The City of Chicago v. Scholten

• Decision Date: 30 September 1874
• Citation: The City of Chicago v. Scholten, 75 Ill. 468, 1874 WL 9276 (Ill. 1874)
• Parties: THE CITY OF CHICAGOv.GERHARD SCHOLTEN.
• Court: Illinois Supreme Court

75 Ill. 468

1874 WL 9276 (Ill.)

THE CITY OF CHICAGO

v.GERHARD SCHOLTEN.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

This was an action on the case, brought by Gerhard Scholten, administrator of the estate of Berend Scholten, deceased, under the statute, against the city of Chicago, for causing the death of the intestate, through negligence in respect to the sidewalks of the city. A trial was had before a jury, resulting in a verdict of $2,833.33, upon which judgment was rendered.

Mr. EGBERT JAMIESON, for the appellant.

Mr. D. HARRY HAMMER, and Mr. F. J. SMITH, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought by the administrator, to recover damages resulting to the next of kin, for causing the death of Berend Scholten, which, it is alleged, was caused by the negligent conduct of the city, in not keeping a sidewalk in repair, over which the deceased was about to pass. That the sidewalk was out of repair, and in a most dangerous condition, at the point where Berend was killed, does not admit of a doubt. The deceased was only twelve years of age; and while he and his younger brother were quietly passing along on the sidewalk, it suddenly gave way, precipitating them to the bottom of the vault, injuring the younger, and causing the instant death of the older brother. But whether the city had notice, or could, by the exercise of reasonable diligence, have known of the unsafe and insecure condition of the sidewalk, in time to have caused it to be repaired before the happening of the accident, is purely a question of fact, to be found by the jury. Inasmuch as the present judgment is to be reversed, on account of errors that appear in the instructions, we do not deem it necessary to discuss the evidence on that branch of the case.

The court, at request of plaintiff, instructed the jury, that in case they found the city had been guilty of negligence, in failing to keep its sidewalks in proper and suitable repair, and allowing the same to remain so out of repair, after such condition was known, or ought to have been known, then they have a “right to find for the plaintiff, and should assess the damages at such sum as will, in the judgment of the jury, compensate the plaintiff, and those in whose interest he sues, for the loss of the deceased.”

One reason suggested why this instruction should have been refused is, that it is not based on any evidence in the case. This is a misapprehension of the facts. Where there is any evidence, however slight, it is sufficient to sustain an instruction upon the hypothetical case it tends to prove. As much evidence is contained in this record as was given in The City of Chicago v. Major, 18 Ill. 349, where a verdict for $800 was sustained, for causing the death of a child four years old. The child was too young to have rendered any services to its parents, or next of kin, and all that was proven was the age and relationship. It was said, the jury was authorized to estimate the pecuniary damages, from the facts proven, in...