City of Chicago v. McCulloch

Bailey, J. At the trial, evidence of the pecuniary circumstances of the parents and next of kin of the deceased, was admitted against the objection and exception of the defendant, the court, holding at the time that such evidence was competent as bearing upon the question of negligence, although incompetent as tending to show damages. By the,plaintiff’s thirteenth instruction, however, the jury were told tiiat in the assessment of damages they were to act on their own judgment and discretion, based upon the evidence as to the age and character of the deceased, “ in connection with the circumstances of the parents and next of kin, and all the other evidence in the case.” Here, the ruling of the co.nrt made at the time the evidence was admitted was clearly abandoned, and the jury, were instructed to consider in the assessment of damages, all the evidence in the case, including that which related to the pecuniary circumstances of the parents and next of kin of the deceased. This was clearly erroneous, as is shown by the decision of the Supreme Court in Ill. Cent. R. R. Co. v. Baches, 55 Ill. 379; and of this court in C. & N. W. R. W. Co. v. Howard, 6 Bradwell, 569. This error is necessarily fatal to the judgment. There is also error in the plaintiff’s fourth instruction. The proposition is there announced without limitation or qualification, “ that the city was bound to keep the sidewalk in repair.” In City of Chicago v. Watson, 6 Bradwell, 344, we had occasion to review an instruction containing this precise proposition, and it is unnecessary for us to repeat what we then said. It is sufficient to say that a municipal corporation is not bound, absolutely and unqualifiedly, to keep its sidewalks in repair, but only to exercise reasonable care and diligence to that end. City of Chicago v. Bixby, 84 Ill 82; Roberts v. City of Chicago, 26 Id. 249; City of Chicago v. McGiven, 78 Id. 347; City of Macomb v. Smithers, 6 Bradwell, 470; City of Joliet v. Walker, 7 Id. 267; City of Monmouth v. Sullivan, 8 Id. 50. The plaintiff’s sixth instruction is also liable to just criticism. What length of time would be sufficient to charge a municipal corporation with notice of a defect in a street or sidewalk, is a question of fact to be determined by the jury, according to the peculiar circumstances of each case. It must depend upon the nature of the defect, its situation, the degree of its exposure to ordinary observation, and various other circumstances, which in no two cases are precisely alike, and it is therefore impossible to fix, as a matter of law, upon any precise time which would be sufficient to warrant a jury in presuming notice. Courts, in their instructions to juries, should limit themselves to the decision of questions of law, and all questions of fact should be submitted to the jury for their determination. Various other points have been raised by counsel for the appellant, which we do not deem it necessary to consider, but for the errors in the foregoing instructions, the judgment will be reversed and the cause remanded. Reversed and remanded.