The Vill. of Warren v. Wright

Citation3 Ill.App. 602,3 Bradw. 602
PartiesTHE VILLAGE OF WARRENv.JOHN W. WRIGHT.
Decision Date31 December 1878
CourtUnited States Appellate Court of Illinois
OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Jo Daviess county; the Hon. JOHN V. EUSTACE, Judge, presiding. Opinion filed May 2, 1879.

Mr. J. W. LUKE, for plaintiff in error; that the allegations and proof must correspond, cited Moss v. Johnson, 22 Ill. 633; Ill. Cent. R. R. Co. v. McKee, 43 Ill 19; City of Bloomington v. Goodrich, 10 Chicago Legal News, 353.

A city is only bound to see that its sidewalks are reasonably safe: City of Chicago v. McGiven, 78 Ill. 347; City of Rockford v. Hildebrand, 61 Ill. 155; City of Quincy v. Barker, 81 Ill. 300.

Cities are liable only where the authorities know or by reasonable diligence may ascertain, that the sidewalks are out of repair, and when sufficient time has elapsed after notice, to make the necessary repairs: City of Peru. v. French, 55 Ill. 317; City of Chicago v. Scholten, 75 Ill. 468; City of Chicago McCarthy, 75 Ill. 602.

Where the city did not construct the sidewalk, notice of its defect is requisite to create a liability: City of Rockford v. Hildebrand, 61 Ill. 155.

The mere non-feasance of a city in respect of such repairs, cannot be charged as willful neglect, so as to raise a liability for more than compensatory damages: City of Decatur v. Fisher, 53 Ill. 407; City of Chicago v. Langlass, 52 Ill. 256.

A judgment will be reversed when there is no evidence to sustain a verdict, or when it is manifestly against the weight of evidence: Reynolds v. Lambert, 69 Ill. 495; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Smith v. Slocum, 62 Ill. 354; City of Rock Island v. Vanlandschoot, 78 Ill. 485; City of Chicago v. McCarthy, 75 Ill. 602.

Instructions should be consistent, and present the law of the case accurately: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550; Ill. Cent. R. R. Co. v. Maffit, 67 Ill. 431; C. & A. R. R. Co. v. Mock, 72 Ill. 141.

Messrs. D. & T. J. SHEEAN, for defendant in error; upon the question of the duty of a city to keep its sidewalks in repair and liability for neglect, cited City of Bloomington v. Bay, 42 Ill. 503; City of Joliet v. Verley, 35 Ill. 58; 42 Ill. 507; Schmidt v. N. & W. R. R. Co. 83 Ill. 405.

As to notice of defect: City of Rockford v. Hildebrand, 61 Ill. 155; City of Springfield v. Doyle, 76 Ill. 202; Alexander v. Mt. Sterling, 71 Ill. 366.

As to setting aside a verdict where the evidence is conflicting, but not palpably against the weight of evidence: Carrigan v. Hardy 46 Ill. 502; Sherman v. C. &. M. R. R. Co. 48 Ill. 523; Belden v. Innis, 84 Ill. 78; C. & N. W. R. R. Co. v. Dement, 44 Ill. 74; Baker v. Robinson, 49 Ill. 299; Ehrich v. White, 74 Ill. 481; Melburn v. Schurin, 49 Ill. 69; Jacquin v. Davidson, 49 Ill. 82; Powell v. Feeley, 49 Ill. 143; Lalor v. Scanlan, 49 Ill. 152; C. F. R. & B. Co. v. Jameson, 48 Ill. 281; Bunker v. Green, 48 Ill. 243; C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; C. & G. E. R'y Co. v. Vosburg, 45 Ill. 311; Allan v. Payne, 45 Ill. 339; Cadwell v. Sherman, 45 Ill. 348; Bruce v. Am. Ex. Co. 50 Ill. 201; Kuhnen v. Blitz, 56 Ill. 171; Chicago City R'y Co. v. Young, 62 Ill. 238; Bourne v. Stout, 62 Ill. 261; C. R. I. & P. R. R. Co. v. Reidy, 66 Ill. 43; DeClurg v. Mungin, 46 Ill. 112; Chapman v. Stewart, 63 Ill. 332; O'Reiley v. Fitzgerald, 40 Ill. 310; McCarthy v. Mooney, 49 Ill. 247; Young v. Bush, 48 Ill. 42; Neustadt v. Hall, 58 Ill. 172; Presb. Ch. v. Emerson, 66 Ill. 269; Chicago v. Garrison, 52 Ill. 516; Plummer v. Rigdon, 78 Ill. 222; Miller v. Balthasser, 78 Ill. 302; Wallace v. Wren, 32 Ill. 146; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; O'Brien v. Palmer, 49 Ill. 72.

The verdict will not be disturbed even when against the weight of evidence, and such weight does not depend upon the number of witnesses: C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; Ill. Cent. R. R. Co. v. Gillis, 68 Ill. 317; Bishop v. Busse, 69 Ill. 403.

It is for the jury to give credit to such witnesses as they may believe: Crain v. Wright, 46 Ill. 107; Wood v. Hildreth, 73 Ill. 525; Holcomb v. Tuttle, 79 Ill. 409; Foos v. Sabin, 84 Ill. 565; Dunning v. Fitch, 66 Ill. 51; Robinson v. Parish, 62 Ill. 130; Bishop v. Busse, 69 Ill. 403; Wiggins Ferry Co. v. Higgins, 72 Ill. 517.

If substant al justice has been done the verdict will not be set aside: Smith v. Schultz, 1 Scam. 490; Gillett v. Sweat, 1 Gilm. 475; Greenup v. Stoker, 3 Gilm. 202; Underhill v. Fake, 46 Ill. 50; Hall v. Lincoln, 46 Ill. 52.

