City of Monmouth v. Sullivan

Pillsbuet, J. The duty is imposed upon a city having control of the streets and sidewalks therein, to exercise reasonable diligence to keep and maintain the same in a reasonably safe condition for the use of those having occasion to use them for any legitimate purpose, such persons exercising at the time ordinary care for their own safety. And it is only for a neglect to perform such duty, and an injury resulting therefrom, that creates a liability upon the part, of the city, to respond in damages. This liability to a party injured is commensurate only with the duty owing to such person at the time, and under the circumstances existing when the injury was sustained. The owner of premises, who, by his procurement or invitation expressed or implied, induces another to enter thereon, impliedly warrants that the premises are reasonably safe for the protection of the person thus acting upon such invitation, if he exercises ordinary care upon his part, and in the use of the premises confines himself to the purpose for which they appear to be designed and adajited. The person thus entering upon premises, presumably prepared for his use as well as others, and appearing to be adapted to the purposes for which they are designed to be used, has a right to assume that the obligation resting upon the party owning them has been faithfully fulfilled. So, with streets and sidewalks in cities. The very existence of a sidewalk, built and maintained under the authority of the city for the use of pedestrians is an invitation and an inducement for persons to use it as a way, who have occasion, and an implied warranty on the part of the city that it is reasonably safe for travelers using due care for their own safety. A sidewalk is presumably designed as a way for travelers only, and its sufficiency when the question is presented for judicial determination should be determined with reference to such use and purpose, unless the proof shows that it was allowed to be otherwise used as in city of Lacon v. Page, 48 Ill. 499. The duty of the city to furnish protection to those using its sidewalks, extends to those only who use them for the well known purposes for which they are constructed and maintained. We do not understand that cities are required to fence the streets to prevent persons from driving out of the limits, or to erect barriers along the sidewalk sufficient to prevent travelers or others from voluntarily leaving the walk for their own convenience if they shall so desire. Where there is a steep bank or other dangerous place so near the sidewalk as to make the walk itself dangerous as a way, or to expose travelers to injury through some accident or mischance, that might be reasonably expected to follow therefrom, as incident to the use of the walk in such condition, the city should be required to erect a railing to protect those thus using the walk from such apparent danger. If we are correct in the views above expréssed concerning the duty of cities to those using its walks, the case at bar is easy of solution. It appears from the evidence, without contradiction, that the plaintiff voluntarily stepped off the inner edge of the sidewalk, for the purpose of using the adjoining lot for her own convenience. This lot had never been designed by the city for such use, nor were its surroundings such as to lead the plaintiff to suppose that it was intended or adapted for such, or that she could enter thereon from the sidewalk safely for such purpose, or any other. The city had done nothing, either in the construction of the walk or otherwise to induce, entice or invite the plaintiff to leave the walk at this point; neither was there anything to indicate to her, or any one else, that the space between the two buildings was a passage way for travelers, or that it could be safely used for the accommodation of persons in the then situation of the plaintiff. The plaintiff, as it seems to ns, does not occupy a more favorable position than a mere licensee, and as to such it appears to be well settled that if they enter upon premises they accept all the attending perils. Palmer v. Portland, Pub. Co. 9 Gout. L. J. 108; Balch v. Smith, 7 Hurls. & Norman, 736. The fact that a railing was necessary at the point where the plaintiff left the sidewalk, to prevent persons passing along the walk from falling off and becoming injured through some mischance incident to travel thereon is entirely immaterial, as it does not appear that the act of the plaintiff in leaving the walk was under circumstances entitling her to claim the benefit of the obligation due from the city, to the traveling public. In the absence of a duty to perform some act or service for the security of the plaintiff, there can be no fault in non-performance so far as she is concerned, although such duty may be owing to her and others under different circumstances. Another insuperable objection, in our opinion, exists to a recovery in this case. We deem it gross negligence for a person to step off the inner edge of a sidewalk, at a space between two buildings in a block, without making any investigation as to the condition of the ground beneath the walk or the distance to it. The plaintiff says she was a stranger to that locality and did not know how high the walk was from the ground, but she assumed that it was the same distance as at the curb-stone. There is nothing in the evidence tending to show that there was anything connected with the walk or its surroundings at that place to justify such an assumption. It would have been a very easy matter for her and her companion to have ascertained whether it would be safe to leave the walk, and common prudence would require that they should have done so before taking the step that led to the injury. We are of the opinion that the plaintiff has shown no right of recovery in this case, and therefore reverse the judgment of the court below, and remand the cause, without noticing minor points made in the case. Judgment reversed. Pleasants, J., took no part in the decision of this case.