Tomle v. Hampton

Mr. Justice Magruder delivered the opinion of the Court: This is an action of case, begun on September 26,1884, in the Circuit Court of Kane County, by the appellee by her next friend against the appellant to recover damages for injuries, received by appellee from a fall through a hole in the stone sidewalk platform below the show window of a store, owned by the appellant, fronting on Wilson Street in the town of Batavia. The judgment of the trial court was in favor of the plaintiff and has been affirmed by the Appellate Court. From the latter court the case is brought before us by appeal. The appellant owns a building consisting of three stores fronting south on Wilson street, which runs east and west. The middle store at the time of the accident, which occurred on October 10,1883, was occupied by tenants of the appellant named Vincent & Patchin, druggists. The store was first leased by the plaintiff to Vincent & Patchin in the spring of 1880, and again in the spring of 1883. The building stood back six feet from the sidewalk, and appellant had laid stone flagging between the stores and the sidewalk, forming a stone walk or platform six feet wide in front of the stores, and slightly raised above the level of the sidewalk. It was necessary to step up upon this platform to enter the stores, and persons passing along the sidewalk walked upon it and stood upon it to look into the show windows. The drug store had a basement about nine feet deep with an outside entrance from the stone walk. The appellant had put a show window in the drug store for his tenants, and just below this window there was an opening to the basement, five feet long and ten inches wide, without any railing or protection of any kind. The opening was there before the premises had been rented to the druggists. After dark on the evening of October 10, 1883, the appellee, then a girl nine years old, went to the drug store on an errand for her parents, and, stopping in front of the window to look at some articles on exhibition there, fell through the opening into the vault below, and received the injuries, for which the suit is brought. The appellant questions the correctness of the instructions-given by the trial court, because they hold that there can be-a recovery against the owner of the property under the foregoing state of facts. It is contended that, if the plaintiff below had any right of action at all, it was against the tenants who-were in the occupancy of the premises when the accident occurred. As a general rule the occupant, and not the owner, is responsible for injuries arising from a failure to keep the premises in a proper state of repair. But one of the exceptions to-this rule is, “where the premises are let with a nuisance upon them by means of which the injury complained of is received.” In such case the owner is liable. (Stephani v. Brown, 40 Ill. 428; Gridley v. City of Bloomington, 68 id. 47; City of Peoria v. Simpson, 110 id. 294). In the present case it is admitted, that the opening through which the plaintiff fell, existed without any guard or protection before the lease was made to the tenants. It is claimed, however, that the opening in the stone platform was not a nuisance within the meaning of the exception to the rule. One of the reasons urged in favor of this position is, that the opening was upon the premises of the appellant, and, therefore, not a part of the street. Although the area under the stone platform was a part of the appellant’s property, yet he so constructed the platform that the latter was really a part of the sidewalk. It was so situated with reference to the sidewalk that any person could walk upon it, or make use of it in approaching the store or the show window. It was subject to the constant use of the general public in passing along in front of the store. If a man connects a part of his own premises with a public sidewalk, he thereby invites the public to treat the part so connected as-belonging to the sidewalk, and cannot be heard to say that the whole is not a public way. Therefore, the opening in the-platform, or raised portion of the sidewalk, was as much a nuisance as though it had been in the lower level of the main walk. A nuisance is anything that worketh hurt, inconvenionce or damage. (3 Bl. Com. 216). It is admitted that the appellant made the opening below the show window as it was when the appellee was hurt. He was therefore, the author of the nuisance, and, being such author, when he leased to others, he was guilty in law of continuing the nuisance. He rented the premises with the original wrong attached to them.. The lease affirmed the continuance of the wrong. He received rent as a consideration of the continuance, and should answer for the damage it occasioned. (Stephani v. Brown, supra). The evidence tends to show, that, before the accident happened, the attention of the appellant was called to the dangerous character of the opening, and he was advised to fix it by Patchin, one of his tenants, and by the road commissioner appointed by the trustees of the town of Batavia. These warnings, however, he neglected to heed. We are of the opinion, that the instructions were not erroneous in holding, that a recovery could be had against the owner of the store, if the jury should find a recovery authorized by the evidence. The appellant objects to the second instruction given for the plaintiff, because it fails to mention the exercise of ordinary care on the part of the plaintiff as being necessary to justify a recovery. Even if the second instruction was erroneous in this respect, we do not think that the defendant was injured thereby when all the instructions are read together. In several of them the jury are told that the plaintiff must have been in the exercise of ordinary care. In one of them, given by the court of its own motion, occurs the following: “It is another rule of law, that, though the defendant may be .guilty of negligence, the plaintiff cannot recover unless she was in the exercise of ordinary care and caution to avoid danger.” In still another the person entitled to recover is described as "’‘a person in the exercise of reasonable care and diligence in using such approach for the purpose for which it was constructed.” It is claimed that the object of the opening was to admit light to the basement below, and that, if it was reasonably necessary for that purpose, the appellant is not chargeable with negligence for placing and keeping it there. Where a ■man invites the public to use a part of his land by connecting it with the public sidewalk, he must exercise due diligence to keep it in a reasonably safe condition. This obligation rested -upon the appellant in reference to the hole in the stone platform. If the hole was needed to get light for the basement, and it could have been made to serve that purpose in a safe ■condition, as well as in an unsafe condition, then it was appellant’s duty to make it safe. The evidence tends to show, that it could have been protected by a railing, or in some other mode, so as not to be dangerous to persons passing by, and yet at the same time so as to furnish the needed light. This view was fairly presented to the jury by the instructions. They were told that the appellant was only bound to use due care to make the opening reasonably safe, and to keep it in a reasonably safe condition, and that, if he complied with this requirement of the law, he had a right to make it subserve the purpose of furnishing light to his basement. All questions as to the amount of the verdict and the character of the injuries received by appellee are settled by the judgment of the Appellate Court. We perceive no error in the record, which will justify a reversal. The judgment of the Appellate Court is affirmed. Judgment affirmed!.