Stephani v. Brown

• Citation: 40 Ill. 428,1866 WL 4508
• Parties: JOHN STEPHANI et al.v.ADELIA M. BROWN.
• Decision Date: 30 April 1866
• Court: Illinois Supreme Court

40 Ill. 428

1866 WL 4508 (Ill.)

JOHN STEPHANI et al.

v.ADELIA M. BROWN.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

This was an action on the case brought in the court below by Adelia M. Brown, against John Stephani and Jacob Stephani, to recover for injuries alleged to have been received by the plaintiff by falling through a defective grating placed in the sidewalk by the defendants, adjacent to their premises in the city of Chicago.

It appears that the defendants, without authority from the city, raised the sidewalk several feet above the surface of the street, and excavated under it, and placed in the sidewalk a wooden grating, in front of the window in the building adjoining, to give light and air to the area below. Afterward, the defendants, being the owners of the premises, leased them to a third party, and while the tenant was in possession, the plaintiff, in passing along the sidewalk, stepped upon the grating, which, being defective, gave way, and she was precipitated into the vault below, and was injured thereby.

The plaintiff recovered a verdict for $3,500, and, a new trial being refused, judgment was entered accordingly. The defendants bring the cause to this court by appeal.

Mr. E. F. RUNYON and Messrs. HERVEY, ANTHONY & GALT, for the appellants:

The defendants not being in possession of the premises at the time of the accident, but the same being in the possession, occupancy and control of their tenant, who had occupied the premises for a long time prior to the accident, are not liable for the injuries which the plaintiff received. Scammon v. City of Chicago, 25 Ill. 424.

In the case of Fish v. Dodge, 4 Denio, 318, the court said, in speaking of the liability of a landlord for injuries arising on his premises while in the possession of a tenant: “He cannot be justly charged with the wrong which was actually committed by others, who were not in his employment, unless he knew, or had reason to believe, that he was letting the property for a use which must prove injurious to the plaintiff.”

See also last part of the opinion of the court in case of Pickard v. Collins, 23 Barb. 460, 461. Also Lowell v. Spaulding, 4 Cush. 277.

Same principle in following cases: Hilliard v. Richardson, 3 Gray (Mass.) 349; Linton v. Smith et al., 8 Gray, 147; Clark v. Fry, 8 Ohio St. 358; Boswell et al. v. Laird et al., 8 Cal. 469; Barry v. City of St. Louis, 17 Mo. 121; Morgan v. Bowman, 22 Id. 538; Pawlet v. R. & B. R. R. Co., 28 Ver. 301; Blake v. Ferris, 1 Seld. (N. Y.) 48; McCleney v. Kent et al., 3 Duer, 27; Bingers v. Gray, 50 Eng. Com. Law, 589; Allen v. Hayward, 53 Id. 974; Reedie v. The Railway Co., etc., 4 Exch. 243, 255; Knight v. Fox, 5 Id. 725; Overton v. Freeman, 8 Law and Equity, 480; Peachy v. Rowland, 16 Id. 444.

Messrs. MCALLISTER, JEWETT & JACKSON, for the appellee.

The defendants below having interfered with a public highway without authority, and in a manner which detracted from the safety of travelers, were guilty of an unlawful act, and became the authors of a public nuisance, and are liable in an action at the suit of any person receiving special damage on account of such nuisance, without regard to the question of negligence. Dygert v. Schenck, 23 Wend. 446; Hart v. Mayor, etc., of Albany, 9 Id. 607, and cases there cited; Harlow v. Humiston, 6 Cow. 191; Lansing v. Smith, 8 Id. 152; Cosgrove v. Smith, 18 N. Y. 79, 84; Creed v. Hartman, 29 Id. 591; Davenport v. Ruckman, 10 Bosw. 20; Coupland v. Hardingham, 3 Camp. 298; Scammon v. Chicago, 25 Ill. 438.

The fact, that the defendants had demised the premises before the accident, does not impair the plaintiff's right of action against them. Being the original authors of the nuisance, their demise of the premises whereon the nuisance exists, renders them, in law, guilty of continuing the nuisance. Roswell v. Prior, 2 Salk. 460; Waggener v. Jermaine, 3 Denio, 306; Davenport v. Ruckman, 10 Bosw. 37.

