The City of Freeport v. Isbell

• Citation: 25 Am.Rep. 407,1876 WL 6765,83 Ill. 440
• Parties: THE CITY OF FREEPORTv.JOHN T. ISBELL.
• Decision Date: 30 September 1876
• Court: Supreme Court of Illinois

83 Ill. 440

1876 WL 6765 (Ill.)

25 Am.Rep. 407

THE CITY OF FREEPORT

v.JOHN T. ISBELL.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Stephenson county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. H. C. HYDE, and Mr. JOHN C. KEAN, for the appellant.

Mr. J. M. BAILEY, and Mr. J. I. NEFF, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by appellee, against the city of Freeport, to recover damages for an alleged injury received on the sidewalk of the city, on the night of July 1, 1875, caused by a fall from the sidewalk into an excavation under the same, caused, as is alleged, by negligence on the part of the city, in not having the excavation properly barricaded or fenced in such a manner as to protect persons traveling on the sidewalk from falling, in the night-time, in the excavation.

A trial of the cause before a jury resulted in a verdict in favor of appellee, for $6000. Pending a motion for a new trial, a remittitur of $1500 was entered, and the court rendered judgment in favor of appellee for $4500, to reverse which this appeal was taken by the city.

The first error complained of by appellant, which we deem it necessary to consider, is, that the court allowed improper evidence to be given to the jury, tending to prove negligence on the part of appellant, in not having the street where the accident occurred properly lighted with gas, at the time the injury was received.

The evidence introduced tended to show that the street was not lighted; that there was, at the time, a gas main running up through the street; that gas lamp posts were standing along the street, several of which were near the place where the accident occurred; that three lamp posts had been put up as early as 1857, and had been used for two or three years by the city, but they were then abandoned, and, for the past fifteen or sixteen years, the city had not used the gas for the purpose of lighting the streets.

While it is true that, among the powers conferred upon the city council by the charter of the city of Freeport, is one providing “for lighting the streets and erecting lamp posts,” yet it by no means follows that the failure of the city to avail itself of the power conferred, could properly be regarded as an act of negligence, in an action brought by a person who received an injury on the street.

Under the charter, the city had the power, if, in the wisdom of the council, it was deemed for the best interest of the city, to make provision for lighting the streets, but the exercise of that power was left discretionary with the legislative department of the incorporation.

The power conferred was a merely discretionary one, which the city could exercise or not, as it thought best for the interest of the municipality. Cities may have power to erect market houses, and open new streets, yet a failure to do either will create no legal liability, although a private individual may be damaged by non-action on the part of the city. As was said in The City of Joliet v. Verley, 35 Ill. 58, cities are under a political obligation to open such streets and build such market houses as the convenience of...