The City of Monmouth v. Sullivan

• Decision Date: 31 December 1880
• Citation: The City of Monmouth v. Sullivan, 8 Ill.App. 50, 8 Bradw. 50 (Ill. App. 1880)
• Parties: THE CITY OF MONMOUTHv.JULIA SULLIVAN.
• Court: Appellate Court of Illinois

8 Ill.App. 50

8 Bradw. 50

THE CITY OF MONMOUTH

v.JULIA SULLIVAN.

Appellate Court of Illinois, Second District.

December Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from Circuit Court of Warren county; the Hon. GEORGE W. PLEASANTS, Judge, presiding. Opinion filed April 6, 1881.

This was an action on the case by appellee against appellant. for injuries alleged to have been sustained by reason of a defective sidewalk. The declaration alleges, amongst other things, that it was the duty of the city where sidewalks “run along by the edge or side, or near to dangerous and deep excavations and deep pitfalls, to erect along the side of such sidewalks adjoining such excavations and pitfalls, a sufficient railing, balustrade or protection, to protect the said public, and the said citizens of Monmouth from falling, or being thrown therefrom.” Also that it was the duty of the city to light and illuminate the walks in the city for the protection and safety of the citizens of the public. It further alleges that on Main street, one of the most public thoroughfares in the city, and near Union Hall, there was a dangerous pitfall, and of the depth of ten feet, entirely unprotected or separated from the walk by any railing, or guard, and without anything to prevent any person passing along the same, from falling or stepping in said pitfall; alleges that the walk and pitfall had been in that condition for years, and that the city had notice of the fact.

The declaration sets forth the injury, as follows: “That by means of the premises, for want of such protection, railing and guards along the side of said sidewalk, and for want of proper lights on account of said dangerous pitfall so left as aforesaid, the said plaintiff, who was then and there passing along the said sidewalk, then and there fell into said pitfall hole, and descent whereby the right arm and both bones thereof of said plaintiff were then and there fractured,” etc.

It appeared upon the trial that on the evening of the 12th of November, 1879, the plaintiff attended a church festival at Union Hall in said city of Monmouth. That about two o'clock in the morning, she having occasion to attend to a call of nature, left the Hall with a young lady companion, and went along the sidewalk some fifty feet, to a vacant space between two buildings, and for the purpose of using the adjoining lot for her necessities, voluntarily stepped off the walk and fell some six feet receiving serious injuries. It further appeared that the walk itself was over thirteen feet wide and in good repair, but no railing was erected at the open space between the buildings, which space was about twelve feet wide.

The plaintiff did not ask any one where to go, although a stranger to the locality, nor did she make any investigation, to determine the height of the sidewalk or the character of the ground below, but acted upon her own judgment, and seeing the open space and the edge of the walk stepped off, knowing she was leaving the line of the walk but supposing the distance to the ground on the inside of the walk was no greater than it was upon the outside.

The plaintiff recovered below, and the city appealed to this court.

Messrs. KIRKPATRICK & HANNA, for appellant, claimed that the allegations and proofs did not correspond, and to show that it was not the duty of the city to so protect its sidewalk as to prevent the injury occurring in the manner it did, cited 1 Saunder's Pl. & Ev. 731; 1 Greenleaf on Evidence, Sec. 63 and 64; Ill. C. R. R. Co. v. Middlesworth, 43 Ill. 64; Ill. C. R. R. Co. McKee, 43 Ill. 119; Guest v. Reynolds, 68 Ill. 478; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 510; T. W. & W. R. Co. v. Jones, 76 Ill. 311; Bloomington v. Goodrich, 88 Ill. 558; Bloomington v. Reed, 2 Bradwell, 542.

