104 Ill. App. 398 | Ill. App. Ct. | 1902
delivered the opinion of the court.
Upon the trial the defendant offered evidence as to the condition of the walk some days after the accident. This the court refused to admit. Appellant urges that this evidence should have been admitted as it tended to show the condition of the walk at the time of the accident. The Supreme Court of this state in Howe v. Medaris, 183 Ill. 288, say (p. 295):
“ It is contended the trial court erred also in the admission of testimony to the effect that the machine ivas changed or repaired after the accident. The purpose of this evidence was doubtless to show an implied admission of negligence on the part of the defendants. The rule in such cases is that the question of negligence should be determined only by what occurred before and at the time of the accident ancl evidence of repair made after the accident is not admissible.” See also, Alabaster Company v. Lonergan, 90 Ill. App. 353-357.
The reason why evidence as to the condition of the sidewalk some time after the accident should not have been received is apparent. It is a rule of evidence that conditions shown to exist at a certain time are presumed to continue. There is no rule of evidence that conditions shown to exist at a certain time are presumed to have been the same at a previous time. The presumption of law existing as to the continuance of conditions is founded upon natural inferences. A, being shown to have been married on the first of January, is presumed to have been a married man on the fifth, but there is no presumption that A, being shown to have been a married man on the fifth of January was such on the first.
If the condition of a sidewalk, a few days after an accident, may be shown as tending to show in what condition it was at the time of the accident, it is apparent that a door is open for the perpetration of fraud. The sidewalk may be in the night time secretly repaired. Its condition, when in repair, being shown, the burden is thrown upon a party injured, because of its prior defective state, to show that repairs thereon were made after the accident. This it may be impossible for him to do. Persons injured by reason of defective sidewalks not infrequently live many miles away from the place where they were hurt, and have neither friends nor acquaintances in the neighborhood where they receive injury. Their condition frequently precludes the giving, for some time, attention or thought to that which may be done in respect to the place of the accident. The offered evidence was properly excluded. Appellant insists there was no direct evidence that the plaintiff was at the time of the accident exercising ordinary care, and that an instruction should not have been given at the instance of the plaintiff, presenting, among other things, for the consideration of the jury, the question whether the plaintiff was at the time of the accident in the exercise of ordinary care. As to whether an injured person was at the time of an accident in. the exercise of ordinary care is usually a matter of inference from the circumstances proven. Direct testimony as to such care was not' required. Chicago and Atlantic Railway Company v. Carey, 115 Ill. 115. We do not regard the fourth instruction given for the plaintiff as either erroneous or calculated to mislead the jury.
It is not the case, as is urged by appellant, that an instruction to a jury to find in a particular way if certain facts are found, is erroneous when there is a conflict of evidence as to any material part of the hypothesized facts, while such instruction would be erroneous if there were no evidence in support of any material part of the facts alluded to in the hypothesis submitted to the jury. Such is the holding in Indiana & St. L. R. R. Co. v. Miller, 71 Ill. 463, and Alexander v. Town of Mt. Sterling, 71 Ill. 366. The evidence tended to show that the defective condition of the sidewalk was unknown to appellee; that she was proceeding in the ordinary and usual manner of persons descending a flight of steps leading from a dwelling house to a sidewalk, and that without negligence upon her part she was, by the condition of the walk, seriously and permanently injured, her leg being broken in such manner that it had not, up to the time of the trial, completely healed; and that she will be lame during her entire life.
We can not say that under the evidence the jury were not warranted in giving to her as damages the sum of $5,000.
The judgment of the Circuit Court is affirmed.
