Tomle v. Hampton.

• Decision Date: 15 June 1889
• Citation: 21 N.E. 800,129 Ill. 379
• Parties: TOMLE v. HAMPTON.
• Court: Illinois Supreme Court

129 Ill. 379

21 N.E. 800

TOMLE

v.HAMPTON.¹

Supreme Court of Illinois.

June 15, 1889.

Appeal from appellate court, Second district.

Action by Leah J. Hampton, by her next friend, against Ole M. Tomle. Defendant appeals. The second instruction given on behalf of the plaintiff was as follows: ‘And the court further instructs you that even if you should find from the evidence that plaintiff was guilty of some negligence, but that defendant was guilty of gross negligence contributing to such injuries, and that the plaintiff's negligence was slight as compared with the negligence of defendant, still plaintiff should recover in this case, and you should so find.’

Chas. Wheaton, for appellant.

A. J. Hopkins, N. J. Aldrich, and F. H. Thatcher, for appellee.

MAGRUDER, J.

This was an action of case, begun on September 26, 1884, in the circuit court of Kane county, by the appellee by her next friend against the appellant, to recover damages for injuries received by appellee from a fall through a hole in the stone sidewalk platform below the show-window of a store owned by the appellant, fronting on Wilson street, in the town of Batavia. The judgment of the trial court was in favor of the plaintiff, and has been affirmed by the appellate court. From the latter court the case is brought before us by appeal.

The appellant owns a building consisting of three stores fronting south over Wilson street, which runs east and west. The middle store at the time of the accident, which occurred on October 10, 1883, was occupied by tenants of the appellant named Vincent & Patchin, druggists. The store was first leased by the plaintiff to Vincent & Patchin in the spring of 1880, and again in the spring of 1883. The building stood back six feet from the sidewalk, and appellant had laid down flagging between the stores and the sidewalk, forming a stone walk or platform six feet wide in front of the stores, and slightly raised above the level of the sidewalk. It was necessary to step up upon this platform to enter the stores, and persons passing along the sidewalk walked upon it, and stood upon it to look into the show-windows. The drug-store had a basement about nine feet deep, with an outside entrance from the stone walk. The appellant had put a show-window in the drug-store for his tenants, and just below this window there was an opening to the basement five feet long and ten inches wide, without any railing or protection of any kind. The opening was there before the premises had been rented to the druggists. After dark on the evening of October 10, 1883, the appellee, then a girl nine years old, went to the drug-store on an errand for her parents, and, stopping in front of the window to look at some articles on exhibition there, fell through the opening into the vault below, and received the injuries, for which the suit is brought. The appellant questions the correctness of the instructions given by the trial court, because they hold that there can be no recovery against the owner of the property under the foregoing state of facts. It is contended that, if the plaintiff below had any right of action at all, it was against the tenants who were in the occupancy of the premises when the accident occurred.

As a general rule, the occupant, and not the owner, is responsible for injuries arising from a failure to keep the premises in a proper state of repair. But one of the exceptions to this rule is ‘where the premises are let with a nuisance upon them by means of which the injury complained of is received.’ In such case the owner is liable. Stephani v. Brown, 40 Ill. 428;Gridley v. City of Bloomington, 68 Ill. 47;City of Peoria v. Simpson, 110 Ill. 294. In the present case it is admitted that the opening through which the plaintiff fell existed without any guard or protection before the lease was made to the tenants. It is claimed, however, that the opening in the stone platform was not a nuisance, within the meaning of the exception of the rule. One of the reasons urged in favor of this position is that the opening was upon the premises of the appellant, and therefore not a part of the street. Although the area under the stone platform was a part of appellant's property, yet he so constructed the platform that the latter was really a part of the sidewalk. It was so situated with reference to the sidewalk that any person...