That when a city provides a walk that is reasonably safe for use in the ordinary modes for the usual and ordinary purposes it has exercised such degree of care and prudence as relieves it from responsibility: Angell on Highways, Sec. 1; 2 Dillon on Mun. Corporations, Sec. 789; Centreville v. Woods, 57 Ind. 192; Rome v. Dodd, 58 Ga. 238; Craig v. Sedalia, 63 Mo. 417; Bassett v. St. Joseph, 53 Mo. 290; Sherman & Redfield on Negligence, § 391; Com'lth v. Wilmington, 105 Mass. 599; Richards v. Enfield, 13 Gray, 344; Stickney v. Allen, 3 Allen, 374; Stackpole v. Healy, 16 Mass. 33; Norristown v. Moyer, 67 Pa. St. 359; Smith v. Leavenworth, 15 Kansas, 81; Palmer v. Andover, 2 Cush. 601; Lesie v. Lewiston, 62 Mo. 468; Aurora v. Pulfer, 56 Ill. 270; Sherman & Redfield on Negligence, § 402; 1 Addison on Torts, 228; Rowell v. Gray, 100; Shepardson v. Colerain, 13 Met. 55; Kellogg v. Northampton, 4 Gray, 65; Providence v. Clapp, 17 How. 161; Morgan v. City of Hallowell, 57 Me. 375; Stinson v. Gardner, 42 Me. 248.

A person using a sidewalk has the right to presume that it is reasonably safe for ordinary travel throughout its entire width, but he has no right to presume that the ground beyond is on a level with the walk or safe for travel: Raymond v. Lowell, 6 Cush. 525; Forsyth. v B. & A. R. R. Co. 103 Mass. 510; Murphy v. Gloucester, 105 Mass. 470; Smith v. Wendell, 7 Cush, 498; 6 Wait's Action and Defenses, 60; Ill. C. R. R. Co. v. Hetherington, 83 Ill. 510; Ill. C. R. R. Co. v. Godfrey, 71 Ill. 500.

A trespasser cannot recover for an injury unless it is inflicted willfully: Parker v. Portland Pub. Co. 9 Central Law Journal, 108; Sweeney v. O. C. R. R. Co. 10 Allen, 368.

The following additional authorities were cited by appellant upon the points made in his brief: Butterfield v. Forrester, 11 East, 60; Chicago v. McGiven, 78 Ill. 347; Chicago v. Gavin, 1 Bradwell, 302; Sparhawk v. Salem, 1 Allen, 30; Howard v. North Bridgewater, 16 Pick. 189; Smith v. Smith, 2 Pick. 621; Freeport v. Isbell, 83 Ill. 440; Randall v. E. R. R. Co. 106 Mass. 277; Alger v. Lowell, 3 Allen, 402; Gribble v. Sioux City, 38 Iowa, 39; Grayville v. Whitaker, 85 Ill. 439.

Messrs. STEWART, PHELPS & GRIER, for appellee, claimed that if the appellee was negligent, it was only slight negligence, while the negligence of the appellant was gross, and cited the following authorities upon the rule of comparative negligence: C. & A. R. R. Co. v. Hogarth, 38 Ill. 370; C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 482; Cen. R. R. Co. v. Simmons, 38 Ill. 242; C. B. & Q. R. R. Co. v. Pogue, 49 Ill. 499; C. & A. R. R. Co. v. Pondrom, 51 Ill. 333; C. & N. W. R. R. Co. v. Harris, 54 Ill 528.

Appellant was guilty of gross negligence in leaving its sidewalk so long without a railing: Joliet v. Verley, 35 Ill. 589 Bloomington v. Bay, 42 Ill. 503; Springfield v. Le Claire, 49 Ill. 476; Chicago v. Gallagher, 44 Ill. 295; C. B. &. Q. R. R. Co. v. Lee, 87 Ill. 55.

PILLSBURY, J.

The duty is imposed upon a city having control of the streets and sidewalks therein, to exercise reasonable diligence to keep and maintain the same in a reasonably safe condition for the use of those having occasion to use them for any legitimate purpose, such persons exercising at the time ordinary care for their own safety.

And it is only for a neglect to perform such duty, and an injury resulting therefrom, that creates a liability upon the part, of the city, to respond in damages. This liability to a party injured is commensurate only with the duty owing to such person at the time, and under the circumstances existing when the injury was sustained. The owner of premises, who, by his procurement or invitation expressed or implied, induces another to enter thereon, impliedly warrants that the premises are reasonably safe for the protection of the person thus acting upon such invitation, if he exercises ordinary care upon his part, and in the use of the premises confines himself to the purpose for which they appear to be designed and adapted.

The person thus entering upon premises, presumably prepared for his use as well as others, and appearing to be adapted to the purposes...