The Vill. of Fairbury v. Rogers

• Decision Date: 14 May 1881
• Citation: 98 Ill. 554,1881 WL 10513
• Parties: THE VILLAGE OF FAIRBURYv.CHARLOTTE C. ROGERS.
• Court: Illinois Supreme Court

98 Ill. 554

1881 WL 10513 (Ill.)

THE VILLAGE OF FAIRBURY

v.CHARLOTTE C. ROGERS.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Livingston county; the Hon. FRANKLIN BLADES, Judge, presiding.

This was an action on the case, by Charlotte C. Rogers against the village of Fairbury, to recover damages for a personal injury sustained from a fall from the sidewalk over a ditch or drain.

The negligence on the part of the city, as claimed, was the maintaining of a crossing of the ditch of so narrow a width as to be dangerous, from which plaintiff fell, in the night time, in February, 1877, using due care at the time. The ditch was about six feet wide and four feet deep. The plaintiff claims to have received severe injury by the fall into this ditch.

On the trial, defendant called as a witness the street commissioner of the village, and asked him whether, in his judgment, the crossing, at the time of the accident, was reasonably safe for ordinary travel and use. On objection, the court refused to allow the question.

There was an instruction numbered 14, asked by the defendant, and refused by the court, and exceptions taken. That instruction is as follows:

“The court instructs the jury, that a municipal corporation is not liable for every mere accident that may occur, and is not bound to respond in damages for every injury that may be received on the public streets or sidewalks within its limits. The obstructions or defects in the streets or sidewalks of a city or incorporated town, to make the corporation liable, must be of such a nature that they are, in themselves, dangerous, or such that a person exercising ordinary prudence can not avoid danger or injury in passing them,--in general, such defects as can not be readily detected.”

The trial resulted in a verdict and judgment in favor of the plaintiff for $1500, which was affirmed by the Appellate Court for the Second District. Mr. R. T. PERRY, and Mr. S. S. LAWRENCE, for the appellant, made, among others, the following points of law:

It was competent to prove by the street commissioner, who was familiar with the ditch and crossing, that the crossing, at the time of the accident, was, in his judgment, reasonably safe for ordinary travel and use. City of Chicago v. Bixby, 84 Ill. 83; Village of Fairbury v. Rogers, 2 Bradw. 99 ; Baird v. Daily, 68 N. Y. 548; Moore v. Westervelt, 27 Id. 234; City of Chicago v. Lavelle, 83 Ill. 483; City of Quincy v. Barker, 81 Id. 301.

Counsel also argued, at some length, that there was error in the giving and refusing of instructions, and that the plaintiff's negligence was such as to prevent a recovery.

Mr. L. E. PAYSON, for the appellee, after stating the facts, discussed at length the liability of the village for negligence, and other questions not passed upon in the opinion.

Mr. CHIEF JUSTICE DICKEY delivered the opinion of the Court:

This is an action by appellee against appellant, in which judgment was rendered for plaintiff for damages, as compensation for injuries received by falling from a...