West Chicago Masonic Ass'n v. Cohn

• Decision Date: 24 October 1901
• Citation: 61 N.E. 439,192 Ill. 210
• Parties: WEST CHICAGO MASONIC ASS'N v. COHN.
• Court: Illinois Supreme Court

192 Ill. 210

61 N.E. 439

WEST CHICAGO MASONIC ASS'N

v.COHN.

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, First district.

Action by Charles Cohn against the West Chicago Masonic Association. From a judgment of the appellate court (94 Ill. App. 333) affirming a judgment in favor of the plaintiff, defendant appeals. Reversed.

Francis W. Walker, for appellant.

Smith, Helmer, Moulton & Price, for appellee.

BOGGS, J.

This is an appeal from the judgment of the appellate court for the First district affirming a judgment in the sum of $1,000, entered in the circuit court of Cook county in favor of appellee and against the appellant company. The declaration was in case, and, as finally amended, contained but a single count. The substance of the allegations of this count was that the appellant company was the owner of a certain building and premises and appurtenances in Cook county, abutting on Randolph street, in Chicago, and was then and there receiving rents, issues, and profits from the said building and premises, and that in said street, before and on the day aforesaid, there was a certain hole opening into a certain cellar and vault connected with the said building and premises of the defendant, which said cellar and vault, by consent of the said city of Chicago, extended into and under the said public highway, and was connected with and appurtenant to a certain portion of said building and premises occupied by a tenant of the said defendant, from whom the defendant was then and there receiving rent therefor, yet the defendant, well knowing the matters aforesaid, while it was so the owner of the said building and premises, with the appurtenances, and was so receiving the rents, issues, and profits thereof, as aforesaid, and while there was such a hole, as aforesaid, there wrongfully and unjustly permitted the said hole to be and continue, and the same was then and there so badly, insufficiently, and defectively covered that by means of the premises, and for want of a sufficient covering on said hole, the plaintiff, who was then and there passing in and along the said highway, then and there necessarily and unavoidably slipped and fell into said hole, and thereby the right leg of the plaintiff was injured at the knee, and the right knee of the plaintiff was badly bruised, torn, and injured, etc. The cause was submitted to a jury for decision, and judgment was rendered against the appellant company, as before stated.

It appeared that the appellee, Cohn, on the 12th day of November, 1895, stepped or fell into a coal hole in the sidewalk in front of No. 200 West Randolph street, in the city of Chicago, and thereby received the injuries for which the action was brought. The appellant company was then, and had for many years before that been, the owner of the fourstory and basement building at the corner of Halsted and West Randolph streets, known as ‘Nos. 200, 202, and 204 West Randolph Street.’ The coal hole in the sidewalk into which the appellee fell opened into a vault under the walk, which was connected with and constituted an appurtenance to the basement of No. 200 of said building. This basement, and the appurtenance thereto (the vault under the sidewalk into which the coal hole opened), was then in the possession of one Henry Wilker, as tenant of the appellant company. Said Wilker had occupied the basement proper as a saloon, and used the vault under the walk for water-closets and to receive and store coal, for about six years. There was evidence tending to show that neither the appellant company nor any of its tenants in the building other than Wilker had access to said vault containing said water-closets and coal bin, but said Wilker had entire control thereof, the only entrance thereto being from the saloon occupied by him; and that the vault was not appurtenant to any other part of the building. The first lease to Wilker bore date May 1, 1889, and ran for three years,-to April 30, 1892. The second lease ran from May 1, 1892, to April 30, 1894,-two years. The third lease ran from May 1, 1894, to April 30, 1896. The leases contained covenants to the effect that the lessee had received said demised premises in good order and condition, and at the expiration of the time in the leases mentioned, or a sooner determination thereof by forfeiture, he would yield up the said premises to the lessor in as good a condition as when the same were entered upon by the lessee, loss by fire or inevitable accident or ordinary wear excepted, ‘and also will keep said premises in good repair during this lease, at his own expense,’ and keep said premises in a clean and wholesome condition, in accordance with the ordinances of the city and directions of the health officers. He further agreed that all plumbing, water pipes, gas pipes, and sewerage should be at the risk of the lessee; that he would make all repairs required to the walls, ceiling, paint, plastering, plumbing work, paper, and fixtures belonging to said apartments or used in connection therewith, whenever damage or injury to the same shall have resulted from misuse or neglect. It was during the period of the latter lease that the appellee slipped, stepped, or fell into the coal hole. The evidence tended to show that under such lease said Wilker then had exclusive control of the basement and vault in question under the sidewalk into which the coal hole opened, and that the appellant company provided a janitor for the building, but did not occupy any of the rooms or offices in the building, except that the janitor used one room as his office; that he had no duties in connection with the saloon in the basement or with the vault under the sidewalk. There was no proof tending to show that the injury was occasioned by any defect in the original construction of the coal hole or of the cover thereto. It was clearly made to appear that, as between the appellant company and said Wilker, the duty of exercising care to the end that the covering of the coal hole should be kept safe rested on Wilker.

The court, on its own motion, instructed the jury as follows: ‘The court instructs the jury that public property cannot be taken or used, without compensation, for private use, with or without the consent of the public corporate authorities owning the same, without subjecting the private person or corporation using the same to a duty to use it in such manner as will not entail injury to or upon a citizen rightfully entering upon same, and using reasonable and ordinary care in so doing; and this duty the person or private corporation using such property cannot, as a matter of public policy, escape by leasing the same for compensation to a tenant.’ This instruction is erroneous in at least two respects:

1. Municipal authorities hold the streets of a city in trust for the use of the public, and cannot divert a street, or any portion thereof, to any purpose inconsistent with the full and free right of the public to use the same. But the city of Chicago had ample power to authorize the construction of the vault in question under the sidewalk, and the coal hole in the walk to connect with the vault thereunder, provided the paramount right of the public to the full, free, and safe use of the street in all of its parts was not thereby infringed. Gridley v. City of Bloomington, 68 Ill. 47;Gregsten v. City of Chicago, 145 Ill. 451, 34 N. E. 426,36 Am. St. Rep. 496. The declaration averred the city authorized the construction of the vault and coal hole here in question. When an abutting owner or other person makes an excavation in or under the sidewalk of a street without license from the municipal authorities, he is a trespasser, and the excavation a nuisance, and he becomes liable to any one who may be injured thereby without contributory negligence on the part of such injured person. If, however, such abutting property owner or other person so making the excavation in or under the sidewalk of a public street has authority or license from the property city...