City of Sterling v. Merrill

Mr. Justice Magruder delivered the opinion of the Court :• This is an action, brought by Lucy A. Merrill against the-city of Sterling in the circuit court of Whiteside county, to recover damages for a personal injury. About six o’clock in the-evening on November 14, 1884, the plaintiff was walking north, on the east side of B street in Sterling when she stepped into-a hole in the sidewalk and was thereby thrown to the ground, receiving the injury complained of. The trial resulted in a. judgment in her favor for $2000, which has been affirmed by the Appellate Court, and is now brought, by appeal, to this-court. All the questions of fact are settled by the judgment of the-Appellate Court. No points are made in regard to the admission or exclusion of evidence. The main ground insisted upon for a reversal of the judgment is the refusal of the trial court to give three instructions asked by the defendant. By the first of these refused instructions it was said, that, if the jury should believe from the evidence, “that the plaintiff might, in the exercise of ordinary care and caution, have avoided the opening in the sidewalk, and that her omission so to do was the direct cause of the injury complained of, then .she was guilty of such negligence as will prevent a recovery in this case.” Correctly expressed the idea of this instruction is simply that the plaintiff, in walking along the sidewalk of the •city as she had a lawful right to do, was required to exercise •ordinary care and caution. This idea was very clearly embodied in the third instruction given for the defendant and in ■several instructions which were given for the plaintiff. Its .repetition in a further instruction was, therefore, unnecessary. The second of the refused instructions referred to is as follows : “If the jury believe from the evidence that the sidewalk in question, where the plaintiff claims to have received her injury, was repaired and placed in good condition by the ■city within a reasonable time prior to this alleged accident, and if the jury believe from the evidence that said walk after-wards became out of repair without actual notice to the city, then the plaintiff can not recover.” This instruction is obscure and calculated to mislead. It is not essential to a recovery, in a case of this character, that the evidence should show actual notice to the city. (City of ■Chicago v. Dalle, 115 Ill. 386.) If the opening in the sidewalk had existed for such a length of time before the accident as that the city authorities might have discovered it by the use •of reasonable diligence, then the city will be presumed to have had notice of it. This principle was announced in the fourth instruction given for the plaintiff and in the second instruction given for the defendant. The latter told the jury, that the plaintiff could not recover unless it was “proven that the sidewalk in question was unsafe, and that the defendant had actual" notice of the defect * * * or that such defect was of such .long continuance that the defendant, by the use of ordinary care and prudence, ought to have discovered the defect,” etc. This was a correct statement of the law, and contained all that was material or essential in the second refused instruction. Instructions must he based on evidence. There was no evidence that the defendant had at any time repaired the sidewalk at the point where plaintiff was injured. It is undisputed that there was a defect at that point, and the question to be determined was whether.such defect had existed a sufficient length of time to affect the city with notice of its existence. It is not clear what is meant by the expression, “within a reasonable time prior to this alleged accident.” The city was bound to exercise reasonable prudence and diligence-in the construction and maintenance of its sidewalks. But just what period of time, between the alleged repair of the sidewalk and the happening of the accident, should be regarded as reasonable, and for what purposes it should be regarded as reasonable, is not apparent under the circumstances of this case. Instructions should not be obscure and misleading, but should be expressed in clear and precise language. (Irish v. Newell, 62 Ill. 196; Congregational Society, etc. v. Hubble, id. 161.) The third refused instruction was to the effect, that, if the jury should believe from the evidence, that the plaintiff, by the ordinary exercise of will on her part, could have used her arm for the ordinary purposes of life at or shortly after the injury complained of, and that she refused or neglected without cause so to do, then the disability or impairment of her arm since then, resulting from such neglect and refusal, was not an element of damage, for which recovery could be had, and that, under the law, a person injured should, in good faith and in the exercise of all reasonable means, strive not to augment but to cure or mitigate a physical disability incurred. Whether or not this instruction laid down a correct proposition of law is a question which it is unnecessary to discuss. There was no error in refusing it for two reasons. In the first place, there was no evidence to support it. Appellant introducecl certain medical testimony to show, that refusal to use or exercise an arm that had been injured in the way, in which plaintiff’s arm was injured, tended to make it useless and stiff in the joints and wanting in flexibility, etc. But there was no proof to show that plaintiff purposely failed to use her arm or neglected to exercise it in a proper way so far as she was able to do so. In the second place, the substance of this instruction was embodied in the seventh instruction given for the defendant. On the motion for new trial appellant read certain affidavits setting up the discovery of what was claimed to be new evidence. It is contended, that the court erred in not granting the motion for the reasons stated in the affidavits. The newly discovered evidence is merely cumulative and not conclusive in its character. A verdict will not be set aside to permit such evidence to be introduced. (Kendall v. Limberg, 69 Ill. 355.) We are of the opinion, that the trial court committed no error either in refusing the instructions complained of or in overruling the motion for new trial. The judgment of the Appellate Court is affirmed. Judgment affirmed.