Village of Carterville v. Cook

• Decision Date: 17 June 1889
• Citation: 22 N.E. 14,129 Ill. 152
• Parties: VILLAGE OF CARTERVILLE v. COOK.
• Court: Illinois Supreme Court

129 Ill. 152

22 N.E. 14

VILLAGE OF CARTERVILLE

v.COOK.

Supreme Court of Illinois.

June 17, 1889.

Appeal from appellate court, Fourth district.

Action by Samuel Cook, an infant, etc., against the village of Carterville for damages for personal injuries. Verdict and judgment for plaintiff, and defendant appeals.

James M. Washburn and Joseph W. Hartwell, for appellant.

B. W. Pope and Geo. W. Young, for appellee.

SCHOLFIELD, J.

The evidence given upon the trial tended to prove that the plaintiff, a boy of some 15 years of age, while in the observance of ordinary care for his own safety, passing along a much-used public sidewalk of the defendant, was, by reason of the inadvertent or negligent shoving by one boy of another boy against him, jostled or pushed from the sidewalk at a point where it was elevated some six feet above the ground, and was unprotected by railing or other guard, and thereby seriously injured in one of his limbs.

The objection urged against the ruling in refusing and modifying instructions presents the question whether, conceding the negligence of the defendant in omitting to reasonably guard the sidewalk at the point where plaintiff was injured, by railing or otherwise, the concurring negligence of a third party, over whom it had no control, in producing the injury, releases it from liability. The supreme court of Massachusetts have held in Rowell v. City of Lowell, 7 Gray, 103; Kidder v. Dunstable, Id. 104; and Shepherd v. Inhabitants, 4 Allen, 113,-that it does. These cases, however, seem to rest, to some extent, upon the phraseology of the Massachusetts statute, which is less comprehensive in this class of cases than is the ruling in this court. Chicago v. Keefe, 114 Ill. 222, 2 N. E. Rep. 267. At all events, we are committed to a different line of ruling upon this question. In Joliet v. Verley, 35 Ill. 58;Bloomington v. Bay, 42 Ill. 503;City of Lacon v. Page, 48 Ill. 500,-we held that if a person, while observing due care for his personal safety, be injured by the combined result of an accident and the negligence of a city or village, and the injury would not have been sustained but for such negligence, yet, although the accident be the primary cause of the injury, if it is one which common prudence and sagacity could not have foreseen and provided against, the negligent city or village will be liable for the injury.

It is not perceived how, upon principle, the intervention of the negligent act of a third person, over whom neither the plaintiff nor the defendant has any control, can be different in its effect or consequence in such case from the intervention therein of an accident having a like effect. The former no more than the latter breaks the causal conbection of the negligence of the city or village with the injury. The injured party can no more anticipate and guard against the one than the other, and the elements which constitute the negligence of the city or village must be precisely the same in each case; and we have accordingly held that when a party is injured by the concurring negligence of two different parties, each and both are liable, and they may be sued jointly or separately. Railway Co. v. Shacklet, 105 Ill. 364;Transit Co. v. Shacklet, 119 Ill. 232, 10 N. E. Rep. 896. And this is abundantly sustained by decided cases elsewhere. Railroad Co. v. Mahoney, 57 Pa. St. 187; Railroad Co. v. Terry, 8 Ohio St., 570; Smith v. Railroad Co. 46 N. J. Law, 7; Webster v....