27 Ill. App. 43 | Ill. App. Ct. | 1888
The village of Jefferson, the appellant, is a municipal corporation, created under the general statute relative to cities and villages in this State, by which the corporation is invested with ample powers in trust for the purpose, and from which the legal duty to the public arises, of keeping its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by day as well as by night, by all persons in the exercise of ordinary care. 2 Dillon on Mun. Corp., 3d Ed., See. 1019. And it is the general, well settled law in this State, that such corporation is liable to any party injured while exercising such care, by reason of a breach of that duty. Browning v. City of Springfield, 17 Ill. 143; City of Bloomington v. Bay, 42 Ill. 503; City of Rockford v. Hildebrand, 61 Ill. 161.
We are of opinion that the verdict in this case was fully justified by the evidence. Counsel for appellant contend, that if the work upon the street and ditch in question was done by an independent contractor over whom, in doing such work, the village authorities had no control, and the work contracted to be done was not itself dangerous, then the village would not be liable and the remedy must be held that the trial court erred in rejecting the respective offers of evidence on defendant’s behalf to that effect.
The difficulty with the counsel’s position is, that one essential element is wanting in each of the offers made. Neither of them can fairly be construed as embracing any proposition to prove anything beyond the mere facts of there being a contract between defendant and Goven for doing the work in question; that it was done by the latter under such contract; and that, by the terms of the contract, the defendant had no control over the contractor as to its performance. On neither offer was there any intimation of a purpose or desire to prove that the work contracted for was not of itself dangerous, or would not necessarily render the street defective or unsafe or dangerous for travel, or that the removal of the apron, which formed a part of the cross-walk over the ditch was not a necessary incident to the doing the work contracted for.
The evidence tended to show that the removal of said apron was a necessary incident, and that it would render the crossing defective and dangerous, especially in the night time, on account of the width and depth of the ditch.
If the removal of the apron was a necessary incident of the work directed to be done, and it would necessarily render the street defective and dangerous for the purposes of travel, unless such apron was restored in a reasonably safe condition, or the place provided with guards or protection, then the defendant was subject to the statutory obligation or duty to the public to make such restoration or provide such guards or protection; and failing therein, the defense that the work was done by an independent contractor is wholly inadmissible-The defendant, under such circumstances, must, in the eye of the law, be regarded as the direct author of the nuisance which resulted in the injury to the plaintiff. 2 Dillon, supra, Secs. 1029, 1030 and 1031; City of Springfield v. Le Claire, 49 Ill. 476; Joliet v. Harwood, 86 Ill. 110; Lockwood v. Mayor, 2 Hilt. 66; Storrs, v. Utica, 17 N. Y. 104; Savannah v. Waldner, 49 Ga. 316; Murphy v. Lowell, 124 Mass. 564.
If we are correct in the above views of the law, then it must follow that there was no error in rejecting said offers of evidence, because,' taking them as they were respectively made, the evidence proposed was immaterial, and it was not admissible for the purpose for which it was offered. If it was admissible for any other purpose, or by having some other matter coupled with it, then it was the duty of the counsel making the offer to specify such other purpose or matter, and failing to do so, the exception must fail. The party making the offer must be confined in the Appellate Court to the specific offer which lie made at the trial. Wheeler v. Rice, 8 Cush. 208, and cases there cited; Beard v. Dedolph, 29 Wis. 136; Jones v. The State, 11 Lea (Tenn.) 468.
The only other point we deem worthy of mention, is the refusal to give the several instructions asked for defendant and set out in our statement of the case. The pith of them all is as to the requirement of notice to the defendant corporation of the obstruction or defect in the street, as an element of the cause of action.
It is true that the first count in the declaration sets out a cause of action wherein such requirement is a necessary element. But the second and third counts respectively charge the defendant as the direct author of the nuisance in the street and as for acts of positive misfeasance. In such a case, notice to the corporation by lapse of time or otherwise, is unnecessary. City of Chicago v. Johnson, 53 Ill. 91.
The case was tried on behalf of plaintiff wholly upon the theory of the defendant being the direct author of the nuisance, and the evidence supported that theory. In each of the instructions in question, that feature of the case is wholly ignored; for that reason they were properly refused. To have given them would simply be the giving instructions calculated to mislead the jury.
We think the merits of the case were clearly with the plaintiff-; that ihe verdict is well supported by the evidence ; and that, taking the instructions all together, the jury was fairly and properly instructed as to every material point of law. The judgment should be affirmed.
Judgment affirmed.