| Ill. | Sep 27, 1882
delivered the opinion of the Court:
This was an action brought by Deborah Stearns, in the Superior Court of Cook county, against the city of Chicago, to recover for injuries received from a fall on and through a defective sidewalk, on LaSalle street, on the 12th day of June, 1878. On a trial before a jury the plaintiff recovered ■a judgment of $1500, which, on appeal to the Appellate Court, was affirmed. ■
A single question has been raised in regard to the admission of evidence. Mrs. Beck, a witness for plaintiff, was asked if she knew the condition of the sidewalk in the month of June, 1878. To this question a general objection was made by the defendant, and overruled by the court. We perceive no error in the ruling. It was proper to prove the condition of the walk in the month of June, prior to the time of the injury, and if the defendant desired to object to evidence in regard to the condition of the walk after the accident occurred, the objection should have been more definite, and confined to that particular time. As it was not, we think the ruling of the court was not erroneous.
The next question presented by counsel for appellant involves the decision of the court on the instructions. At . the request of the plaintiff the court instructed the jury as follows:
“1. It was the duty of the defendant to use reasonable diligence to keep the sidewalk in question in a reasonably safe condition, and if the jury believe, from the evidence, that the defendant failed to perform such duty, and that by reason of its negligence in that regard the said sidewalk was permitted to remain out of repair and in a dangerous condition, by reason whereof the plaintiff, while exercising reasonable care on her part, received the injury complained of, then the defendant is liable. And the court further instructs the jury, that if they find, from the evidence, that the plaintiff was herself guilty of some negligence, but that the defendant was guilty of gross negligence contributing to such injury, and that the plaintiff’s negligence was slight as compared with the negligence of the defendant, still she may be entitled to recover.
“2. If you-find the defendant guilty, then the plaintiff is entitled to recover her actual damages which she has sustained as the direct or proximate result of such injury, such as, her loss of time, her pain and suffering, her necessary and reasonable expenses in medical and surgical aid and nursing, as the .same may appear from the evidence in this cause. And if the jury find, from the evidence, that the said injury is permanent and incurable, they should also take this into consideration in assessing the plaintiff’s damages.”
It is said that under the first instruction the jury might well conclude that no notice whatever was requisite to charge the city with liability, but that, at all times, the sidewalk must be kept in a reasonably safe condition, without regard to whether there was any actual or constructive notice. So far as the question of notice to a city of a defective sidewalk is concerned, the law is well settled that the city will not be held liable unless it has notice of the defective walk, or unless it has notice of such facts and circumstances as would, by the exercise of reasonable diligence, lead a prudent person to such knowledge. (City of Chicago v. Murphy, 84 Ill. 224" date_filed="1876-09-15" court="Ill." case_name="City of Chicago v. Murphy">84 Ill. 224.) We do not, however, regard the instruction to be in conflict with this rule. It will be observed that the instruction contains the words, “was permitted to remain out of repair. ” Webster, in referring to the words “permit,” “allow,” and “suffer,” says, “permit” is the most positive, denoting a decided assent. From this definition it is -plain that if the city assented it did so from a knowledge of the condition of the walk,—the assent implied knowledge. But however this may be, the third instruction, given on behalf of the defendant, places the question of notice before the jury in such clear and emphatic language that they could not be misled on this question. As to the last part of the instruction, we perceive no substantial objection to it. The question of comparative negligence seems to be correctly-stated.
As respects the second instruction, it is claimed that there was no evidence to support it, and for that reason it should not have been given. The proof showed that plaintiff employed physicians, who attended her, and she was nursed by her daughter, and the expenses were about $600. The various items were not called for or given, but the evidence was sufficient, at least, to base ¡the instruction upon. It will be presumed that the physicians who attended the plaintiff were authorized to practice, unless the contrary appeared.
It is next claimed that the court erred in modifying instruction No. 1, by striking out a portion thereof. The substance of that portion of the instruction which the court refused to give was embraced in instruction No. 4, which was given, and it was not error to refuse an instruction which was a mere repetition of another, in different language.
It is also claimed that the court erred in the modification of instruction No. 3, by submitting to the jury a question not involved in the case,—that is, the “defective construction” of the sidewalk. The declaration was not framed with a view to the recovery on the ground that the sidewalk, as originally built, was defectively constructed, and no evidence was introduced to establish a claim of that character, and, so far as appears from the record, plaintiff did not base her right of recovery on that ground; and while it may be admitted that the modification was a technical error, it was one that could not mislead the jury, and did the defendant no harm.
The real issue involved in the case was fairly presented to the jury.by the instructions, and we perceive no substantial ground for disturbing the judgment.
The decision of the Appellate Court affirming the judgment will be affirmed.
Judgment affirmed.