| Ill. App. Ct. | Apr 8, 1898
after making the above statement, DELIVERED THE OPINION OF THE COURT.
Appellee’s counsel seek to sustain this judgment upon the theory that the sidewalk was constructed in “ a dangerous and unsafe manner,” because there were no cleats upon the incline and no side rails, which they insist were necessary to make the passage down reasonably safe.
On the part of appellant it is contended that the construction was reasonably safe; that the incline ivas rendered slippery by the snow and sleet of the previous night, for which the city was not responsible, and that the accident was caused by the contributory negligence of the appellee.
The evidence does not sustain the contention of appellee’s counsel that the sidewalk was constructed in a manner Avhich rendered it unsafe under ordinary conditions. Appellee and her daughter, who was with her when the accident' occurred, had gone OArer this same sidewalk in safety very often prior to that time. They always went to market that way. There is no evidence tending to show that the incline was of such grade or so constructed as to be unsafe under ordinary conditions. One witness testifies, on redirect examination by appellee’s counsel, that she saw a lady fall there the summer before', at a time when it was muddy and after a rain. But there is no evidence tending to show that the grade of the incline was such as to be unsafe, unless we should be prepared to hold that any inclination whatever in a sidewalk is in itself evidence of negligent construction. Appellee’s counsel suggest that it is a significant fact that after this accident the city caused cleats to be placed upon this walk. It was certainly proper, when the city authorities learned that an accident had occurred, to take additional precautions to insure safety under any conditions; but such action is no evidence of prior negligence, unless, as before stated, we are prepared to hold that any inclination in a sideivalk is necessarily unsafe, and is of itself sufficient proof of negligence. In the absence of proof of negligence in the construction or grade of the incline, or of evidence tending to show that a railing was reasonably necessary by reason of anything dangerous in the character or gradation of the incline, there is not sufficient evidence to sustain the declaration. Appellant was not bound to construct its sidewalk so that when rendered slippery with snow and ice it would be impossible for one passing over it to slip and fall. It must exercise reasonable care, so that such sidewalk shall be reasonably safe at all times to one in the exercise of reasonable care and caution thereon. City of Chicago v. Bixby, 84 Ill. 82" date_filed="1876-09-15" court="Ill." case_name="City of Chicago v. Bixby">84 Ill. 82; City of Macomb v. Sraithers, 6 Brad. 470; City of Aurora v. Parks, 21 Ill. App. 459" date_filed="1886-12-11" court="Ill. App. Ct." case_name="City of Aurora v. Parks">21 Ill. App. 459; City of Chicago v. McGiven, 78 Ill. 347" date_filed="1875-09-15" court="Ill." case_name="City of Chicago v. McGiven">78 Ill. 347.
There .is no evidence that in this case the city has failed to exercise such care.
Appellant had passed over this incline frequently before the accident. She says she had been apprehensive of danger to herself in passing over it at other times when there was no snow there. She saw that the snow was “ hard, crusty-like and slippery,” when about to pass over it the day the accident occurred. Under these circumstances and with full knowledge of the situation, she chose to take the chances of a fall. A party has no right to knowingly expose himself to danger, and then recover damages for an injury which he might have avoided by the use of reasonable precaution. Lovenguth v. City of Bloomington, 71 Ill. 238" date_filed="1874-01-15" court="Ill." case_name="Lovenguth v. City of Bloomington">71 Ill. 238.
There is no evidence of any special precaution haying been taken by appellee, such as her knowledge of the danger would reasonably require. “ It is settled that if a person knows a way to be dangerous when he enters upon it, he can not, in the exercise of ordinary prudence, proceed and take his chance, and if he shall actually sustain damage, look to the town for indemnity.” Wilson v. City of Charleston, 8 Allen, 137; cited in City of Sandwich v. Dolan, 133 Ill. 181.
Ordinary care is a question of fact for the jury when there is evidence for the jury to consider upon that point. There is no such evidence in this case.
For the reasons indicated the judgment will be reversed and the cause remanded.