The City of Bloomington v. Bay

• Decision Date: 31 January 1867
• Citation: 1867 WL 4966,42 Ill. 503
• Parties: THE CITY OF BLOOMINGTONv.JAMES M. BAY.
• Court: Illinois Supreme Court

42 Ill. 503

1867 WL 4966 (Ill.)

THE CITY OF BLOOMINGTON

v.JAMES M. BAY.

Supreme Court of Illinois.

January Term, 1867.

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. JOHN M. SCOTT, Judge, presiding.

The facts sufficiently appear in the opinion of the court.

Messrs. WILLIAMS & BURR, for the plaintiff in error.

Messrs. TIPTON & BENJAMIN, for the defendant in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case brought in the McLean Circuit Court, by James M. Bay against the city of Bloomington, to recover damages for an injury alleged to have been occasioned to the plaintiff, by a defective sidewalk in that city.

The declaration contains five counts, the first alleging that the city, at the time when, etc., and previous thereto, was incorporated, and as such city had the right, under its charter, to build or cause to be built, sidewalks along its streets, to keep the same in repair, etc., and that it did, prior to the 5th day of January, 1866, under and by virtue of its charter, take possession of, and control over, the sidewalk on the east side of East street, between Washington and Front streets, and that on the 9th day of January, 1866, a plank, a part of such sidewalk, was so loosely lying as to make it dangerous for persons to pass along and upon such sidewalk, and avers that the defendant, well knowing, etc., permitted it to remain so, and that on that day plaintiff was passing along such sidewalk with ordinary care, and was then and there necessarily and unavoidably thrown down by the raising of the loose plank above mentioned, and avers that his left wrist was put out of joint, and the large bone fractured, of which he became sick, lame, etc.

The second count is like the first, except it alleges that the place where the injury occurred was a public thoroughfare of the city, and that it was the duty of the city to keep the same safe, and in good order; and then alleges that a plank was loose, so as to make it dangerous, etc.

The third count alleges that the city, on the 27th day of March, 1852, caused this sidewalk, at the place where, etc., to be built, and continued to exercise control over it, until the time when, etc., and that it was the duty of the city to keep the same in repair, etc., averring negligence on the part of the city in not keeping it in repair.

The fourth count alleges that the defendant, before and at the time of the injury, had the care and control of East street, one of the public streets of the city of Bloomington, that there was a public sidewalk on the east side of that street, which the defendant ought to have repaired as often as need or occasion had been or required, so that all persons might safely, and without danger, pass on and along the sidewalk; that the sidewalk was out of repair, several of the boards thereof being loose, and not properly fastened to the same, to the great danger of all persons who might pass on and along the same; that the defendant, well knowing the premises, while it so had the care and control of such street, and while the sidewalk was so out of repair, on the 5th of January, 1866, carelessly and wrongfully suffered and permitted the sidewalk to be and continue, and the same was out of repair, by means whereof the plaintiff, who was passing on and along the sidewalk, and exercising ordinary care for his personal safety, was caught and tripped by the raising of one end of the board, so loose and improperly fastened, the other end of the same board having been stepped upon by another person, passing on and along the sidewalk with ordinary care, and thereby the plaintiff was thrown upon the sidewalk, and his wrist fractured.

The fifth count is, substantially, like the fourth, with the additional averment that the city, while it had the care and control of the street, built or caused to be built, the sidewalk, and thereby became bound by law to repair it, or cause it to be repaired.

The cause was tried by a jury, and a verdict rendered for the plaintiff for four hundred and twenty-five dollars. The defendant entered a motion for a new trial, whereupon the plaintiff remitted two hundred and twenty-five dollars of the verdict, and the court overruled the motion, and rendered judgment for the plaintiff for two hundred dollars, to all which the defendant excepted.

The cause is brought here by writ of error.

The errors assigned question the correctness of the decision overruling the motion for a new trial.

The evidence is all in the record, and fully warrants the finding of the jury, if a liability was established on the part of the city to keep their sidewalk in repair, which is the question now made here upon the record.

The counsel for the plaintiff in error insist there is no such liability upon the corporation, unless it is created by express statute, or under its charter, or from immemorial custom, and if any existed in this case, it must arise under the charter of the city.

It is insisted that the city charter places this liability upon the lot owners abutting the sidewalks.

The charter on this subject gives to the city authorities power to open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues, lanes, and alleys, and to require the owners of any lot or piece of ground to lay a good and substantial sidewalk along any street or alley passing such lot or piece of ground, in such manner as the council may provide. Laws of 1861, page 110, sec. 7.

From this it results, as the plaintiff's counsel contend, that the liability is not on the city, but upon the owner of the lot, and if a party injured has an action against any one, it must be against such owner, and not against the...