209 Ill. App. 630 | Ill. App. Ct. | 1918
delivered the opinion of the court.
This is an appeal by the defendant, City of Chicago, from a judgment of the Superior Court of Cook county entered upon the verdict of a jury, in an action on the case for personal injuries.
Appellant urges that the declaration does not state a cause of action. The declaration, in substance, alleges (and the proof shows) that the City of Chicago with notice permitted a certain awning attached to private property adjoining the street and extending out over the sidewalk on the street, but not resting on nor attached to the street itself, to be and remain in a weak and dangerous condition; that it fell on plaintiff while he was using the street with due care, etc., injuring him.
In Hanrahan v. City of Chicago, 145 Ill. App. 38, this court held that a precisely similar declaration arising out of the same transaction did not state a cause of action. The ground of that decision was that the negligence alleged related to acts which the city was empowered to do as a governing - agency and duties imposed for the public welfare to which the maxim respondeat superior did not apply. The authority relied on was Oliver v. City of Worcester, 102 Mass. 489, and it was there stated: “We are aware of the conflict of authorities on this subject, * * * but we are disposed to follow the general current of the decisions of our Supreme Court as we understand them * * *.”
Appellee calls our attention to decisions in Massachusetts and Illinois which indicate that divergent views on this subject are held by these courts. Hill v. City of Boston, 122 Mass. 379; City of Chicago v. Keefe, 114 Ill. 222.
The Supreme Court of Illinois in City of Chicago v. Keefe, supra, said: “In the view of the New England courts there is no implied liability for injuries resulting from defective streets or sidewalks—the liability is wholly statutory. * * * On the contrary, we hold, on principles of common law, that an action for damages resulting from negligence will lie against a municipal corporation if the duty to make repairs is fully declared, and adequate means are put within the power of the corporation to perform the duty.” Citing, with other authorities, Browning v. City of Springfield, 17 Ill. 143.
In the later case of Johnston v. City of Chicago, 258 Ill. 494 [4 N. C. C. A. 40], the liability of a municipal corporation for negligence of its employees was discussed. The plaintiff there sued the City of Chicago because of the alleged negligence of an employee who was driving an automobile for the Chicago Public Library upon a public street, and had judgment. This was affirmed by the Appellate Court and a certificate of importance granted. [174 Ill. App. 414.]
It was urged that the City of Chicago in establishing and carrying on a public library was exercising a public or governmental function and that the action, therefore, would not lie. The Supreme Court affirmed the judgment, stating: “The organization of this public library is for the exclusive benefit of the territory of the City of Chicago and not for the State at large. It . has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens volens. Even a municipality, usually considered a quasi corporation, when voluntarily organized has been held by this court responsible for certain negligent acts of its employees.”
Upon the same reasoning, in the case of Kinnare v. City of Chicago, 171 Ill. 336, the Supreme Court held: “The City of Chicago voluntarily adopted the Cities and Villages Act * * *. By adopting the act the city voluntarily assumed the burden of exercising the powers thus conferred upon it. * * *”
Included among the powers so conferred, and voluntarily undertaken by the city, is that of control of awnings which encroach upon the streets. Hurd’s Rev. St. ch. 24, sec. 62 (J. & A. ¶ 1334). We think, therefore, within the rule announced in Johnston v. City of Chicago, supra, the declaration in this case stated a cause of action.
Further, the duty of the City of Chicago to use ordinary care to keep the street and sidewalks reasonably safe, and its liability for negligence with respect thereto, is so well established in this State as to make the citation of authorities unnecessary. It would seem on principle that the duty should be coextensive with the powers conferred and accepted. The extent of such power and. authority is set forth in People v. Harris, 203 Ill. 272. Here it is said: “And the dedication of the strip of land for a public street embraced not only the surface of the ground, but the light and air above, and an individual has no more right to obstruct the light and air above the street than he has to obstruct the surface of the soil.” (See also, Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91.)
Our attention is called by appellant to Vossler v. DeSmet, 204 Ill. App. 292. That was a case where a pole which stood on a vacant lot of a private owner adjacent to, bnt neither on nor over the street, fell, injuring one who was traveling upon the street. Any power or authority which the city there had would necessarily have been exercised under its police powers, which makes the case clearly distinguishable from the instant one.
We conclude that the decision in the case of Hanrahan v. City of Chicago, 145 Ill. App. 38, is contrary to the law as announced by our Supreme Court as well as to the great weight of authority. Elliott on Roads & Streets, vol. 2, sec. 790; 15 Am. & Eng. Encyc. of Law, 458; 28 Cyc. 1379.
Appellant next urges that the court erred in the admission of evidence. It appears that, subsequent 'to the injury, plaintiff became insane and upon the trial a medical expert was called as a witness for the purpose of showing that the subsequent mental condition was caused by the injury received at the time of the accident. Counsel for plaintiff put to the expert a hypothetical question elucidating the facts as disclosed by the evidence for plaintiff and concluding: “Have you an opinion as to whether or not there is any relation between the accident described and his subsequent condition, including his subsequent condition T’ An objection to this question upon the ground that it invaded the province of the jury was interposed and overruled. The expert answered: “That is the relation of cause and effect, that the subsequent condition was due to the accident and the injury.”
Appellant insists that the admission of this evidence was error under the rule laid down in the case of Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71. We think not. In the first place the rule which appellant here contends for does not apply in cases where there is no dispute as to the manner and cause of the injury, nor dispute that there was an injury sustained. The fact of the injury and the manner thereof was not disputed ón the trial, and the defendant offered no evidence on that subject. In Fellows-Kimbrough v. Chicago City Ry. Co., supra, the court stated: “In cases where there is no dispute as to the manner and cause of the injury and no dispute that there was an injury sustained by reason of the acts of which complaint is made, this court has held that a physician may then directly testify that a later malady was or was not caused by the accident or original injury, upon the same principle that he may testify that death resulted from a certain wound. Schlauder v. Chicago & S. Traction Co., 253 Ill. 154; City of Chicago v. Didier, 227 Ill. 571.” (See also, Heineke v. Chicago Rys. Co., 279 Ill. 215.) In the second place, upon this trial, the defendant in presenting its expert evidence asked and its witnesses were allowed to answer questions similar to those of which it now complains. This it may not be allowed to do. Policemen’s Benev. Ass’n v. Ryce, 115 Ill. App. 95; Chicago & A. Ry. Co. v. Jennings, 120 Ill. App. 195.
It is also urged that the verdict was against the weight of the evidence. We do not find it to be clearly and manifestly so. The judgment will therefore lie affirmed.
'Affirmed.
