195 Ill. 54 | Ill. | 1902
delivered the opinion of the court:
The principal proposition advanced by counsel for appellant upon which a reversal of the judgment below is urged is, “that a municipal corporation is under no obligation to erect barriers to prevent persons of the public straying from the limits of its highways.” It can scarcely be contended that this is a correct statement of the law as applicable to all cases, and the authorities cited in support of it clearly show that it is not. All that is held by those cases is, that under the facts there presented it was not negligence on the part of the municipality to fail to erect and maintain such barriers, and they are all reconcilable with the rule announced in Stockwell v. Inhabitants of Fitchburg, 110 Mass. 305, (one of the cases cited,) in which it is said: “But towns are not obliged to erect railings for the mere purpose of preventing travelers from passing beyond the limits of the highway. Railings are necessary when defects are in such close proximity to the traveled way as to make it unsafe to travel upon it and near its boundary, and not otherwise,”—citing several Massachusetts cases. It was said in Davis v. Hill, 41 N. H. 329: “It seems entirely clear, upon the authorities, that the want of a sufficient railing, barrier and protection to prevent travelers passing upon a highway from running into some dangerous excavation or pond, or against a wall, stones or other dangerous obstructions without the limits of the road but in the general direction of the travel thereon, may be properly alleged as a defect in the highway.” And again, by Judge Thompson in his work on Negligence, (vol. 2, p. 769): “When the limits of the highway are not indicated by any visible objects, and there is nothing to show a person driving thereon",in the evening that the course he is pursuing is not within the way intended for public travel, the town is liable for an accident to a traveler resulting from a defect within the general course and direction of travel, where travelers are accustomed to pass along the highway, although without the limits of the located way, if so near as to render the traveling thereon dangerous in the condition in which it is at the time of the accident, and there is nothing to give travelers notice of the defect until it is too late to avoid it.” We have held that a municipality is liable for injuries resulting from defective sidewalks even though they are constructed on private property, when they are treated by the municipality as public walks and permitted to be used as such. (Village of Mansfield v. Moore, 124 Ill. 133; Hogan v. City of Chicago, 168 id. 551.) Whether of not it was the duty of the city to erect a railing or other barrier to prevent persons passing along the sidewalk on the west side of Canal street from falling down the inclined driveway or into the hole between the driveway and the frame building, cannot, therefore, be a question of law, but is purely one of fact.
It is not claimed that the court committed error in its rulings upon instructions to the jury, and the only objection to the introduction of evidence on behalf of the plaintiff was as to testimony to the effect that some time prior to the accident there had been a “tie-board fence on the north side of the inclined driveway,” which had been blown down. It is insisted that this evidence tended “to lead the jury to think that the appellant should have maintained a fence along the east side of the plank platform at the point where the appellee left the sidewalk.” Conceding that the objection to that evidence was sufficiently specific to raise the question of its competency, there was no error in admitting it. The plaintiff had the right to prove all the surroundings of the place where the accident occurred,—not only at the immediate time but within reasonable limits) prior thereto,—and the defendant, if it saw proper, could, upon cross-examination, show who placed the fence there, introduce affirmative evidence as to its knowledge of the fact that it was there, and by proper instructions limit the testimony to its legitimate application in the case. There is, therefore, no error of law insisted upon in this court well assigned, unless it could be said the trial court erred in refusing to take the case from the jury. It cannot be seriously contended that there was no evidence produced upon the trial fairly tending to show that, under the foregoing authorities, it was the duty of the city to erect proper and necessary railings to prevent injuries to pedestrians passing along the sidewalk of that street. That question was for the jury, and the court very properly refused to withdraw it from its consideration.
The further contention that the trial court erred in refusing to arrest the judgment on the second count of the declaration, under this view becomes unimportant. There was, however, no such error. That the count alleges a good cause of action in substance is not denied, but it is said there was no proof whatever in the record tending to support it. It is admitted that at least one witness testified that the street was defectively lighted by a lamp at the corner of Polk and Canal streets, some distance from the place of the injury. While it is insisted that upon the authority of City of Freeport v. Isbell, 83 Ill. 440, a city is riot bound to light its streets, (upon which proposition we express no opinion,) yet it is not denied that where it undertakes to do so it must properly light the same. While the evidence as to the city of Chicago having assumed that duty as to Canal street is slight, it cannot be said there is no evidence tending to prove the fact, hence it was for the jury, under the instructions of the court, to determine whether the allegations of the second count were proved or not, and it cannot be made the subject of review here.
The opinion of the Appellate Court, by Adams, P. J., correctly and ably disposes of all the questions arising upon this record.
The judgment of the Appellate Court will accordingly be affirmed.
Judgment affirmed.