment of the latter court, unless it finds that there was some erroneous ruling upon a question of law. In Coalfield Co. v. Peck, supra, we said: ‘If the facts be found by the appellate court in accord with the finding in the circuit court, the judgment of the circuit court should be affirmed.’ This language was quoted with approval in Siddall v. Jansen, supra; and in the latter case, referring to the case of Hayes v. Insurance Co., 125 Ill. 627, 18 N. E. 322, we further said: ‘As respects the third count, there being no special finding, in the absence of a special finding it would be presumed that the appellate court found the same way that the trial court had found; and, as the evidence was sufficient in the trial court to sustain the third count, it was error in the appellate court not to have affirmed the judgment of the circuit court.’ In line with the case thus referred to, it was said, in the very recent case of Huntington v. Metzger, 158 Ill. 272, 41 N. E. 881, that, if the appellate court ‘had made the same finding of the facts in regard to the matter in controversy as was made by the trial court, it was unnecessary to recite in its judgment the facts as found by it, because the statute only providesfor such a recital in case of a different finding, and not where there is the same finding.’ In the light of these views, it cannot be said that the judgment of the appellate court in this case recites a different finding of facts from that made by the circuit court. It recites only two facts, and then draws from those facts a conclusion of law as to the duty of the city in a certain particular. The facts recited are: First, that plaintiff in error was injured while attempting to go down from a sidewalk in said city to the ground below by means of a loose plank, placed there by a person unknown; and, second, that the defendant in error had never undertaken to furnish any means of descending from said sidewalk. The judgment of the circuit court awarding damages to plaintiff in error was perfectly consistent with a finding of both of these facts to be true. Here was a part of a public sidewalk, which came to an abrupt termination at a distance of three feet and six inches from the balance of the...