Village of Mansfield v. Moore

• Decision Date: 28 March 1888
• Citation: Village of Mansfield v. Moore, 124 Ill. 133, 16 N.E. 246 (Ill. 1888)
• Parties: VILLAGE OF MANSFIELD v. MOORE.
• Court: Illinois Supreme Court

124 Ill. 133

16 N.E. 246

VILLAGE OF MANSFIELD

v.MOORE.

Supreme Court of Illinois.

March 28, 1888.

Error to appellate court, Third district.

Lodge & Huston, for appellant.

Thomas J. Smith, (S. R. Reed, of counsel,) for appellee.

MAGRUDER, J.

This is an action of trespass on the case, brought in the circuit court of Piatt county by Lovina J. Moore against the village of Mansfield, to recover damages for an injury alleged to have been received by the plaintiff by reason of a defective sidewalk. The cause was tried before a jury, who returned a verdict in favor of the plaintiff. Motion for new trial was overruled, and a judgment rendered on the verdict, which has been affirmed by the appellate court. From the latter court the case is brought before us by writ of error.

The sidewalk where the injury occurred lies between a public highway or street of the village on the north, and the track of the Indiana, Bloomington & Western Railroad on the south. It runs westward from the business part of the village to the platform of the railroad depot, and is the main walk or passage-way for persons going from the depot to the village, and from the village to the depot. It is admitted that the sidewalk in question is built upon a part of the right of way of the railroad company, which lies just south of the public highway or street already mentioned. All the facts are settled by the judgment of the appellate court.

The main question of law presented by the record arises upon the first instruction given for the plaintiff, and is whether the village is relieved of liability for the accident by reason of the fact that the sidewalk was upon the right of way of the railroad, and was not a part of the street. The proof is undisputed that the sidewalk was within the corporate limits of the village, and was built and established by the village officers, and that they assumed control of it, and undertook to keep it in repair. The burden of the defense made by the village was that its officers had done their duty, both in properly constructing the sidewalk, and in keeping it in proper condition for use. The corporate authorities treated it as a public sidewalk, took charge of it as such, and permitted the inhabitants to make use of it as such. There is no evidence that the railroad company ever objected to its being laid upon the right of way, or ever denied the authority of the corporation to put it there and maintain it after it was built. Under the circumstances thus detailed, the village was liable for damages if injury resulted from its neglect to keep the sidewalk in a reasonably safe condition. To hold otherwise would be to relieve the corporate authorities of a just measure of responsibility. They so acted in reference to the sidewalk as to hold it out to the people as a public thoroughfare. They invited the public to use it as belonging to the village. Having assumed to perform the same duty in regard to it as though it was a part of one of the streets, they were bound to use the same degree of vigilance as they exercised in reference to other sidewalks within the limits of the corporation. These views are sustained by the following authorities: 2 Dill. Mun. Corp. (3d Ed.) § 1009; Sewell v. City of Cohoes, 75 N. Y. 45;City of Joliet v. Verley, 35 Ill. 58;City of Bloomington v. Bay, 42 Ill. 503;City of Champaign v. Patterson, 50 Ill. 61;Gridley v. City of Bloomington, 68 Ill. 47.Counsel for plaintiff in error complains further of the first instruction given for plaintiff, because it told the jury that the ‘village would be liable to the plaintiff for negligence in the construction or maintenance of said walk, if, by reason of such negligence, the plaintiff was injured while exercising ordinary care in passing over such walk.’ Counsel says: ‘The instruction holds the village liable for any degree of negligence ever so slight, and ignores the question of notice entirely.’ So far as the question of negligence is concerned, the language of the instruction was not erroneous under the rule laid down in Steel Co. v. Martin, 115 Ill. 358, 3 N. E. Rep. 456. It required the jury to find that the plaintiff was exercising ordinary care, and that the defendant was quality of such negligence as produced the...