| Ill. | Sep 15, 1877
delivered the opinion of the Court:
There is no evidence to sustain the averment in the amended declaration, the injury to plaintiff was in consequence of the pile of stone aud other material left in the street. That was in nowise the cause of the accident, and did not even tend to produce it. It is very clear from the testimony given by both parties that the carriage was drawn against the sidewalk, and not against the pile of stone in the street, and that it was striking against the sidewalk that threw plaintiff out of her carriage. On this point it can hardly be said there is any conflict in the testimony, and this branch of the case may be dismissed without further consideration.
The other act of negligence charged is, that defendant permitted persons engaged in constructing an inlet sewer to do blasting without giving notice of danger to persons in the immediate vicinity. The proof is, the blast that frightened the horses was the first one that had been discharged. Whether any of the city officers had any knowledge the persons engaged in constructing the sewer were going to employ blasting as a means of doing the work is a matter of serious doubt, under the evidence. An offer was made to prove the persons having charge of the work were expressly told by an alderman of the city that in the prosecution of the work no blasting should be done,” but, an objection being interposed, that privilege was denied. This was error. The very question submitted was whether defendant had negligently permitted parties constructing the sewer to use blasting in doing the work. How could defendant prevent blasting from being done if the municipal officers had no knowledge it was to be done. If the city officers had expressly forbidden the use of blasting, they could not anticipate the contractor would not observe the directions given. It was not work being done by the city, but for and under a contract with a private citizen. If the blasting was done in violation of express directions given by city officers, and was done without their knowledge, it is not perceived how defendant is responsible for any injury caused by it. As we had occasion to say in another case, a municipal corporation is not liable to damages for every accident that may occur within its limits. It would be a most ruinous rule to adopt. Its officers are not required or expected to do everything that human energy or ingenuity can do to prevent injury to the citizen. When they have exercised reasonable care in this regard, they have discharged their whole duty to the public. It devolves upon all citizens using public thoroughfares to exercise a reasonable degree of care and caution for their own personal safety. It would be extending the liability of municipal corporations beyond anything demanded by public exigency, to hold them responsible for every unauthorized act that may be done by any one which may be the cause, directly or indirectly, of injury to persons traveling on the streets. Such is not the law.
In view of the character of the evidence, we think the instructions given were calculated to mislead the jury. Many of them were based on hypothetical cases not warranted by the evidence. The injury to plaintiff was caused by the discharge of the blast frightening the horses, and not by the pile of stone or other material in the street, nor by any condition of the excavation or any other obstructions in the street; yet the attention of the jury was directed, in almost every instruction, to the condition of the streets arising from these causes, as indicating a want of care on the part of defendant in this regard. Obstructions in the street had no connection with the cause that produced the injury to plaintiff. The primary cause was the discharge of the blast, and nothing else. There is absolutely no evidence the streets of the city were not in a reasonably safe condition. Certainly there was no just ground for complaint on that score. Had it not been for the discharge of the blast, plaintiff would have been exposed to no danger in passing over the streets. So far as the instructions directed the attention of the jury to defects or obstructions in the street as grounds of a l’ecovery on behalf of plaintiff, they were faulty, and should not have been given.
The thirteenth instruction given for plaintiff does not state accurately the doctrine of comparative negligence. The principle asserted is, even if plaintiff was guilty of negligence herself, yet that fact would not destroy her right to recover if the negligence of defendant was so much greater than that of plaintiff as to clearly preponderate and outweigh it. That is not the law. Some sanction may have been given to it by an expression in Chicago, Burlington and Quincy Railroad Company v. Payne, 49 Ill. 449" date_filed="1869-01-15" court="Ill." case_name="Ellington v. King">49 Ill. 449, but' that case, so far as it declares any such doctrine, has been expressly overruled by subsequent cases in this court.
The court refused to instruct the jury, as it was asked to do, if the injury to plaintiff was caused by the negligence of her husband, in whose care she was, she could not recover. The instruction contains a correct principle of law, and if there was sufficient evidence on which to base it, and we are inclined to think there was, it ought to have been given. Plaintiff had placed herself in the care of her husband, and submitted her personal safety to his keeping, and whether it was prudent, under all the circumstances, for him to leave her in the street as he did, is a question that might well have been submitted to the jury. Without intimating what in our opinion the evidence on this branch of the case tends to prove, we may say there was evidence enough given to authorize the giving of the instruction asked.
The judgment will be reversed and the cause remanded.
Judgment reversed.