Wolff Manuf'g Co. v. Wilson

• Decision Date: 24 October 1894
• Parties: WOLFF MANUF'G CO. v. WILSON.
• Court: Illinois Supreme Court

152 Ill. 9

38 N.E. 694

WOLFF MANUF'G CO.

v.WILSON.¹

Supreme Court of Illinois.

Oct. 24, 1894.

Appeal from appellate court, First district.

Action on the case by David J. Wilson against the L. Wolff Manufacturing Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 46 Ill. App. 381. Defendant appeals. Affirmed.

The following is the original opinion as modified on rehearing:

An iron post, painted and used as a barber's sign, which was about 18 inches in diameter at the lower end, and tapering towards the top, stood about 12 feet high, within 5 inches of the outer edge of the sidewalk, on a street of the city of Chicago. The post was estimated to be of a weight between 500 and 800 pounds. For 18 months the post had thus stood. From the bottom, three prongs projected, which stood in holes drilled into the stone sidewalk. West of this post stood an iron tank and a plumber's sign, about 6 feet distant. East of the barber's sign stood a lamp post, 6 feet distant. West from the plumber's sign, distant over 21 feet, stood a lamp post. A plumber's shop was in the basement of the building, the entrance to which was nearly opposite, but slightly to the west of, the plumber's sign. The outer edge of the curb was about 5 inches from the post,-the barber's sign,-and the gutter next the curb was about 20 inches below the level of the sidewalk. The street, a few feet away from the curb, was higher than the bottom of the gutter. Defendant had in its employ a driver who was driving a team attached to a wagon on which were loaded some supplies to be delivered at the plumber's. The wagon with the load was heavy, and, in backing the wagon up to the curb, after it reached near the curb it came back with much force, and the platform of the wagon projected further back than the outer edge of the hinder wheels of the wagon, so that, when the wheels rested against the curb, the platform extended over the sidewalk, projecting 5 or more inches. As the driver thus backed his wagon, the platform so projecting over the sidewalk struck the post, and knocked it over, and, as it was about to fall, the driver called to those on the sidewalk to catch the pole. The appellee threw up his hands, but in its fall he was struck by the pole, and seriously injured. Suit was brought against appellant, as owner of the team and wagon, who had the teamster in its employ, for damages in negligently causing the injury. A trial resulted in a verdict for $3,000, which judgment was affirmed on appeal to the appellate court of the First district, and this appeal is prosecuted.

The principal questions that arose on this appeal grow out of the refusal of the court to give certain instructions asked by the appellant, the first and second of which were that the jury should, under this declaration, find for the defendant, and the others as follows: (3) ‘If you find from the evidence that the plaintiff's injuries were caused by the negligence of whoever owned the pole and maintained it there, under the circumstances, and not the result of any negligence on the part of the defendant's driver, then your verdict must be for the defendant.’ (4) ‘If you find from the evidence that the post was not fastened to the sidewalk, but simply stood there, with two or three small lugs or spikes projecting an inch and a half or two inches into the sidewalk; and if you also find that leaving the post in that manner, under the circumstances, was negligence on the part of the owner of the barber shop, or whoever put it there, and that the defendant's driver, in approaching the post, and endeavoring to back the truck up to the sidewalk, used the care of an ordinarily careful man under the circumstances,-then the court instructs you that the defendant is not liable for any injury which resulted from any negligence of the owner of the barber shop of the owner of the pole, and your verdict must be for the defendant.’ (5) ‘The court instructs you that the driver had the right to back up at the place he did, regardless of any poles or posts, unless you find from the evidence that there was something in the appearance of the pole and drum and surroundings which would lead a man of ordinary prudence to choose another place. No man, if he exercises ordinary care under all the circumstances, is obliged to avoid poles or posts, or choose one place in preference to another. The driver, if in the exercise of ordinary care, had the right to rely upon the appearance of the barber's pole, and govern his horses and truck accordingly.’ (6) ‘If you find from the evidence that the defendant's driver, when he saw that the post was about to fall, called to the plaintiff to catch the post, and that the plaintiff, in obedience to a request of the driver, left the place where he would not have been hit by the post if he had remained, and tried to catch the post, and was thereby injured by its fall, your verdict must be for the defendant.’ (7) ‘It is not sufficient in this case for the plaintiff to prove simply that he was injured by the falling of the barber's pole, and that the defendant's truck hit the pole, and knocked it over. That is not enough. You cannot presume that the driver of the truck was careless simply because the pole was knocked over, and the plaintiff injured, but the plaintiff must show by a preponderance of the evidence that in backing around, and in hitting the pole, the driver was negligent; that he did it in a careless and negligent manner; and if you find from the evidence that the driver, under all the circumstances, managed his horses and truck in the ordinary and usual manner, and with ordinary skill and care, then your verdict must be for the defendant. You cannot render a verdict for the plaintiff unless you are able to say from the evidence that in the handling of his truck and horses the driver was negligent; and, if the evidence shows that the driver exercised the usual care and caution of an ordinary careful man under the circumstances, you must render a verdict for the defendant.’ (8) ‘The court instructs you that the defendant's driver had a right to assume the whoever owned the post, and maintained it there, had exercised reasonable care and caution in fastening it to the sidewalk, so that it would not be dangerous to people upon the sidewalk or to teams in the street; and if you find from the evidence that there was nothing about the post...