McCarthy v. City of Chicago

Mr. Justice Walker delivered the opinion of the Court: This was an action on a penal bond, executed by appellants, to appellee, in the sum of §20,000, the condition of .which recites -: That permission-had been grante'd-by-the ¡Board-of Public Works of "the city of "Chicago" to said'McCarthy, to occupy, .for a period of not exceeding four months, so- much of the south third of Eandolph and the east "third: of - Clark streets as-is situated' in -front of lot Ho. 4,-in block 38; in-the ‘original town/ for the purpose of depositing ""building" mate^ rials,” tó.béhsed'in the construction or repair of a building, etc. on the lot, subject to certain restrictions mentioned in- the permit. --“How-if the said-.McCarthy shall-cease‘to use and occupy the aforesaid -space at the expiration of said permit, on notice from said Board of Public Works, and shall at the expiration, or on'- the revocation of- said permit, • without cost to said city, put the pavement and sidewalks of said- streets in as good, condition and répair'át 'that point as before'the'space was so used and occupied.” = *' * “And shall, indemnify said city, and keep .it harmless from all- judgments ór decrees, with the costs' and • expenses of- the same,-which= may-be-'recovered against said -city,-or any officers théreóf, -in -any .judicial proceeding which may ensue from, or in'-consequence" of, the use of sáid street or sidewalk in the manner" above contemplated, or which may: arise-from any infringement upon or-occupancy of the street outside of the limits above-described, or'by reason of any excavation, opening or obstruction, or other defect that may be made- Or- -left- in-, the street or sidewalk -by said McCarthy, his agent, etc. engaged'in erecting said building,' before the same is fully completed and surrendered to the owner, or by reason of any accident or casuálty that" may occur before the completion of said building, in consequence of the street or sidewalk'not being in good repair and Condition for public travel and use.” It is averred as a breach of this ' condition,' that' appellants had not indemnified the city from all-judgments which had been recovered- against it, by reason of accident or casualty that had occurred before the completion of the building, in consequence of -the sidewalk on the portion of Clark street, mentioned in the bond, not being in good repair'and condition for public travel- and use; that ..after .the execution iof the bond, McCarthy entered into and occupied the premises for the purpose of depositing building materials, until .the. 26th .of, November,. 1864, .and long afterwards; that while so occupying them, .he caused to.be excavated the east margin.of the. sidewalk-,, on that portion.of Clark street, to the.depth of ten feet,. and in width eight-feet, and in length.sixty feet,, which remained there-for. two. months before, the- 26tli of November, 1864; that on the 25th of November, 1864, foefore the. completion of the building, one Edwin R. Beckley, while passing along the sidewalk on the east side .of .Clark street, fell, into the excavation and was injured, . ,, That he thereupon brought a suit against the. city,, in the circuit court of the United Statesior the Northern District-of Illinois, .to recover damages, for. the -injuries sustained, by reason of having fallen .into the pit, and, by the judgment of the court, he recovered: against the. city .$9000 damages..and costs of suit; that appellants .had notice of. that suit; that the city paid, and satisfied the judgment with $6000; A jury was dispensed, with,, and the case tried by the court by consent of the parties. The issues were found for plaintiff, and judgment rendered for the. penalty of the bond as debt, and six thousand dollars damages... The record of the court below is brought to. this, court on appeal, and various errors assigned-. It is first urged that the Board of Public Works acted without authority, in taking the bond upon.which suit was brought, and in annexing the conditions. • It is urged that under the •charter, the board are bound to grant such permits .without bond-or condition. The 12th-sec.,.chap. 6. of .the city charter declares, that the board shall have the exclusive, privilege to grant permits, according to the ordinances of the city, for the moving of houses through the streets of the city, and raising buildings and sidewalks, and to regulate the building or placing vaults under the streets, alleys and sidewalks, and to require such compensation-for the privilege as they shall .deem reasonable .and just, subject to the approval .of the common council, and no building material shall be placed in the streets, etc., without a permit from them. This provision manifestly contemplates the action of the common council, and the regulation of the terms and conditions by ordinance, upon which such permits shall be granted.- If not, why require them to' act under ordinances in granting such permits ? It is not left' to the discretion of the board, nor is -the act absolute in its requirements, as it "contemplates that ordinances will be adopted to regulate the power. The public have an interest in the use of streets and sidewalks in cities* as well as those desiring to erect buildings thereon. And as the obstruction of streets with building" material,, and • the sinking of -deep pits in sidewalks, for the purpose of erecting houses, is always attended with ineonveJ nience to the public, and is not usually free from danger, the right to use the streets and sidewalks for such purposes must be controled by some power, tliat :the- public may be rendered safe, and that nuisances shall not be thus created. As the- city is liable for all injuries, received by reason of the unsafe condition of its streets and sidewalks,- it - -is obvious that it should have the power - to regulate- and control the use of its highways -for such purposes. - Were -it not • for such a provision in its charter, it might well be doubted whether the city could be compelled to permit any portion of the streets to be- thus obstructed. ■ But in requiring the permission to be granted it has given the city the power by ordinance to impose all reasonable conditions.