95 Ill. App. 413 | Ill. App. Ct. | 1901
delivered the opinion of the court.
Appellant’s counsel state their contentions as follows:
“ I. That the city is under no obligation to erect barriers to prevent pedestrians from straying outside of the line of a'public highway, when that highway is admitted to be in good and safe condition for travel.
II. That appellee is shown by his own evidence to have been guilty of contributory negligence in going or straying to the point where the accident occurred.
III. As to the allegation that Canal street, at the place of the accident, was unlighted or insufficiently lighted, no showing is made that appellant undertook to light said • street, and the well settled law of this State is that no duty rested upon appellant so to do.
IV. The court erred in admitting certain testimony offered by appellee over appellant’s objection.
V". Lastly, we contend that the damages awarded by the jury were so excessive as to indicate such partiality, prejudice or misconception as would make the verdict (if a cause of action exists in this case) one which could not be cured by the remittitur, which was entered for the larger part thereof; and that the amount for which the trial court rendered judgment ($6,000) is excessive.”
In support of the contention that the city was under no obligation to erect barriers, counsel for appellant cite the following cases : Sparhawk v. Salem, 1 Allen, 30. In that case the alleged defect was the absence of a fence at the side of the highway. The highway adjoined certain land of a railway company, which was level and smooth, and about forty feet from the highway was the railway station, at one end of which there was an embankment. The driver of the plaintiff’s carriage, in the eveni ng, drove from the street across the intervening land of the railway company, and down the embankment, by reason of which the plaintiff, who was in the carriage, was injured. Held, there could be no recovery. The court, referring to certain cases, say :
“ These cases require the party to show that the defect which caused the injury existed either in the highway, or so immediately contiguous to it as to make it dangerous to travel on the highway itself,” etc. Alger v. Lowell, 3 Allen, 402.
The facts in that case were as follows : On the north side of the street, and between the line of the street and the houses fronting on it, there was an open space, not separated from the street by any fence or railing, about four and one-half feet wide and twenty feet long; that at one end of the open space a passage way, from sixteen to twenty-two inches below the level of the open space, and not separated from it by any fence or railing, began, which passage way led to the rear of the houses; that the plaintiff was passing along the street in a large crowd of people, by whom he was pressed into the open space, from which he stepped onto the passage way, fell and was injured. Held, that he was entitled to recover. The court say :
“ The true test, on the contrary, is not whether the dangerous place is outside of the wav, or whether some small strip of ground, not included in the way, must be traversed in reaching the danger, but whether there is such a risk of a traveler, using ordinary care in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.”
How this case can help appellant, we can not perceive. In Adams v. Inhabitants of Natick, 13 Allen, 429, the court say:
“ Whether or not such a railing is necessary for the reasonable security of the public, is a question which depends very much upon the circumstances of the particular locality in reference to which the question arises? But the essential and invariable term, or element, in all cases where a railing is required, is some dangerous object or place outside of the required railing, in or upon which the traveler may come to harm, if not warned or detained therefrom by the railing.”
In Murphy v. Gloucester, 105 Mass. 470, the cases in first, second and thirteenth Allen, cited supra, are referred to with approval. In Stockwell v. Fitchburg, 110 Mass. 305, the plaintiff, in walking from a hotel to the street, fell into a cellar way. It did not appear from the evidence that he had been on the street at all. In Williamsburg v. Frothingham, 122 Mass. 391, it appeared that the plaintiff’s horse, being frightened by a railroad train which crossed the road at grade, turned abruptly from the road, which ran north and south,and ran from twenty to thirty feet across the land adjoining the road on the east, to the bank of a river; that the plaintiff, who was driving, directed the horse down the river bank to the foot of the bank, when the horse fell and the plaintiff was thrown from his buggy and injured. Held, that there was no dangerous place so near to the highway as to require a railing or barrier, and that there could be no recovery. But the court also held that “ A town is bound to erect barriers or railings where a dangerous place is in such close proximity to the highway as to make traveling on the highway dangerous,” citing prior cases. In Daily v. Worcester, 181 Mass. 452, the dangerous place where the plaintiff fell and was injured was more than twenty-eight feet from the highway.
None of the foregoing cases, all of which are cited and relied on by appellant’s counsel, support their contention, and the majority of them are against it.
In Jewhurst v. City of Syracuse, 108 N. Y. 303, the plaintiff was injured by reason of a defective plank next to, but outside the limits of the street. The referee reported that for a year before the accident the sidewalk had been in an unsafe and dangerous condition; that it was constructed of two twelve-inch planks running lengthwise of the street, with one foot of space between them to be filled in; that the plank, by the breaking of which the plaintiff was injured, was on the north side of the sidewalk and outside the line of the street, while the adjacent plank was within the limit of the street, and that there was no mark or indication as to where the true north line of the street was; that the sidewalk was, ostensibly, a sidewalk on the street, and that the contrary could not be ascertained without survey and measurement; that the defendant had permitted the walk to remain apparently a sidewalk on the street, for the use of the public, and that the same was extensively used by the public. The court held that the plaintiff was entitled to recover, saying, among other things:
“ I do not see how it could be said, as matter of law, that the city might be responsible for damages arising from the existence of an excavation or an obstruction, such as a post, and yet free from such liability arising from a sidewalk rendered dangerous from being out of repair. If the sidewalk outside of the limits of the street were dangerous, because out of repair, I think the street itself may be said, under the same facts, to have been in a dangerous condition, and that the city was liable so far as this question goes, for injury arising therefrom.”
