Lovenguth v. City of Bloomington.

• Decision Date: 31 January 1874
• Citation: 71 Ill. 238,1874 WL 8649
• Parties: JOSEPH LOVENGUTHv.CITY OF BLOOMINGTON.
• Court: Illinois Supreme Court

71 Ill. 238

1874 WL 8649 (Ill.)

JOSEPH LOVENGUTH

v.CITY OF BLOOMINGTON.

Supreme Court of Illinois.

January Term, 1874.

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Mr. E. M. PRINCE, and Mr. O. T. REEVES, for the plaintiff in error.

Mr. IRA J. BLOOMFIELD, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action, brought in the circuit court of McLean county, by Joseph Lovenguth, against the city of Bloomington, to recover damages for an injury received by a minor son, Emil, in passing over a sidewalk in the city.

The cause was tried before a jury, and a verdict returned in favor of the city. A motion was made for a new trial, and overruled, and judgment rendered upon the verdict. It is insisted that the court erred in overruling plaintiff's motion for a new trial, in giving instructions for defendant and in refusing to give instructions one, two and three for the plaintiff.

It appears, from the record, that Emil Lovenguth, at the time of the accident, was eighteen years of age. He was working in the shops of the Chicago and Alton Railroad Company, and, in passing from the shop to his boarding place, over a defective sidewalk, he stepped upon a loose board, fell and fractured a bone of his ankle. He was well acquainted with the sidewalk, and knew it was in a bad and unsafe condition. Had he so desired, he could have gone over another sidewalk to his boarding place, which was entirely safe and secure, and the distance no greater.

On the trial, the defendant called one Kern as a witness, and he testified, after the accident, he went to see Emil; “he said, when he was hurt, he was going in a hurry--was walking fast.” Also, one Steere, who testified that he “went with Mr. Kern to see Emil, in the spring of 1872. Kern asked him if he was on the run. He said he didn't know exactly. And I asked him if it wasn't a hop and a skip; and he said yes. He said the accident happened by his attempting to step, jump or skip across a place where some planks were out, and caught his foot upon the edge of a board, and, it not being nailed fast, tipped and slipped back.”

Upon the evidence submitted, it was a question for the jury to determine whether the accident occurred from the negligence and want of proper care on the part of the plaintiff's son, or from the neglect of the city to keep in repair a sidewalk.

The jury have found, by their verdict, that the injury received grew out of the negligence and want of proper care of the injured party. It was a question of fact purely for their consideration, and we would not disturb the finding, unless the preponderance of the evidence was clearly the other way, and we are not prepared to say such is the case. It appears this injured party was familiar with this sidewalk and its defects. He knew it was dangerous. Another sidewalk, in good repair and safe, was provided by the city, and if he chose to pass over the dangerous walk, he should have done so in a careful and guarded manner; but this, it appears, he did not do, but in a hasty, reckless manner, went jumping from one board to another, until he fell, and received the injury. The jury could very...