The City of Joliet v. William E. Henry.

Decision Date31 May 1882
Citation11 Bradw. 154,11 Ill.App. 154
PartiesTHE CITY OF JOLIETv.WILLIAM E. HENRY.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.Opinion filed August 8, 1882.

Mr. E. MEERS, for appellant; that a city is only bound to use ordinary care in keeping its streets and sidewalks in repair, cited City of Centralia v. Krouse, 64 Ill. 19;City of Aurora v. Pulfer, 56 Ill. 276;Griffin v. Major, etc.9 N. Y. 461; Chicago v. Gavin, 1 Bradwell, 302;Chicago v. Bixby, 84 Ill. 85;Chicago v. Murphy, 84 Ill. 224.

If the negligence of the plaintiff contributed to the injury he can not recover unless his negligence was slight, and that of the defendant gross: Grayville v. Whittaker, 85 Ill. 411;C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425;I. & St. L. R. R. Co. v. Evans, 88 Ill. 64

A failure to light the streets is not negligence: Freeport v. Isbell, 83 Ill. 440;Macomber v. Taunton, 100 Mass. 255;Murphy v. Gloucester, 105 Mass. 470;Sparhawk v. Salem, 1 Allen, 30.

As to notice of the defect to the city: Chicago v. Langlass, 66 Ill. 364;Seward v. Joliet, 86 Ill. 402; Dillon on Mun. Corp. § 773.

The burden was upon plaintiff to show due care on his part: Mendota v. Fay, 1 Bradwell, 418;C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 420;Wilds v. H. R. R. Co.24 N. Y. 432;Spalding v. C. & N. W. R. R. Co.33 Wis. 591.

As to what constitutes due care on plaintiff's part: Chicago v. Gavin, 97 Ill. 66;Quincy v. Baker, 81 Ill. 304;C. & A. R. R. Co. v. Gretzner, 46 Ill. 76.

The opinion of a witness that a sidewalk is unsafe is not competent evidence: Fairbury v. Rogers, 98 Ill. 554.

The statute of limitations can not be avoided by amending or adding new counts to the declaration: I. C. R. R. Co. v. Cobb, 64 Ill. 128;Phelps v. I. C. R. R. Co.94 Ill. 548.

Messrs. SNAPP & BRECKENRIDGE, for appellee; that a city must keep its sidewalks free from obstruction and safe, cited Bloomington v. Bay, 42 Ill. 507;Chicago v. Brophy, 79 Ill. 279;Galesburg v. Higley, 61 Ill. 287;Rockford v. Hildebrand, 91 Ill. 157;Chicago v. Fowler, 60 Ill. 323.

Notice to its officers is notice to the city: Aurora v. Dale, 90 Ill. 48;Chicago v. Brophy, 79 Ill. 279;Joliet v. Seward, 99 Ill. 271;Chicago v. Langlass, 66 Ill. 365;Galesburg v. Higley, 61 Ill. 289.

Negligence and due care are questions for the jury: G. W. R. R. Co. v. Haworth, 39 Ill. 353;Hopkins v. I. & St. L. R. R. Co.78 Ill. 33;C. & A. R. R. Co. v. Pennell, 94 Ill. 455;Schmidt v. C. & N. W. R. R. Co.83 Ill. 408;Chicago v. Smith, 48 Ill. 108.

The verdict will not be set aside unless manifestly against the weight of the evidence: Chicago v. Jorgerson, 60 Ill. 201;Galesburg v. Higley, 61 Ill. 292;Chicago v. Garrison, 52 Ill. 517;Jaquin v. Davidson, 49 Ill. 83;Howitt v. Estelle, 92 Ill. 220;Lewis v. Lewis, 92 Ill. 240;Hayes v. Houston, 86 Ill. 487.

Evidence that others fell upon the sidewalk at the same place is admissible: Quincy v. Barker, 81 Ill. 307;Galesburg v. Higley, 61 Ill. 289;Lacon v. Page, 48 Ill. 501.

Expenses in being cured of the injury may be recovered as damages: Chicago v. Jones, 66 Ill. 351.

Torts are divisible, and plaintiff may prove part of his charge and recover, if the tort be established: Hite v. Blandford, 45 Ill. 9;Roth v. Eppy, 80 Ill. 289;I. & St. L. R. R. Co. v. Feheinger, 82 Ill. 130;Howitt v. Estelle, 92 Ill. 218;Lewis v. Lewis, 92 Ill. 237.

PLEASANTS, J.

In this case there was a judgment on the verdict for the plaintiff below for $1,200 damages and the defendant appealed.

The declaration as originally filed contained two counts alike alleging the negligence of the defendant and the cause and manner of the injury to the plaintiff substantially as follows: That the city permitted a sidewalk on Ottawa street to be out of repair and in a dangerous condition, not particularly described, and that by reason thereof the plaintiff passing over and on said street and sidewalk and using due care, unavoidably slipped and fell upon and through it.

Two other counts were afterward added, alike alleging the wrong and injury, in substance as follows:

That the sidewalk was being repaired and the defendant permitted it to be in a condition dangerous to pedestrians without placing sufficient safeguards around it, and that by reason of its being out of repair and not so surrounded, the plaintiff, while passing over and on and along said street and sidewalk, and using due care, slipped and fell, etc.Thus, it is in each count alleged that the injury was received from a fall, the proximate cause of which was a defect in the sidewalk itself.In the first two, the negligence is averred to have been the permission of this condition, and in the last two, the leaving it so without sufficient guards.

It appears that the piece of sidewalk in question was nearly midway between two cross streets, sixty-six feet in length and five or six in width, running north and south.It had been constructed of two-inch plank laid upon stringers, and was close to the ground, which was there generally on a level with the street, but descended toward the sonth, and at that end was considerably lower.

Preparatory to laying down new material on a higher grade, the old, excepting perhaps some pieces of stringer more or less imbedded, had been taken up and placed in piles two or three boards high upon the street, parallel with and near the outer line of the walk, when the work of repairing was arrested by rain.Across the south end and thence north on said outer line, for a distance of ten or twelve feet, some sort of a guard or railing had been erected, but whether it covered the place where plaintiff fell--which is not precisely shown--or was up at that time, are questions upon conflicting testimony on which we deem it unnecessary to express an opinion.

On the street, just outside of the material so piled, some planks were laid for a temporary walk.

The accident occurred shortly after seven o'clock in the evening of Oct. 19, 1877.It was then very dark and raining.Plaintiff had been well acquainted with the street and sidewalk at that place, but did not know that any change in their condition had recently been made.

Having got out of a street car at a passing switch about opposite, he walked rapidly to the sidewalk, expecting to find it as it had been, and seeing nothing of any obstruction, defect or unexpected change in the surface, somehow fell, hurting his knee and striking his breast upon what he supposed was the middle stringer of the old structure remaining in its place.

He does not state that he slipped, as is alleged in each count of the declaration, or that he stumbled, or how he came to fall, but seems to have the impression that it was by stepping from a higher to a lower level.

From his statement nothing is certain as to the...

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