The City of Chicago v. Mcgiven

• Decision Date: 30 September 1875
• Parties: THE CITY OF CHICAGOv.CAROLINE MCGIVEN.
• Court: Illinois Supreme Court

78 Ill. 347

1875 WL 8487 (Ill.)

THE CITY OF CHICAGO

v.CAROLINE MCGIVEN.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. T. LYLE DICKEY, and Mr. FRANCIS ADAMS, for the appellant.

Messrs. HERVEY, ANTHONY & GALT, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This is an appeal from a judgment against the appellant, the city of Chicago, rendered in the Superior Court of Cook county, in an action on the case, brought by Caroline McGiven against the city.

The declaration alleges that, on the evening of December 24, 1873, the plaintiff, while walking on the sidewalk in front of No. 511 Wabash avenue, in the city of Chicago, stepped on a piece of glass which was inserted in the walk, slipped, fell, and sustained injuries, etc.

It is insisted by appellant, the court below erred in admitting improper evidence for the plaintiff.

It appears from the evidence that a piece of glass, some 22x24 inches--a heavy piece of plate glass--was inserted in the sidewalk, the surface of the glass being even with the surface of the surrounding walk. The glass was placed in the sidewalk for the purpose of affording light to the area under the same. On this glass it is alleged that appellee slipped and fell. A number of witnesses were produced by the plaintiff, who gave testimony tending to show that the piece of glass was smooth, slippery, etc. Appellant admits that such testimony, as to the actual condition, etc., of the glass, was proper, and it was not objected to. But the plaintiff, besides, produced a number of architects, and against the objections of the defendant, which were overruled by the court, examined these architects as experts, and proved by them that, in their opinion, a glass, such as that which the evidence showed was inserted in the sidewalk at No. 511 Wabash avenue, was unfit to be used as a part of the walk, and was unsafe for such use.

It is the admission of such opinions in evidence, to which the objection is taken.

The general rule is, that the opinions of witnesses are inadmissible as evidence; that they are to testify to facts, and the jury are to draw the inferences and form the opinions which are to govern the case. The present case is supposed to come within the exception to the rule, that, on questions of science, skill or trade, or others of the like kind, persons of skill, sometimes called experts, are permitted to give their opinions in evidence. But this is on the ground of necessity, when the facts in issue are not themselves accessible by evidence, and it is a matter of necessity to call in the experienced or instructed opinion of such witnesses.

The opinions of witnesses should not be received as evidence, where all the facts on which such opinions are founded can be ascertained and made intelligible to the court or jury. Clark v. Fisher, 1 Paige, 174; Mayor, etc., of New York, v. Pentz, 24 Wend. 668; Linn v. Sigsbee, 67 Ill. 75.

Why was not the glass here, safe? Because of the slipperiness of its surface, especially when there was a little snow upon it.

The question whether the glass was unsafe, by reason of the too great smoothness or slipperiness of its surface, was not a question of science or skill. The decision of that question required no special knowledge, and it was easily determinable by the jury, upon a sufficient description of facts pertaining to the glass, and the use of it in a sidewalk, being given by witnesses. We do not perceive why mere proof of the naked facts could not enable the jury themselves to draw the inference whether the glass was safe or unsafe.

The real question for the jury was, not whether the glass was safe, but whether it was reasonably safe. The not improbable effect of obtruding upon the jury the opinions of these architects, that the glass was unsafe, might be that the jury would regard them as deciding the whole question, and so accept them, and repose on them as such, without further inquiry and deciding for themselves, whether the sidewalk might not have been reasonably safe. Chicago and Alton Railroad Company v. Springfield and Northwestern Railroad Company, 67 Ill. 143.

We think these opinions should have been excluded.

Another point urged by appellant for the reversal of the judgment is, that the counsel for the plaintiff, in the argument to the jury, was permitted by the court, against the objection of the defendant, to refer to and read to the jury from adjudged cases of a similar character. The bill of exceptions shows that counsel thus read to the jury from two pages of one opinion, and read pages of two other opinions in cases decided, two of them by this court, and the other by the Supreme Court of another State. This was a deliberate violation of the rule which has heretofore been laid down by this court upon the subject. Tuller v. Talbot, 23 Ill. 357; Sprague v. Craig, 51 Ill. 289.

It was there laid down as the correct practice in civil cases, never to permit counsel to read authorities to the jury; that it was for the court to instruct the jury as to what the law is which governs the case, and not for the jury to determine it for themselves, by having law books read to them--that they must take the law from the court. But counsel say that reference was made to the cases only by way of illustration, and...