delivered the opinion of the Court:
In this action on the case to recover damages for personal injuries, the appellee, Emma Babcock, recovered judgment in the circuit court of Cook county for $1500, and the judgment was affirmed in the Appellate Court.
In September, 1887, there was a restaurant at No. 33 West Adams street, in the city of Chicago, and several steps led from the restaurant down to the sidewalk and street, and to the left of the steps as one came out from the restaurant was an opening leading into the basement, and extending out into the sidewalk and street, a distance of three feet, to a point beyond.the lowest of these steps. The only protection from this opening was a trap-door fastened upon hinges, and the opening and trap-door had been there for some three years prior to the accident. An ordinance of the city provides that entrances to areas and basements shall not extend into the sidewalk more than two feet next to the building. The trapdoor in question was left open a considerable portion of the time, and was open at the time of the accident. On the morning of the sixth day of said month of September, appellee, who had never been at said restaurant before that time, went there for the purpose of getting her breakfast. In coming out with a large bundle on her left arm she walked down the steps, and in turning east to go to the place where she was employed as a cloak finisher, stepped with her left foot into the opening and fell into the basement below, and received the injuries for which the suit was brought.
No claim is made that it was not negligence on the part of the city to permit the opening in the sidewalk and to permit the trap-door to be left open, but it is urged that there was no right of recovery because appellee was not exercising ordinary care, and that it was therefore error for the trial court to refuse to instruct the jury to find the defendant not guilty.
A person passing along a sidewalk in a city is required to use ordinary and reasonable care and diligence to avoid danger, but what is such ordinary and reasonable care depends upon, the circumstances of each particular case, and is a question of fact for the jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in a search for possible holes or other defects, would be to establish a manifestly unreasonable and wholly impracticable rule. We deem it unnecessary to state the evidence in detail, but we may say that we have examined it all, and that the testimony of appellee herself, and that of John H. Murray and Bichard T. Cody, tend strongly to prove that appellee, at the time that she met with her misfortune, was in the excercise of due and ordinary care. In at least three of the instructions that were given by the court the jury was pointedly told that they should find the defendant not guilty if they believed, from the evidence, that the plaintiff failed to exercise ordinary care and caution, and the verdict indicates that in their opinion there was no want of the required degree of care and caution on her part. There was clearly no error in refusing to direct the jury to find for appellant.
It appears from the evidence that appellee brought two suits to recover damages for the injuries that she had received,— one the suit at bar against the appellant city, and the other a a suit against Guiseppe LeCardi, owner of the building and premises connected with which were the opening and trapdoor above mentioned, and Ellen G-aynor, tenant of the entire building; that afterwards LeCardi paid to the attorneys of appellee the sum of $150, and that the larger portion of this was applied, by said attorneys, in paying the costs of the last mentioned suit and other expenses and charges, and some $30 or $40 handed to and received by appellee, and that at the time of the payment of the $150 a writing was executed and delivered to the agent of LeCardi, which read as follows:
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“It is hereby agreed that no action shall be begun against Joseph LeCardi, by reason of any matters existing at this date, by the undersigned. Given for good consideration.
Emma Babcock,
By Pease & Williams, Atty’s for plaintiff.
“Chicago, March 11, 1889.”
It further appears that afterwards an order was entered in the suit of Babcock v. LeCardi and Gaynor, showing that on motion of the plaintiff, by her attorney, the suit.was dismissed out of court at the costs of the plaintiff.
It is urged by appellant that the dealings of appellee and her. attorneys with LeCardi, one of the joint tort feasors, amounted to an accord and satisfaction, and were not only a bar to an action against LeCardi, but also, by operation of law, .worked a release of the city from all liability. It appears from the evidence that the transactions with LeCardi and the payment of the $150 were after this suit was brought and after plea and issue joined thereon, and a claim is therefore made by appellee, that since appellant did not file a proper plea puis darrein continuance it can not avail itself of the alleged settlement. It is undoubtedly the general rule of the common law that a matter of defense which arises after the commencement of the suit and before plea must be pleaded to the further maintenance of the action, and that a matter of defense which arises after suit brought and also after plea filed, and either before replication or after issue joined, must be pleaded puis darrein continuance. (Mount v. Scholes,
But even if the rule be such as we have indicated, yet it does not affect the result of this litigation. Not only the paper writing that was given to LeOardi, and the order and judgment that were rendered in the action against LeCardi and Giaynor, and proof of the other facts above stated, were admitted in evidence, but all the other testimony that was offered by either party that had any bearing upon the question of the nature of 'the transactions and arrangements between appellee and either LeCardi or Mrs. G-aynor, was submitted to the jury; and the court fully instructed the jury, that if they believed, from the evidence, that the $150 was paid with the knowledge and consent of the plaintiff, and received in satisfaction of her claim for damages as against LeCardi, then their verdict should be for the city, and this, even though they might believe that it was only intended to discharge LeCardi, and.not intended in any way to affect the claim of the plaintiff against the city. It is thus seen that it was fairly left to the jury to determine, as a question of fact, whether or not the money received by appellee was received by her in satisfaction of the injuries that she had sustained.
Where there are a number of tort feasors, the party injured may, at his election, sue one, or several, or all; and where the suit is against one or some of the wrongdoers, but not against all, the person or persons sued have no right to complain. And so, also, where there is suit against several tort feasors, the dismissal of the suit against one does not bar the action against the others. (Knapp v. Roche,
The only ground, then, that appellant had to stand on in respect to this branch of the ease, was a claim that there was an accord and satisfaction, and that the $150 was paid and received, in satisfaction of the damages sustained. If, as claimed by appellee, the $150 was paid and received simply in consideration of the agreement not to sue LeCardi, and not in satisfaction of the damages, but only in part payment of the same, then the transactions between appellee and LeCardi did not amount to an accord and satisfaction, and were no bar to the suit against appellant. In fact, it was for the interest of the latter that appellee should receive part payment of her claim from LeCardi, and thereby reduce the amount of damages recoverable from it. The views we have expressed are sustained by the following authorities: Snow v. Chandler, 10 N. H. 92; Knapp v. Roche,
As we have already seen, the question whether there was an accord and satisfaction, and whether the $150 was paid and received in satisfaction of damages, was submitted to the jury, to be determined by them in the light of all the facts and circumstances shown by the evidence, and under instructions which stated the law as strongly against appellee as the nature of the case warranted. The jury decided that issue, and all others involved in the suit, against appellant, and the judgment based on that verdict has been affirmed in the Appellate, Court. Said judgment of affirmance is conclusive as to all questions of fact.
We find no error of law in the record. The judgment of the Appellate Court is affirmed.
Judgment affirmed.