The City of Aurora v. Hillman

• Decision Date: 30 September 1878
• Citation: 1878 WL 10108,90 Ill. 61
• Parties: THE CITY OF AURORAv.JOSEPH HILLMAN.
• Court: Illinois Supreme Court

90 Ill. 61

1878 WL 10108 (Ill.)

THE CITY OF AURORA

v.JOSEPH HILLMAN.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. HIRAM H. CODY, Judge, presiding.

Mr. A. E. SEARLES, for the appellant.

Mr. A. J. HOPKINS, for the appellee.

Mr. JUSTICE BAKER delivered the opinion of the Court:

This was an action on the case, prosecuted by appellee against the City of Aurora, in the Kane circuit court, to recover damages for injuries occasioned by a fall on a sidewalk on South River street, in said city. At the October term, 1876, of the court, a trial was had before a jury, which found a verdict in favor of appellee, and assessed his damages at $768.75. A judgment was entered on this verdict, from which the city appealed.

About six o'clock on the evening of August 31, 1874, appellee and one Moreau quit their work, on River street, and started to return to their homes, on Railroad street. They were walking side by side on the sidewalk in question, when Moreau put his foot on a loose plank in the walk, and it tipped up, and appellee's foot went into the hole, which was about seven inches deep, and he fell and sustained severe injuries.

While it is true the evidence failed to affirmatively show this particular plank had been loose for any considerable length of time, yet it does show, beyond any controversy, it was either loose on that evening or in such a condition that it was loosened by being stepped on by Moreau. It further shows the sidewalk was laid on two stringers or bearings, which stringers were rotten, so much so that they would not hold nails or spikes, and that this was their condition at the particular place where the accident happened. The planks on the walk projected over these rotten bearings some three or four inches, so that if two persons were walking together on the walk, and one stepped a little quicker than the other, and placed his foot near the end of a plank, it would throw up the opposite end of the plank and trip his companion as he moved his foot forward. Several witnesses testify the plank was loose at the spot where appellee was hurt, and they were not contradicted. The assumption that the only defect in the sidewalk at the place of the injury was that this one plank was loose, is not justified by the testimony. The primal defect, and that which caused the boards to become loose, was, that the stringers were decayed and would not hold nails, and this had been their condition for a long time. Many of the witnesses say that the walk had been bad for years. After the lapse of so considerable a time, notice of the defective state of the sidewalk will be presumed. The street commissioner, who had control of this and other sidewalks, swears he knew it was bad, and, moreover, the evidence shows the city council was expressly notified of its condition. The city authorities, then, not only had presumptive but actual notice of the defects in this walk, and had ample time to have it repaired, but failed to do so, and were guilty of negligence.

It is also claimed by appellant, that appellee was guilty of a degree of contributory negligence which will prevent his recovering. The sidewalk was intended for foot passengers, and the carriage-way in the street was intended for horses and vehicles. It is true, pedestrians would have a right to cross over the street or road, and their right to do so, at least at the usual street crossings, would be equal to that of persons with teams to drive along the street, and cities are bound to keep such crossings in a safe condition; but we are not prepared to hold, a pedestrian has an equal right with one who drives a carriage to travel in and along the driveway of a public street, or that a city is under any obligation to keep such driveway, longitudinally, in a fit and safe condition for pedestrians. We assuredly can not hold appellee was guilty of negligence in not taking the middle of the street. Had he done so, a driver would have been liable if he had wilfully or negligently driven over him, but a relatively higher degree of care would have been required of the pedestrian, and, so far as the city is concerned, it would have assumed but little, if any, responsibility for his safety.

Nor does the mere fact the plaintiff might have taken a better and safer sidewalk than the one he did take, charge him with want of ordinary care. He traveled the usual and most direct route to and from his work. In Lovenguth v. City of Bloomington, 71 Ill. 238, the plaintiff not only knew the sidewalk was in an unsafe condition, but there was another sidewalk to his boarding place which was entirely safe and secure, and the distance was no greater, and then he attempted to get over a place where some planks were gone and others were loose, with a skip or jump. The court said in that case: “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 plaintiff, or from the neglect of the city to keep in repair a sidewalk.”

The point made, that appellee and Moreau, or at least Moreau, were or was intoxicated, is not warranted by the evidence. The fact appellee had that evening gone to a public house near where he worked and got his dinner bucket filled with ale for his sick wife, who was drinking that beverage by order of her physician, as a stimulant, and the further fact that he himself drank one glass of beer while there, will hardly justify the conclusion he was drunk; nor would the fact he went home from his work with a fellow-workman who, four or five hours before, and prior to his afternoon's labors, had drank three or four glasses of ale, be any proof, in and of itself, of a want of reasonable care on the part of appellee. The men themselves testify they were walking carefully, and there is nothing in the record to contradict them. Besides, the jury were the judges of the fact, and they found, by their verdict, appellee was exercising proper care, and that the injury received grew out of the negligence of the city in not keeping the sidewalk in proper repair, and we would not disturb such finding unless it was clearly against the evidence.

On the trial, the court refused to permit one of the witnesses for the city to answer this question: “State whether or not, from what you saw, Hillman and Moreau, or either of them, was under the influence of liquor at that time?” The fact of these men being intoxicated was a material one, as showing, or tending to show, want of ordinary care on the part of the plaintiff. Illinois Central Railroad Co. v. Cragin, 71 Ill. 177; City of Rock Island v. Vanlandschoot, 78 Id. 485. But it was not error to sustain the objection to the question, as the same witness had just answered he could not swear as to the...