The duty was incumbent on appellant to keep the sidewalk in a reasonably safe condition for persons passing along it, and using ordinary care for their own safety, and we think it abundantly established by adjudged cases, that when a sidewalk is so near to an excavation, steep embankment, or other dangerous place, as to render it unáafe, it is the. duty of the municipality to guard the walk by,railings or barriers in such manner as to prevent accidents, or at least warn passers-by of the danger. Alger v. City of Lowell, supra; Hayden v. Inhabitants, etc., 7 Gray 338; Detwiler v. City of Lansing, 95 Mich. 484; Drew v. Town of Sutton, 55 Vt. 586; City of Lincoln v. Beckman, 23 Neb. 677; City of Oklahoma v. Meyers, 46 Pac. R. 552; Davis v. Hill, 41 N. H. 329.
In the case last cited the court say :
“ 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 obstruction, without the limits of the road, but in the general direction of the travel thereon, may be properly alleged ás a defect in the highway,” citing a number of cases.
In Thompson on Negligence, Vol. 2, p. 769, the author says:
“ When the limits of the highway are not indicated by any visible object, 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 wav, if so near as to render the traveling there 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 too late to avoid it.”
The Supreme Court of this State has recognized the law to be, that a municipality may.be liable for injuries resulting from a defective sidewalk, even though the walk is constructed on private property, when the municipality treats it as a public walk and permits it to be used as such. Village of Mansfield v. Moore, 124 Ill. 133.
In Hogan v. City of Chicago, 168 Ill. 551, 559, the court say :
“ If a sidewalk built by an individual is used by the public, with the knowledge of the city authorities, the law will require them either to remove the sidewalk or to assume responsibility for its reasonably safe condition. (Village of Marseilles v. Howland, 124 Ill. 547.) When the authorities so act with reference to the sidewalk as to hold it out to the people as a public thoroughfare, they thereby invite the public to use it as belonging to the municipality. Village of Mansfield v. Moore, 124 Ill. 133.”
In the present case the part of the sidewalk in the street and the part west thereof were on a level; there was ..no visible line of demarcation between them; they formed apparently one sidewalk; they were so used by the public for so long a time that appellant must be presumed to have known of such use, and it was clearly a question for the jury whether the open space into which appellee fell was in such dangerous proximity to the walk as to require appellant, in the exercise of reasonable care, to place a railing or barrier next to the open space, to protect persons passing that way.
The evidence is that at the time of the accident it was very dark, so much so that looking down from the walk to the place where appellant fell, he could not be seen, and a lantern had to be procured to render him assistance. The nearest street lamp was at the corner of Polk and Canal streets — too far away to give any light at the place of the accident. Appellant’s counsel argue that, although the city had power to light the streets, it not appearing from the evidence, as they claim, that it had undertaken to exercise that power, the duty was not incumbent on it to maintain lights, and therefore appellee can not rely on the absence of light. The proposition is untenable. The place was a dangerous one, and it was the duty of appellant to protect passers-by against the danger in some way, either by railing, which would prevent such accidents as happened to appellee, or by a light, which would disclose the dangerous place to persons approaching it, or by some other means. Had there been a light sufficient to disclose the danger, counsel would have been swift to urge that had appellee used his eyes the accident would not have occurred. Fred Both having stated that there was nothing on the north side of the driveway at the time of the accident, was asked if there had ever been a fence there, which question was objected to, not as leading, but generally, and the witness answered that at one time, but how long ago he could not tell, there was a common tie board fence there. It is contended that this evidence was incompetent. We are inclined to think otherwise. Actual knowledge of appellant of the condition of the place was not proved, and appellee’s counsel relied on proof that the place had been in the condition in which it was at the time of the accident, for so long a time prior thereto as to give rise to the presumption that appellant must have known its condition. Hence proof of its condition at times prior to the accident was not irrelevant. But even on the hypothesis that the evidence was improperly admitted, we do not think its admission sufficient ground for reversal.
We are of opinion that the jury were warranted by the evidence in finding that appellee was exercising ordinary care at the time of the accident, and that the city was guilty of negligence which caused the accident.
We can not sustain appellant’s contention that the amount assessed as damages by the jury is such as to indicate partiality, prejudice or misconception on their part, or its contention that the amount of the judgment is excessive; nor, in view of appellee’s injuries, are we prepared to say that if judgment had been rendered for the full amount assessed by the jury, we would have been inclined to reverse it on the ground of excessiveness.
Appellee was a young man when injured. There is nothing to indicate that prior to that time he did not enjoy ordinary health and strength. He earned his living by daily labor. His injuries have totally incapacitated him for active work. He has suffered great and continuous pain, and his prospect is that he will grow worse rather than better.
The judgment will be affirmed.
