Payne v. Irvin

• Decision Date: 31 March 1893
• Citation: 33 N.E. 756,144 Ill. 482
• Parties: PAYNE et al. v. IRVIN.
• Court: Illinois Supreme Court

144 Ill. 482

33 N.E. 756

PAYNE et al.

v.IRVIN.¹

Supreme Court of Illinois.

March 31, 1893.

Appeal from appellate court, first district.

Action on the case, brought by James Irvin against Leroy Payne, William B. Fowler, and Freeland B. Caldwell, for personal injuries caused by the fall of a signboard. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendants appeal. Affirmed.

George F. Westover, for appellants.

Weigley, Bulkley & Gray, for appellee.

SHOPE, J.

Counsel for appellants, in his brief filed in this court, says: ‘I admit that the sole question before this court is whether, as a matter of law, the facts in proof will support the verdict.’ On the trial appellants asked, and the court refused, an instruction requiring the jury to return a verdict for the defendants; and thereby the court was asked to say, as a matter of law, that the facts proved, with all the inferences legitimately arising therefrom, were insufficient to sustain a verdict for appellee. Under this state of case, the question presented for our consideration is whether there was evidence tending to establish a right of recovery. The weight and credit to be given the evidence was within the province of the jury, and they having found for plaintiff, and the finding having been approved by the trial and appellate courts, we are not permitted to enter that domain, but are confined to the simple question of whether there was evidence from which the jury might legitimately have so found. Appellants rely in this court, chiefly, upon two grounds: (1) It is said that no negligence is attributable to appellants; and (2) if negligence is chargeable to them, that appellee was guilty of negligence contributing to the injury, and therefore cannot recover.

On the 11th day of June, 1888, a signboard 4 or 5 feet wide, and about 60 feet long, was blown from a one-story building on Michigan avenue, in Chicago, striking appellee, and seriously injuring him. Appellee was the tenant of appellant Leroy Payne of a room in said one-story building, of 25 or 30 feet front, and 50 or 60 feet deep, and used by him (appellee) as a blacksmith shop. The sign in question extended on top of the front wall of said one-story building, and over the entire part occupied by appellee. The evidence tended to show that the renting by appellee was of the room, from year to year, at a monthly rental. It also tended to show that appellee and his partner were to put the room in repair for the uses to which they designed it. It pretty clearly appears that nothing was said about who should keep the roof and the outside of the building in repair. It was, however, understood between the parties that the tenants desired to use no part of the signboard, and that it was appropriated by the landlord, who had painted thereon a sign advertising his business, carried on in the residue of that building and an adjoining one. The jury were justified in finding from the conduct of the parties that it was a renting of the room, only. By the agreement the tenants were given the right to extend upward a chimney above the roof, etc. The renting was in 1884, and the landlord, during the intervening years prior to the injury, on different occasions, repaired the roof, put glass in the skylights, etc., without consulting the tenants. The tenants at no time assumed or exercised any control over the building, other than in the room which they occupied. The jury were instructed, at the instance of appellants, that, unless they found that it was understood between the parties that the landlord was to keep the building in repair, they must find for the defendants. We are of opinion that there was ample evidence, derived from the conduct of the parties, that such was the understanding. There was no renting of the signboard, or of the roof of the building, or any agreement on the part of the tenants to...