Van Cleef v. City of Chicago

• Decision Date: 16 June 1909
• Citation: Van Cleef v. City of Chicago, 240 Ill. 318, 88 N.E. 815 (Ill. 1909)
• Parties: VAN CLEEF v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

240 Ill. 318

88 N.E. 815

VAN CLEEF

v.CITY OF CHICAGO.

Supreme Court of Illinois.

June 16, 1909.

Error to Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; A. H. Chetlain, Judge.

Action by Anna Van Cleef against the City of Chicago. There was a judgment of the Appellate Court affirming a judgment for plaintiff, and defendant brings error. Affirmed.

John R. Coverly (Sigmund Zeisler, of counsel), for plaintiff in error.

Darrow, Masters & Wilson, for defendant in error.

CARTWRIGHT, J.

On June 15, 1903, the city council of the city of Chicago, on the application of the business men of the Eighth ward, passed a resolution giving permission to use certain streets for a merchants' carnival and street fair to be held from July 20 to July 26, 1903, with the necessary shows, stands, and attractions. Under that authority the streets named in the resolution were occupied with tents, booths, and other structures, and at the corner of Ninety-Second street and Exchange avenue there were three shows in tents erected in the street intersection. One was an animal show, another a lilliputian, and the third was a show named ‘Enoch, the Water Man.’ The streets were festooned and illuminated by electric lights and the crowds at night were estimated from 40,000 to 50,000 people. The sidewalks and roadways were full of visitors to the street carnival, and teams and street cars went around through other streets. The tent in which the show of ‘Enoch’ was conducted would hold 300 people. In front of it was a platform 6 feet wide, 15 or more feet long, and 4 or 5 feet above the street. A ‘barker’ stood on the platform attracting the attention of the crowd to the show, and there was a place there for selling tickets. A stairway 5 or 6 feet wide went up to the platform from the street, and a like stairway led down on the other side into the tent. The show lasted about 10 or 15 minutes, and consisted of ‘Enoch’ in a water tank smoking a pipe. The defendant in error, Anna Van Cleef, went into the show with her husband about 9 o'clock in the evening of July 24, 1903. The performance was attended by 150 to 200 people, and at its conclusion the crowd started to go out on the street. In descending the steps from the platform to the street, Mrs. Van Cleef was pushed by the crowd, and, there being no railing or guard along the edge of the stairway, she fell to the street and suffered serious injuries. She brought her suit in the superior court of Cook county against the plaintiff in error, the city of Chicago, to recover damages for her injuries, and obtained a verdict for $15,000. The court denied motions for a new trial and in arrest of judgment and entered judgment on the verdict. The Branch Appellate Court for the First District affirmed the judgment, and the city sued out a writ of error from this court to bring the judgment of the Appellate Court in review.

The brief and argument of counsel for the city is almost wholly devoted to the general proposition that under the facts of the case the plaintiff was not entitled to recover,and the city was not liable for her injury, and is not directed to any ruling of the trial court or any error assigned, and an argument of that kind might very properly be disregarded. On the oral argument, however, the counsel stated that the argument then made and the printed brief and argument were designed to demonstrate that the court erred in refusing to direct a verdict of not guilty and refusing to arrest the judgment after verdict, and we are disposed to consider them as applying to the errors assigned on such rulings.

The controverted questions of fact have been settled against the city by the judgment of the Appellate Court, and there is and can be no dispute of the propositions: That the city had no power to authorize the use of the street for the carnival and street fair; that the occupancy of the street for that purpose was unlawful and the tent and platform a nuisance per se; that the city, having by an affirmative act authorized the creation of the public nuisance, became a participant in creating and maintaining it and was not entitled to any notice of its existence or character; and that, although it did not itself put up the structure, it became liable for all injurious consequences to any one who might be in a position to complain of the breach of duty by the creation of the nuisance. It is admitted that the structure in the street was a public nuisance, and the city would be liable for any resulting injuries to persons using the street for street purposes; but it is contended that to those using the structure it was a private nuisance on account of its improper construction, and that the city was not a participant in creating and maintaining the private nuisance in its aspect as a structure unsafe to those using it. Counsel, repeating the argument in different form, says that the invitation to enter the show was extended by parties in control of it, and, while the city would be liable for an injury to any one using the street for the legitimate purposes of a street, the plaintiff was hurt solely by reason of entering upon the insufficient stairway, and the fact that the street had been made unsafe for use as a street had no connection with her injury. Counsel, therefore, concludes that the wrong by the city was not the proximate cause of the injury to the plaintiff.

It is, of course, true that the injury must be the legitimate consequence of the wrong, and, considering the question of proximate cause in the relation of cause and effect, it is clear that the injury was a natural result of the wrongful act of the city. When the city authorized showmen to fill its streets with tents and structures of the temporary character usual in carnivals and street fairs, it was reasonably to be apprehended that unless considerable care was exercised injury might result. It was not necessary that the city should have contemplated or been able to anticipate the injurious consequences to the plaintiff or the precise form of her in jury, but it is sufficient that the city might have foreseen that some injury might result from its wrongful act, and, when the injury did result, it could be seen that it was the natural consequence of the occupation of the street by structures of the nature of this platform under the permission given by the city. The negligence of the one who constructed the platform would not exempt the city if the permission was also a proximate cause. The city was guilty of a serious wrong and violation of duty by permitting the occupation of the streets for show purposes and...