Where the evidence is so conflicting as to leave the question of right uncertain, the verdict will not be disturbed: Evans v. Fisher, 5 Gilm. 569; Pullian v. Ogle, 27 Ill. 189; St. Louis R. R. Co. v. Gilham, 39 Ill. 455; Stevens v. Brown, 58 Ill. 289; Chapman v. Burt, 77 Ill. 337.

Even though the Appellate Court would be better satisfied if the verdict had been the other way: Bloom v. Crane, 24 Ill. 48; Scarritt v. Carruthers, 29 Ill. 487; Voltz v. Stephani, 46 Ill. 54; Varner v. Varner, 69 Ill. 445.

Upon the question of damages: Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242; Chicago v. Fowler, 60 322; Chicago v. Langlass, 66 Ill. 361; City of Galesburg v. Higley, 61 Ill. 287; N. L. Packet Co. v. Bininger, 70 Ill. 571; Ill. Cent. R. R. Co. v. Ebert, 74 Ill. 399; Peoria Bridge Co. v. Loomis, 20 Ill. 236; Frink v. Schroyer, 18 Ill. 416; Chicago v. Jones, 66 Ill. 349; Moore. v. A. & S. R. R. Co. 10 Barb. 623; P. C. & St. L. R. R. Co. v. Thompson, 56 Ill. 138.

That erroneous instructions will not always be ground for a reversal: Howard F. &. M. Ins. Co. v. Cornick, 24 Ill. 455; Hardy v. Keeler, 56 Ill. 152; Curtis v. Sage, 35 Ill. 22; Watson v. Wolverton, 41 Ill. 241; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Chicago v. Hesing, 83 Ill. 204; Hazen v. Pierson, 83 Ill. 241; Foster v. C. & A. R. R. Co. 84 Ill. 164; McConnell v. Kibbe, 33 Ill. 177; Thompson v. Force, 65 Ill. 370; Hewitt v. Jones, 72 Ill. 218; Dishon v. Schorr, 19 Ill. 59; Elam v. Badger, 23 Ill. 498; N. E. F. & M. Ins. Co. v. Wetmore, 32 Ill. 223; Hall v. Groufe, 52 Ill. 421; Ryan v. Donnelly, 71 Ill. 101; Pierce v. Hasbrook, 49 Ill. 25; Town of Vinegar Hill v. Busson, 42 Ill. 45; Gilchrist v. Gilchrist, 76 Ill. 281; Warren v. Dickson, 27 Ill. 115; Morgan v. Peet, 32 Ill. 281; Stowell v. Beagle, 79 Ill. 526: Van Buskirk v. Day, 32 Ill. 206; Latham v. Roach, 72 Ill. 179; Murphy v. The People, 37 Ill. 448; Walker v. Collier, 37 Ill. 362.

Erroneous instructions will not reverse if they appear to work no injury to the party complaining: Andes Ins. Co. v. Fish, 71 Ill. 620; P. A. & D. R. R. Co. v. Sawyer, 71 Ill. 361; Rankin v. Taylor, 49 Ill. 451; Coursen v. Ely, 32 Ill. 338; City of Alton v. Hope, 68 Ill. 167; Wiggins Ferry Co. v. Higgins, 72 Ill. 517; Sterling Bridge Co. v. Baker, 75 Ill. 139; Rice v. Brown, 77 Ill. 549; Reynolds v. Greenebaum, 80 Ill. 416.

Giving or refusing instructions containing mere abstract propositions of law, is not error: Ryan v. Donnelly, 71 Ill. 100; Tuttle v. Robinson, 78 Ill. 332; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206.

LELAND, J.

This was an action on the case by appellee, against appellant, to recover damages for an injury caused by the fall of a sidewalk, through the alleged negligence of the latter.

On the south side of Main street, there was a sidewalk built in 1858 or 1859, by the then lot owner. The portion of the walk which fell was in front of two buildings, and of the space of about eight feet between them, the easternmost called Brand's and the other Brink's. There was a depression in the surf ce of the earth, by reason of which the portion of the sidewalk which fell was about seven feet above the ground. The depression had been filled in the street nearly up to the girders upon which the stringers rested. There was a stone wall parallel to and seven feet distant from the front walls of the buildings. The girders were five feet apart, and about two inches higher at the south ends than at the north, with their north ends resting on the top of the street wall, and their south ends inserted in holes in the walls of the buildings, except that the one girder which was in the space between the buildings, rested upon the top of a post. On the girders and at right angles with them, were four or five, probably four, 2x6 stringers to which the boards were nailed. The stringers were probably not nailed to the girders. Whether the post upon which the girder rested, was set upon a stone, stood upon the surface of the earth or was driven into it, does not appear. Nor does it appear whether the girder was nailed to it, nor whether the post was in any way braced or stayed. The end of the girder resting on the post, and of the one five feet east from it, which was in a hole near the west side of the Brand building, on May 11th, 1877, fell simultaneously, or possibly one of the supports may have given way wholly or partially before the other did, leaving the fallen portion of the sidewalk about fifteen feet in length at an angle of forty-five degrees, with the south side or side nearest the buildings on the ground and the north side on or against the street wall.

There were four persons on it when it fell; three of them near the building, and one, appellee, near the street wall. Those near the building were unhurt. Appellee plunged forward, or slid down the inclined plane, and fell between the two buildings, and was hurt, mainly in the small of the back. It is not easy to determine from the evidence how serious the injury was, or that it was really a serious one at all. One jury thought appellee was injured to the extent of $2,000, and the last one fixed the amount at $3,000. Sympathy, however, is often so strong in such cases that it is difficult to restrain the impulse to be liberally charitable, when the fund to bestowed is another's. There was a flight of stairs on each side of the space between the...

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