City of Joliet v. Verley

Mr. Justice Beckwith delivered the opinion of the Court: The canal trustees built a bridge across the Illinois and Michigan canal, within the corporate limits of the city of Joliet; over which all persons were allowed to pass and repass at pleasure. In determining the liability of the appellant in the case under consideration, it is unnecessary to consider its authority respecting the bridge, or its obligation to keep it in repair. The canal trustees could not, by building a bridge, impose upon the city the burden of keeping it in repair. The legal obligation of a city to repair highways, streets, sidewalks and bridges within its corporate limits, is one voluntarily assumed by its corporate authorities and relates to such as are opened, or constructed, or allowed to be opened or constructed, under its authority, and those which its officers assume control over for that purpose. Until the city assumes control over a bridge erected without its assent or authority it. is not liable for its not being kept in repair. Eor do we deem it necessary to consider the authority of the city over the abutments and approaches to the bridge, with reference to an infringement of the rights of the canal trustees. The city was under no obligation to make approaches to the bridge for the convenience of its citizens. Its obligation in this respect was the same as those in relation to opening new streets and building market houses. Cities are under a political obligation to open such streets and build such market houses as the convenience of the community requires: but courts cannot compel the performance of such duties, or hold them responsible for their non-performance. The canal trustees have never objected that the city made such approaches to the bridge as it thought proper; and so long as they did not object, the city had ample authority to make the approaches and exercise control over them. The city, in the exercise of its authority, undertook to make passage-ways to the bridge, and there can be no doubt of its obligation to exercise its authority so as not to endanger the lives or limbs of its inhabitants. If stone steps leading from an abutment of the bridge, were so situated that no approach could be made which would be safe for the passage of travelers, it was a gross violation of duty on the part of the city in undertaking to make one. Cities have no right to set mantraps throughout their limits, and excuse themselves from liability on the ground that the localities are such that they could not render the places where they were set, safe and secure. If they cannot construct works so that they will be safe and secure, they can let them alone. There is no law requiring city corporations to beguile unsuspecting travelers upon dangerous streets and walks with an assurance of safety. We have no hesitation in saying that the city was grossly derelict in its duty in the construction of the passage-way in question, without having sufficient guards for the protection of travelers. It does not require an expert to show that a narrow passage-way along a precipice of twelve feet, where a misstep or the slightest accident might precipitate the traveler headlong therefrom, is not the degree of safety and security which the law requires. It is not material whether the expense of rendering the walk safe would have been large or trifling, as the city should have forborne to construct the walk if they could not incur the expense of making it safe. The neglect of duty complained of, is that the surface of the walk was not kept in repair. After the city had constructed a walk, it was its duty to keep it in such repair as to enable travelers safely to pass over it. The walk was made of boards or plank which had become loose and warped, so that a step upon them was not firm. The evidence abundantly establishes that the footing of the walk was insecure. It was so narrow that two persons could not conveniently pass over it abreast; on one side the street was raised considerably above the walk, and on the other side there was a precipice of twelve feet. We are of the opinion that travelers have a right in passing along such a place to have, at least, a secure footing, and that it was the duty of the city to provide one. Loose planks, so warped that a traveler cannot step upon them without dangerous oscillation, may, in the opinion of witnesses, make a safe walk over such a place, but they do not furnish a walk having that degree of safety which the law requires. Sidewalks are to be used by common people, and only a few of them are expected to possess the skill of a Blondin in passing over them. It appears that the appellee’s dress caught upon a protruding nail in the flooring of the bridge, but we have not considered it important to inquire whether the accident in any manner hastened or produced the injury. The jury have found that there was no want of prudence and care on the part of the appellee. Accidents are liable to occur to the most prudent and careful; and it was the duty of the city to keep its walks in repair with reference to them. In Hunt v. Pownal, 9 Verm. 411, the court says, “ in every case of damage occurring in the “ highway, we could suppose a state of circumstances in which “ the injury would not have occurred. If the team had not “ been too young, or restive, or old, or too headstrong, or the “ harness had not been defective or the carriage insufficient, no “loss would have intervened. It is against these constantly “ occurring accidents that towns are required to guard in build- “ ing highways. The traveler is not bound to see to it that his “ carriage is always perfect, and his team of the most manageable “ character and in the most perfect training, before he ventures “ upon the highway. If he could be always sure of all this, he “ would not require any further guaranty of safety, unless the “roads were absolutely impassable. If the plaintiff is in “the exercise of ordinary care and prudence, and the injury is “attributable to the insufficiency of the road conspiring with “some accidental cause, the defendants were liable.” In the case under consideration, although the appellee used all proper care and caution, if she had walked a little slower, or a little more erect, or had been a little more observant of the flooring of the bridge, or had not made a misstep, the accident might not have occurred. A sidewalk ought not to be so out of repair that if an accident does happen to a lady’s dress by its being stepped upon, or caught upon a nail, her life will be endangered while- she endeavors to turn around to relieve it, whether such accident occurs as she is stepping on to the walk, or afterwards and while she is proceeding thereon. The correct rule is laid down in Palmer v. Andover, 2 Cush. 600, where the court says, that “where the loss is the combined “result of an accident and of a defect in the road, and the “damage would not have been sustained but for the defect, “ although the primary cause be a pure accident, yet, if there “be no fault or negligence of the plaintiff, if the accident be “one which common prudence and sagacity could not have “foreseen and provided against, the town is liable.” Kelsey v. Glover, 15 Vt. 708; Angell on Highways, p. 275. Taking all the instructions together, the case was properly submitted to the jury, and we are entirely satisfied with the conclusion at which they arrived. The judgment of the court below is affirmed. Judgment affirmed.