223 Ill. 99 | Ill. | 1906
delivered the opinion of the court:
At the close of all the evidence a motion was made by the appellant to instruct the jury to find in its favor, which motion was overruled, and that ruling is assigned as error. As we understand the contention of appellant, it insists that this motion should have been sustained for the reason that there is no evidence in the record even tending to show that appellee was injured while on the crossing, it being insisted that the proof is that she slipped in the mud at the east side of the ditch and fell, striking her knee on the crossing, and that the same injury would have been occasioned even if the crossing had been in a good state of repair. In the consideration of this question all we need determine is whether or not there is any evidence in the record fairly tending to show that she was injured on the crossing, as alleged in her declaration. If there is any such evidence, the motion was properly overruled. John Bright, the husband of appellee, testified that he had their boy in his arms, and when he got to the crossing it seemed to slip to the west, and he stepped quickly to keep from slipping off, and when he got across and while putting the boy down he heard his wife scream. She was twelve or fourteen feet behind him, and when he turned she was in the ditch. He testified that he did not see her fall, but the boards slanted to the west, and the east end was a little higher than the west end and the boards did not lie flat. The appellee herself testified that they walked across the street car track and “started across, and that was when I fell. There was a little board or a sidewalk, or a plank or a board. I went to go across and my foot slipped and went into the ditch, and my knee struck on a board or plank across the ditch.” She testified that when she spoke of the sidewalk she meant the crossing over the ditch,—that is, the boards. The injury was shown to be on the inside of the knee, which tended to show that she slipped in the manner described by her. From these facts and circumstances shown by the evidence it cannot be successfully contended that the injury was not received while attempting to pass over the crossing. The court committed no error in overruling the motion to take the case from the jury.
The court gave eight instructions on behalf of the appellee and six on behalf of the appellant and refused twelve asked by appellant. The giving of those on behalf of appellee and the refusal of those asked by appellant are assigned as error. The argument takes up each of these instructions and attempts to show, at considerable length, why they should have been refused and given. We do not deem it necessary to consider them separately, as an examination of one or two will suffice to show the character of the objections raised.
The first instruction given on behalf of appellee was as follows:
“The jury are instructed that it is the duty of a town or city to use reasonable care to keep all sidewalks and crossings in its public streets in reasonably safe condition, even if the crossing or sidewalk is in the suburbs of the town or city, where less used than in the more frequented streets.”
It is insisted it is erroneous because it does not refer to the evidence, and requires the town to keep all sidewalks and crossings in reasonably safe condition, the contention being, that the issue in this case did not involve all the walks or crossings in the city, but the one in particular;, also, that it is erroneous and misleading in that it refers to crossings and sidewalks in the suburbs, when the law requires that the jury must take into account all the surrounding circumstances, including whether or not the particular crossing is away from the center of the town, how much it is used, etc. It was not necessary that the instruction- should refer to the evidence. The rules of law announced in it were applicable to the case, and it was therefore in no sense the statement of mere abstract propositions of law. The other objections to it are also untenable. (City of Flora v. Naney, 136 Ill. 45 5 City of Decatur v. Besten, 169 id. 340.) The instruction is free from substantial error.
The second instruction, also complained of,- is in the following language:
“The jury are instructed that even if they believe, from the evidence, that the crossing -in question was laid or constructed by a private person in a public street of the town of Normal and was used by the public, yet the town must use reasonable care to keep it in a reasonably safe condition, and the law does not absolve the town from such obligation because the crossing or walk may not have been laid or constructed by the town itself.”
The criticism is that it assumes there was a crossing, and it is said it is a well established principle of law that controverted questions of fact cannot be assumed but must be proven. The rule is admitted, but we are at a loss to perceive its application to this instruction. That there was a crossing of some kind at the point where appellee was injured is undisputed. There is some conflict in the evidence as to the condition of the crossing and the manner in which appellee was injured, but there is and can be no dispute as to the fact that there was a board or boards across the ditch at the point where she was injured.
The fourth of appellee’s instructions is as follows:
“You are instructed that the only care and caution required by Mrs. Bright, the plaintiff, in using the crossing in controversy, was such conduct and care and caution for her own personal safety as a reasonably prudent and cautious person would have exercised under the same condition and circumstances.”
It is said it is in no way connected with the evidence, and also assumes that there was a crossing at the place in controversy. What we have already said must dispose of these objections.
Other objections to instructions are technical, and, in our opinion, without substantial merit.
Some of the refused instructions asked by the appellant were covered by others given and some did not announce correct propositions of law, but aside from these considerations we think those given fully and correctly advised the jury as to all the legal rights of the appellant. The court was not therefore called upon to burden the record by giving others, even though they may have announced correct rules of law.
Our examination of this record leads to the conclusion that there is no reversible error in it, and the judgment of the Appellate Court will accordingly be affirmed.
Judgment affirmed.
