Kenyon v. Chicago City Railway Co.

Mr. Justice Scott delivered the opinion of the court: It is urged that a verdict for the defendant should have been directed because it was not affirmatively shown by the proof introduced that the cinders were dumped in the street without the permission of the city. It is true that the city may, for certain purposes, permit the placing of temporary obstructions in the street. No authority is cited which would warrant the conclusion, however, that the city had the power to permit the dumping of these cinders in this street for the purpose of delivering them at that point to the sidewalk contractor who under a contract with a private party was building a sidewalk in a street two blocks distant, which latter street ran parallel with the street- in which the cinders were placed. In any event, placing an obstruction, such as the one involved in this case, in the street is prima facie unlawful. If the person so placing the obstruction relies upon an express license obtained from the city, the burden is upon him to show the existence of the permit; or, if it is his contention that the obstruction is- of a character such as he may lawfully place in the street without any express permission from the city authorities, then such circumstances must appear in proof. Here there .was no evidence of , such license or of such circumstances. It is also contended that as by the contract between appellant and the sidewalk-builder the cinders were to be delivered at this place, after the cinders were so delivered appellant was not responsible for the continuance of the obstruction in the .street, but that the duty to properly guard and remove the cinder pile rested solely upon the contractor. The appellant is not permitted to thus avoid responsibility. Having placed an unlawful obstruction in the street its liability for the consequences thereof continued, notwithstanding it may also have been the duty of the contractor to remove the obstruction. (Woodman v. M. Railroad Co. 149 Mass. 335.) Appellant placed this obstruction in this street at its peril. It was bound to answer for the consequences. The declaration charged that the appellant failed to maintain a warning light upon the cinder pile on the night in question. After the cinders were in the street, the' first and most imperative duty that rested upon appellant and the contractor was to remove them. After they were there, however, and until they could be removed, it was the duty of appellant, as well as the contractor, to guard the public against any injury from the obstruction. What has already been said in reference to the obligation to remove the obstruction disposes of appellant’s "insistence that the only duty in respect to maintaining a warning light after nightfall rested upon the contractor and not upon appellant. It it also argued that it should be held upon this record that appellee was guilty of contributory negligence as a matter of law, and appellant introduced in evidence an ordinance of the city of Chicago which was in force at the time of the accident, providing that no person should drive a horse in the city of Chicago at a greater speed than six miles per hour. It is contended by appellee that this ordinance does not apply to firemen or other members of the fire department who are responding to a fire alarm. The proof shows that the appellee was driving at a speed of nine or ten miles an hour at the time of the accident. As he drove along, both he and his companion in the wagon kept a sharp lookout ahead for obstacles but failed to see the cinders on account of the darkness.. It is also urged that appellee should have traveled between the rails of appellant’s tracks, and that had he done so no injury would have occurred. Outside the rails the street was paved with cedar blocks. The latter made a better footing for a horse driven at the rate at which appellee was driving than the paving between the rails. There is no evidence that appellee knew of the existence of this cinder pile in the street. Even if it be conceded, which we do not determine, that the ordinance referred to applied to the appellee, the question whether, under all the circumstances appearing in evidence, any negligence of which he may have been guilty in driving his horse outside the rails at a speed of nine or ten miles an hour contributed to the accident was one of fact for the jury. The motion for a peremptory instruction was properly refused. The only instruction given at the request of the ap-pellee stated the hypotheses upon which the jury might find the appellant guilty. Based upon the proviso that appellee was free from contributory negligence, it stated the facts which would warrant the jury in finding appellant guilty. That portion of the instruction stating the circumstances which must appear in evidence to show that the acts of the appellant were wrongful was not entirely accurate, but the inaccuracy was harmless. Appellant was guilty of the negligence alleged against it upon the -facts which it conceded to be true. There was no possible theory upon which the jury could have found that it had not been negligent as charged. Defendant asked the court to instruct the jury that the plaintiff could not recover on the mere ground, alone, that the defendant deposited the cinders in the street. He did not seek to recover on that ground alone, and the instruction would have been misleading in its tendency. Complaint is also made of the refusal of another instruction asked by the defendant. That instruction stated an abstract proposition of law, and for that reason its refusal was not error. The judgment of the Branch Appellate Court will be affirmed. T , . , Judgment afhrmed.