230 Ill. 204 | Ill. | 1907
delivered the opinion of the court:
Appellant first insists that it built the walk in question under the mandate of the village ordinance, and that, inasmuch as it complied with the ordinance as to the width and grade it is not liable, and that if any liability exists it is against the village and not against the appellant. It is undoubtedly within the power and the duty of municipal corporations to establish the grade of sidewalks within their limits and to determine the location and character of the walks to be constructed and the material to be used. It appears that the village of Heyworth had passed an ordinance providing for the construction of a concrete sidewalk at the place in question, on Main street. The appellant did not construct a sidewalk of the character required by the ordinance, in so far as the material used is concerned. The ordinance of the village only authorized the construction of a concrete sidewalk. It is true that there is evidence tending to show some members of the village board verbally consented to a substitution of a plank walk across appellant’s tracks, but it cannot be seriously contended that such consent operated as a repeal of the ordinance in so far as it applied to appellant’s right of way. But we do not regard this circumstance as of controlling importance, since it was not the substitution of plank for concrete material that caused the injury. If a concrete walk had been constructed of the same width and elevation the injury might have occurred in the same manner that it did. In other words, we do not regard the unauthorized substitution of planks for concrete as being a distinct ground of liability. Appellant was under a statutory duty, wholly independent of the ordinance, to maintain its crossings in a reasonably safe condition, and it cannot justify the negligent performance of this duty on the ground that the crossing was put in under the mandate of the city ordinance. It was the plain duty of the appellant to obey the mandate of the statute, and if it negligently failed to observe that duty and in consequence appellee was injured, it will not be permitted to set up the defense that its disregard of the statute was at the mandate of the village. We would not be understood as holding that appellant was not under obligations to comply with all reasonable and valid ordinances passed by the municipality. On the contrary, it was the duty of the appellant to comply with the ordinance and at the same time observe its statutory duty to the public. If, as a matter of fact, the sidewalk constructed by the appellant was a dangerous obstruction to persons walking along the sidewalk in the observance of due care, it cannot be said that the city ordinances authorized appellant to erect a dangerous obstruction in the sidewalk and leave it there. The city ordinance in question cannot be so construed, and if it could, the ordinance would have to be held invalid in so far as it purported to legalize acts which are forbidden both by statute and the common law.
Appellant insists that leaving the perpendicular step in the sidewalk is not actionable negligence, that appellee was not in the exercise of ordinary care for his own safety, and that the damages are excessive. These are all questions of fact, which are conclusively settled adversely to appellant’s contention by the decision of the Appellate Court.
Appellant complains of the refusal of a number of instructions offered by it. These instructions, except Nos. 13 and 14, present, in various forms, appellant’s contention in reference to. its justification under the ordinance, and what has already been said in disposing of that contention sufficiently shows that in our opinion the court did not err in refusing these instructions. Instructions Nos. 13 and 14, which were refused by the court, relate to the care and caution that should be exercised by. a person in passing along a street or sidewalk, and sufficient reason for refusing to give these instructions is found in the fact that the court instructed the jury very fully upon the duty of appellee to exercise reasonable care for his own safety, in other instructions given for appellant. This question-is fully covered by instructions io, ix and 12 given on behalf of the appellant. There was no error in refusing any of the instructions asked by appellant.
Appellant contends that the court erred in giving instructions Nos. 2 and 3 on behalf of appellee. These instructions are not open to the objections made to them.
Finding no reversible error in the record the judgment of the Appellate Court is affirmed.
Judgmmt aíñrmed-
