Village of Lemont v. Rood

McAllister, J. It is not claimed in this case that the village of Lemont was not authorized by law to make the improvement, in the course of which the excavation or ditch in question became necessary. Nor is it claimed that the corporation did not owe to the public the duty of keeping its streets in a reasonably safe condition for travel Tooth by day and by night. But although the corporation had the legal authority to make the ditch or excavation for such purpose, yet the law required it, while pursuing the work, to use reasonable precautions for the security of the public, such as barriers, lights or otherwise. And it is well-settled law that for a breach of such duty, where a person in the exercise of ordinary care is injured through the neglect of such reasonaFe precautions, an action will lie for such injury. Storrs v. The City of Utica, 17 N. Y. 104; Brooks v. Inhabitants of Somerville, 106 Mass. 271; Morton v. Frankfort, 55 Maine, 46 ; Silvers v. Neidlinger, 30 Ind. 53. Two things must concur to support this action: an excavation or ditch in the street, suffered to remain at night without light or barriers, through the fault of the defendant, and no want of ordinary care on the part of the deceased to avoid falling into it. Butterfield v. Forester, 11 East, 60 ; Smith v. Smith, 2 Pick. 621. That is the settled law in this State. C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 521, where the court says : “ To maintain an action for negligence, there must be fault on the part of the defendant, and no want of ordinary care on the part of the plaintiff.” Instead of submitting to the jury, in clear and intelligib'e language, the question whether the deceased was in the exercise of ordinary care on the occasion of the injury, each of the three instructions given to the jury on behalf of the plaintiffs, uses only the following words: “While in the exercise of care proportionate to the known danger (if such danger there was, and if it was known to the deceased), to protect himself from injury.” Whether or not the deceased was, at the time of the disaster to him, in the exercise of ordinary care to avoid it, Avas a vital question in the case, and its determination by the jury depended entirely upon circumstantial evidence. It is plain, therefore, that it was necessary to a proper conclusion by the jury upon that question that the instructions of the court in respect to it should have not only stated the law correctly but have been so clear and unambiguous as to have no substantial tendency to mislead. Those for plaintiff, to which we have referred, wholly omitted to state the rule of ordinary care on the part of deceased, but substituted another and different rule, not equivalent to that of ordinary care, and in terms so ambiguous as to be likely to confuse and mislead. But they admit of the construction that deceased was subject to no duty as to care and prudence beyond what danger was actually known to him. Whether that meant danger which was formerly or then known to him is left in doubt. So that if the jury should find that he formerly knew of the ditch, or even the danger, but at the time he, for any cause, then failed to remember it, so that he did not hnow of the danger at the time, he was then subject to no rule as to care on his part. A person may have had a general knowledge of a source of danger previously to an injury from it, and such knowledge will not necessarily prevent a recovery, if under the circumstances he might still, in the exercise of ordinary care or prudence, be unaware of his proximity to it, as by having his attention distracted from it by some sufficient cause. 2 Thomp. on Neg. 1204; Nicks v. The Town of Marshall, 30 Wis. 139; Pollard v. Woburn, 104 Mass. 84; George v. City of Haverhill, 110 Mass. 506; Bassett v. Fish, 75 N. Y. 303; Weed v. Village of Ballston Spa, 76 N. Y. 830. We are of opinion that the instructions were erroneous in the particular stated, for which error the judgment must be reversed and the cause remanded. Judgment reversed.