- - And it is not ■ unreasonable to require the builder to indemnify the city for money it may be compelled to pay by reason-of injury growing out of the negligent manner in which- the privilege may be exercised under the permit. • ' - ; At the adoption-of the charter of the city in 1863, thfere was an .ordinance in force, which, in terms* -authorized-the Board of Public Works to impose such rules, requirements, regulations, conditions and instructions, as the board in its discretion might-deem, just and proper for the protection of-the city, in granting such permits. And the same charter declares that all ordinances, regulations and resolutions then in force in the city, and not inconsistent with that act, shall remain in force until altered, modified or repealed by the common council; see chapter 17, section 2, city charter. It is no doubt true, that all such requirements should be reasonable, and not so onerous as to prevent persons from availing themselves of the provisions of the law. In this case the terms and conditions were just and reasonable. It is eminently proper that all persons should be, liable for injuries they inflict oh others, either directly, or through their negligence. And this' is especialy so when the person must know that his acts or neglect of duty will imperil the saféty of others. We perceive no force in "this objection. We now come to the main quéstion in the case, which is urged, with most apparant earnestness by counsel, for a reversal.5 It is urgéd’ that there is a fatal variance between the judgment against the city in favor, of Beckley, as described in the declaration, and the proof on the trial. The declaration avers that the judgment was recovered in' consequence of the excavation made by McCarthy on the east side of Clark street, at the place described in the permit, while, by the record of the judgment read in evidence, the declaration avers that it was in consequence of the excavation, and a failure of the city to maintain lights in the night time, at the place of the accident. This is urged as the principal variance, although others were alleged. In declaring on this bond, appellee was bound to show a breach, and in doing so, was. compelled to describe the judgment with such-accuracy as to identify and distinguish it from others. That has been done in this case, as it designates- the parties,5 the court, the date and amount. It was also necessary to aver that it arose from, and was. the consequence of, the acts of McCarthy, under the permit. The alleged variance does not relate to the description of the bond, but to- the manner of its breach. In averring the breach, the same strictness is not required as in -setting out the instru-i ment or- contract upon which the action is founded. But the manner in which ...the breach; occurred -should. he reasonably specific, enough so to fully apprise- the.defendants ■ of .what is relied upon as .the .breach, but every particular ..need .not be specifically- stated. Ho one, .in this case,;.can. for- a moment, doubt -it would1 be impossible for. Becldey ,to.- have received the injury for • which ■ he. recovered,.-, had. McCarthy,. -not sunk the. pit. That- act. was the prime, cause- and the principal means of. -producing .the injury, and McCarthy had .undeniably, produced it. .The want of lights, like many other circumstances, may have contributed to the accident, but. they were but secondary .or attendant, and not the. primary ¡cause, . Had he not. dug the pit, lights, would.not have been ¡necessary to, prevent the accident. If. lights were necessary, he- had .created that necessity, and should have provided the means of avoiding the injury. It is manifest^ then, that the injury was.in consequence of the sinking*of the hole for the vault....... Having made'..the excavation, he should have- used .every precaution to secure public safety,, and it,is not for. him to. say it was for the want of lights and should not.beheld.liabl.e because the city had not erected.them,.. The scope of.his bond,was, that he would pro.tect-the city from-damages., growing out of. the manner in. which he should use the streets and, sidewalk. And, even if lights were necessary, he-had rendered them: so., and it was, as averred in .the. declaration, in consequence of the excavation and defect in the .sidewalk which.be had produced,. As to the alleged variance between the places described, in the two -declarations, we fail to perceive it, if any .exists, . One is more minute and detailed in -the. description .than the .other, but in both the place is described as .being o.n. the east side of Glark street. -. , . - Appellants did not introduce any evidence to prove that there, were two different places described.. And we will -presume that the court below was familiar with the- locality, ..and from the description knew; it -to be but one and the same place. • We are, for these.. reasons, of. opinion.,that.the judgment of the court below must he affirmed. .. . Judgment affirmed..