Kepperly v. Ramsden

• Decision Date: 30 September 1876
• Citation: Kepperly v. Ramsden, 83 Ill. 354, 1876 WL 10347 (Ill. 1876)
• Parties: JACOB KEPPERLYv.JANE RAMSDEN.
• Court: Illinois Supreme Court

83 Ill. 354

1876 WL 10347 (Ill.)

JACOB KEPPERLY

v.JANE RAMSDEN.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. JOHN W. COCHRAN, Judge, presiding.

This suit was originally brought against defendant, Kepperly, and four other persons, contractors and sub-contractors on defendant's building, to recover damages sustained by plaintiff in consequence of falling into an excavation in the sidewalk made with a view to construct coal vaults for the use of the adjoining building. On the 27th day of July, 1874, plaintiff was passing in front of the building, leaning on the arm of her sister, when she stepped on the edge of the excavation, which gave way, and precipitated her to the bottom of the vault. Her husband, who was walking just behind her with a lady friend, immediately rescued his wife, and took her home. Neither her sister nor her friend seem to have thought any assistance was necessary, nor did either go with her or offer to render her any. The accident occurred between 8 and 9 o'clock in the evening. All the street lamps in the immediate vicinity were lighted, and, with the lights in a building near at hand, they cast considerable light on the place where the accident occurred. There was dirt and rubbish on the sidewalk, sufficient to attract the attention of any one passing that way, but no guards had been erected by the owner of the building or the workmen employed. Plaintiff's sister, with whom she was walking, seems to have been walking in the gutter of the street pavement, and plaintiff says, when she found she was falling, she let go her sister's arm, that she might not pull her down with her. As to the extent of the injuries sustained, the evidence is conflicting. An ordinance of the city of Peoria, where the accident happened, made it unlawful for any person to make any excavation in any street or sidewalk, without permission in writing from the city engineer, and provided any person who shall dig any hole, pit, ditch, vault or other excavation, and who shall not, during the night, cause the same to be fenced with a substantial fence, at least three feet high, should be subject to a fine.

Plaintiff let the carpenter and brick work of repairing his building, to Comegys, and the latter contracted with Coleman and Parish to do the brick-work, and they employed Cornell to do the digging. The labor of taking out the old wood-work, roofing and some other things, was to be done by defendant. Evidence introduced tends to show each contractor had such possession as was necessary to enable him to prosecute with facility the work he had contracted to do.

The case has been twice tried before a jury. On the first trial, the jury found defendants not guilty, except the owner of the building, and assessed plaintiff's damages against him at $2000. That verdict was set aside, and a new trial awarded. On a second trial, the jury found defendant guilty, and assessed plaintiff's damages at precisely the same amount. Defendant brings the case to this court on appeal.

Mr. N. E. WORTHINGTON, and Messrs. COOPER & BASSETT, for the appellant.

Messrs. PUTERBAUGH, LEE & QUINN, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The damages found for plaintiff are excessive, and out of all proportion to any injury sustained. Principally, she complains her health has been impaired by “falling of the womb,” which she alleges was caused by falling into an excavation in front of defendant's building. No other serious permanent injury is proven. It is a singular fact, in the original declaration, the only specific injury alleged was to plaintiff's leg. The infirmity which now so seriously affects her, was not mentioned among the injuries sustained, nor did she or her attending physician, in their testimony on the first trial, which did not take place for months after the accident, make the slightest allusion to the fact she was suffering from any such weakness. Testimony of two witnesses, whose characters are in no way impeached, show she suffered severely from local debility long before she was injured by the fall. But as the judgment is to be reversed because of the refusal of the court to give proper instructions, we will not now discuss the merits of the case.

Before any recovery can be had, it is incumbent on plaintiff to show she had herself been in the observance of due care for her personal safety. That being the law, the court ought to have given the third instruction asked by defendant, which declares the burden of proving that fact was upon her. Other instructions given state the proposition she was bound to observe due or ordinary care, but none of them declare as the law is, the burden of proving that fact is on the...