Graham v. City of Rockford

Mr. Justice Vickers delivered the opinion of the court Emma D. Graham brought an action on the case against the city of Rockford to recover damages for a personal injury sustained by her by reason of falling into a hole in a plank cross-walk in the said city. She recovered a judgment for $3000 in the circuit court of Winnebago county, which judgment the Appellate Court for the Second District affirmed after requiring a remittitur of $1500. The city of Rockford has prosecuted a further appeal to this court. At the close of appellee’s evidence, and again at the close of all the evidence, appellant entered its motion for a directed verdict in its favor, and accompanied the motions with appropriate instructions for that purpose. The ruling of the circuit court in denying this motion is the first error relied on by appellant. The question raised under this assignment of error is as to the sufficiency of the notice served by appellee upon the city of her injury prior to the commencement of the suit. The objection to the notice is not apparent upon its face. No objection was made at the time the notice was offered in evidence nor is there any pointed out now to the form of the notice. The objection is that the notice names Dr. F. H. Kimball as the attending physician, whereas appellant contends that on the trial the fact was developed that Dr. James also attended appellee and treated her for the injuries complained of. The record shows that appellee called Dr. James as a witness, and appellant objected to Dr. James testifying on the ground that Dr. F. H. Kimball, and no other physician, was named in the notice. Upon this objection being made to Dr. James testifying, appellee excused the witness and no testimony was given by Dr. James. The fact was subsequently brought out by other testimony that Dr. James had attended the appellee once after the injury, but does not show that such attendance was for the purpose of treating her for the injuries received in this accident. The evidence shows that Dr. Kimball was the regular attending physician and gave appellee all the medical treatment she received for her injuries. The Appellate Court reached the conclusion, under the evidence, that Dr. James was not the attending physician. It was not necessary, therefore, to mention the name of that physician in the notice. Appellant contends that the court erred in giving instruction No. 5 on behalf of appellee. The substance of that instruction is, that the jury were instructed that in determining the question whether the appellant had exercised ordinary care and diligence in keeping the walk or street in question in a reasonably safe condition they might take into consideration, so far as the facts were shown by the evidence, the material of which the walk in question was constructed and the condition of the walk or street with reference to decay and the probable need of repair, if such matters appeared from the evidence. The evidence was that the injury occurred by appellee falling through a hole in a plank culvert constructed across an open drain. The complaint made by appellant to instruction No. 5 is, that it was calculated to suggest to the jury that the city might be guilty of negligence in selecting wood instead of cement, tile or some other material for this crossing. We do not think that the instruction is open to the objection thus made. Appellant also objects to instructions 8 and 9 given on behalf of the appellee. These instructions both state correct propositions of law. The objection to both of them is that they employed the words “walks and streets,” in reference to which the duty of the city is correctly stated. The place where the appellee was injured was not technically a street or a sidewalk, but it was a public place where people walked in crossing from one street to another and in respect to which the city sustained the same relation it does - to streets and sidewalks. Appellant does not contend that the city was not required to exercise the same degree of care to keep the crossing in question in reasonably safe condition that the law imposes on it in regard to streets and walks. The mere fact that the place is classed in the instruction with walks and streets in defining the degree of care which appellant owes is an objection of no serious consequence. There was no error in giving these instructions. Instruction No. io is as follows: “The court instructs you that it is the duty of a city in this State to use reasonable care to keep its walks and streets in a reasonably safe condition for public travel by those who are in the exercise of ordinary care for their own safety; that .where a walk or. a public street remains in an unsafe condition for a considerable time, and such a length of time that the city authorities, in the exercise of ordinary care and diligence, should have discovered such condition and remedied it, then notice to the city of such defective or unsafe condition of such walk or street is presumed.” The objection made to the foregoing instruction is, that it inferentially tells the jury that the walk or street in controversy was in an unsafe condition for a considerable time,—such length of time that appellant, in the exercise of ordinary care and diligence, should have discovered the defect,—and that notice of the defect should be presumed; that the instruction assumed as proved, facts that were controverted in regard to knowledge of the defect and want of diligence in repairing it. We do not think the instruction is open to the objection made to it. What has already been said with reference to instructions 8 and 9 applies to this instruction. It seems to have been conceded on all hands during the trial that the city owed the same duty in keeping the place where the accident occurred in repair that it did in respect to sidewalks and streets, and this being true, the court, in laying down the rules of law applicable to the facts, uses the terras “walk” and “public street.” The instructions would have been free from any criticism if they had stated the rule and applied it to the crossing where the injury occurred, instead of introducing the abstract form by using the more familiar words “wálks” and “streets.” We fail to see how the jury could have been misled by any of the instructions complained of. Other instructions given are referred to in appellant’s assignments of error but are not discussed in its brief and argument. The judgment of the Appellate Court for the Second District is affirmed. . Judgment affirmed.