Purcell v. City of Chicago

Mr. Justice Dunn delivered the opinion of the court: The court did not err in refusing to instruct the jury to find the defendant not guilty. The hole of the size mentioned made a dangerous condition of the street. Such condition had continued for many months. The surface of the street at that point was covered with water and wagons obstructed the street on either side. Whether appellee was in the exercise of ordinary care in driving between the wagons and along the middle of the street was a question of fact for the jury. It is the duty of a city to use reasonable care to keep all its streets in a reasonably safe condition for the use of the traveling public. City of Flora v. Naney, 136 Ill. 45; City of Decatur v. Besten, 169 id. 340; Town of Normal v. Bright, 223 id. 99. Objection is made to the second, third, fifth and seventh instructions. The second is as follows: “The jury are instructed that the defendant is bound to use reasonable care and precaution to keep and maintain its streets in reasonably good and sufficient repair to render them reasonably safe for all persons passing on or over the same, and if the jury believe, from the preponderance of the evidence, that the defendant failed to use reasonable care and precaution to keep its street in such repair, and that the injury complained of resulted from that cause, as charged in the declaration, and that the plaintiff sustained damage thereby while exercising ordinary care, then he is entitled to recover in this suit.” It is objected that the phrase, “the plaintiff sustained damage thereby while exercising ordinary care,” has no reference to the care required of the plaintiff at the time of the injury, but only to ordinary care regarding the damages. The jury was instructed on behalf of the defendant that the plaintiff, in order to recover, must show that he was, at the time and place in question, in the exercise of due care and caution for his own safety, and that if he was himself negligent he could not recover. The jurors were told that the instructions given them were one connected series, to be applied to the facts as a whole, and it is impossible that this instruction could have misled them as to the time and place of the requirement of ordinary care of plaintiff. It is also said that the instruction required the city to keep its streets safe for all persons passing over them, whereas it is only required to keep them safe for persons who, in using them, are exercising reasonable care for their own safety. The instruction was not misleading in this respect, for, as applied to the case, it does require the plaintiff to have been injured while exercising ordinary care, and the safety of the street, so far as others were concerned, is not within the scope of the instruction. While not free from cause for criticism, the instruction was not in this case misleading. The third instruction was approved by this court in Chicago and Alton Railroad Co. v. Pearson, 184 Ill. 386, the fifth in North Chicago Street Railroad Co. v. Kaspers, 186 id. 246, and the seventh in Cicero and Proviso Street Railway Co. v. Brown, 193 id. 274, and Chicago and Milwaukee Electric Railway Co. v. Ullrich, 213 id. 170. The first sentence might better have been stricken out of the third instruction, but it was not error to give it. The judgment is affirmed. Judgment affirmed.