It is claimed that the case of Scammon et al. v. The City of Chicago, 25 Ill. 424, was an authority for appellants' position. We do not understand that case as sustaining any such position, as that the fact of the possession of the premises being in the contractors would have exempted the owners of the building from liability, if the use of the streets had been wrongful. Mr. Justice WALKER, in giving the opinion of the court, says: “The contractors did not pretend to derive any power from appellants to place materials in the street, but, on the contrary, applied to and obtained permission from the city. We are, for these reasons, of the opinion that the true rule in cases of this character is, if the nuisance necessarily occurs, in the ordinary mode of doing the work, the occupant or owner is liable; but if it is from the negligence of the contractor or his servants, that he alone should be responsible.”

If the question of the original wrongful creation of the nuisance by appellants were out of the case, and the premises, sidewalk and opening therein, which were appurtenant to the premises, had got out of repair, and thus become dangerous while the tenant was in the occupation of them, then the doctrine of the counsel might apply. Payne v. Rogers, 2 H. Blackstone, 349. In Cheatham v. Hampson, 4 Term, 320, BULLER, J., says: “With respect to the case of Roswell v. Prior, which is the only case cited of an action of a similar nature maintained against the owner out of possession, it is very distinguishable from the present; for there the owner let the premises with the nuisance complained of, which had before been erected upon them. That, therefore, was a misfeasance of which he himself had been guilty; and, say the court, his demise affirmed the continuance of the nuisance, and therefore might be said to be a continuation of it by himself.” Mr. JUSTICE BREESE delivered the opinion of the Court:

Several points have been made by appellants on this record, and numerous authorities cited, all of which we have examined, and have carefully looked into, and considered all the testimony in the cause, and have come to the conclusion, that the controversy turns upon the unauthorized act of the defendants in raising the sidewalk (so that they might obtain space below it for the use of their premises).

By the charter of the city of Chicago, the streets of the city are under the exclusive control of its municipal authorities, and they are the property of the city, that is to say, the fee thereof is in the city. Leech v. Waugh, 24 Ill. 229. This sidewalk was elevated above the surface of the street several feet, with steps to go down; it was about fifteen feet wide, and a grating was put in in front of the window of the building to give light and air to the area below, and all done by the appellants, the owners of the premises. After the accident, one of the appellants closed up the space, covered by the grate, with boards. This opening or space was about three and one-half feet long, and two and one-half feet wide, and the grate was made of slats, two inches by four, resting, in part, on a joist fastened to the wall of the building.

In the second count of the declaration, appellants are charged with having wrongfully and unlawfully elevated this sidewalk to a great distance above the surface of the street, and with having wrongfully and unlawfully left this opening in it, and placed in it this defective wooden grate for the benefit of the premises. The injury to the plaintiff was caused by falling through this opening, the grate being defective.

The gist of the action consists in elevating the sidewalk and making the excavation under it, and leaving this opening in it covered by this defective grate, without the authority of the city. Without any right so to do, appellants appropriated to their own use a portion of the street, and elevated the sidewalk above its natural surface, and on every principle of law, recognized by courts of justice, they must be held responsible for all the consequences resulting from their act, if not caused by the negligence of the party complaining.

In the case of Cosgrove v. Smith, 18 N. Y. 80, which was in its main features quite similar to this, the court said, it is just that persons who, without special authority, make or continue a covered excavation in a public street or highway, for a private purpose, should be responsible for all injuries to individuals resulting from the street or highway being less safe for its appropriate use, there being no negligence by the party injured. The public were entitled to the use of this street, as it was originally made, and whoever, without special authority, obstructs it, or renders its use hazardous, by doing any thing upon, above or below the surface, is guilty of a nuisance, and, as in all other cases of a public nuisance, individuals sustaining special damage from it, without any want of due care to avoid injury, have a remedy by action against the author or person continuing the nuisance. It is as much a wrong to impair the safety of a street, by undermining it, as by placing objects upon it.

It is shown in this case that appellants were not only the authors of, but they continued the nuisance, and it is not shown that appellee, in the use of the sidewalk, did not exercise proper care. The act of injuring this easement, being illegal, appellants must be answerable. They were bound, at their peril, to make and to keep the street as safe, at all times, as it would have been if the elevation had not been made, and the grating put in, and they were bound to see that the grating, made of wood as it was, had not become decayed and rotten, and unsafe to the passers-by. Other cases are cited by appellee's counsel to the same effect. Dygert v. Schenck, 23 Wend. 446; Hart v. Mayor of Albany, 9 Id. 607; Harlow v. Humiston, 6 Cow. 191; Lansing v. Smith, 8 Id. 152; Creed v. Hartman, 29 N. Y....