The City of Chicago v. Brophy

• Decision Date: 30 September 1875
• Citation: 79 Ill. 277,1875 WL 8615
• Parties: THE CITY OF CHICAGOv.BERNARD T. BROPHY.
• Court: Illinois Supreme Court

79 Ill. 277

1875 WL 8615 (Ill.)

THE CITY OF CHICAGO

v.BERNARD T. BROPHY.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. EGBERT JAMIESON, for the appellant.

Mr. WALTER M. HOWLAND, for the appellee. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by appellee against the city of Chicago, to recover for an injury received on a public street of the city, alleged to have been caused by an obstruction placed in the street by the employees of the city.

A trial was had before a jury, which resulted in a verdict in favor of appellee, for $1500. The court overruled a motion for a new trial, and rendered judgment on the verdict.

Three grounds are relied upon by appellant to reverse the judgment:

1. That the verdict is against the evidence.

2. That the court erred in giving appellee's 3d instruction, and in refusing appellant's instruction No. 4.

3. That the damages are excessive.

The accident occurred on the 20th day of December, 1872, resulting in the fracture of appellee's leg, and otherwise seriously injuring him. About six weeks before the injury, the city had placed a sewer in West Eighteenth street, and, two or three days before the accident, a catch-basin had been placed at the corner of West Eighteenth and Ruble streets, which was connected, by a branch sewer, with the main sewer, which was in the center of the street. The dirt taken from the excavation in constructing the branch sewer was not removed from the street, but it was piled above the sewer, leaving a ridge extending from the catch-basin to the center of the street, from a foot to 18 inches in height. This ridge, the evidence tends to show, could not be seen when the accident occurred, for the reason the street was covered with snow, which was somewhat drifted. Appellee, who was driving a baker's wagon, in the usual course of his business, his team going in a walk, encountered the ridge of dirt. The wagon was turned over and fell upon him, breaking his leg and spraining his ankle.

We see nothing in the evidence from which it can be said appellee failed to use ordinary care and caution in passing over the street. He had been engaged in driving a baker's wagon for several years, and seems to have been a cautious driver. While he was familiar with the condition of that part of the street where the main sewer was constructed, and had passed over it frequently, as we understand the evidence, he did not know the condition of the street where the branch sewer was constructed, and had not had occasion to pass over it, after it had been finished, until the day of the accident. Appellee was not aware of its dangerous condition, and had no reason to suspect it was unsafe.

It was proven, by several witnesses, that the street, in the condition in which it was when the accident occurred, was unsafe and dangerous.

No witness was called to show or explain why the obstruction was left in the street. It is not denied that it is a duty resting upon the city authorities to keep the public streets free from obstructions, and in a safe condition for all who may have occasion to travel over them.

While the city had the undoubted right to construct the sewer in the street, yet, in...