Village of Carterville v. Cook

Green, P. J. We have been favored by counsel for appellant with an elaborate argument, fortified by quite an array of authorities, in support of its contention that a municipal corporation ought not to be held liable to respond in damages, in an action on the case, to one injured while in the exercise of reasonable care, in consequence of the officers of the corporation negligently permitting its sidewalk to be and remain in an unsafe condition. We regard this as no longer an open question in this State; by our statute municipal authorities are given entire control of the streets in the corporation, and thereby the duty is imposed upon it to keep its streets and sidewalks, which are a part thereof, in a reasonably safe condition and repair for the use of persons traveling on the same, and an action will lie against such corporation on behalf of one who, in the exercise of reasonable care, sustains injury by reason of the negligent failure to perform such duty, to recover his damages occasioned by the injury. This has been held to be the law in this State in repeated decisions of our Supreme Court, and, among other cases, in Bloomington v. Bay, 42 Ill. 503; Chicago v. Keefe, 114 Ill. 222. The rule so established is wise and salutary. Officers of municipal corporations organized and exercising corporate powers in this State, knowing this to be the law, will exercise greater vigilance in caring for and keeping in repair and safe condition streets and sidewalks, thereby decreasing the danger of accident and injury to persons using the same; and in this connection we deem it proper to dissipate an apprehension which the learned counsel for the appellant seem to entertain— that this court may so misunderstand the law as to hold a municipal corporation bound to construct and maintain its sidewalks in such condition as to insure the persons using them from accident. We do not understand or hold this to be the duty imposed upon appellant by the law. It is bound only to use reasonable care and diligence to keep its sidewalk in reasonably safe condition for the use of persons traveling thereon and our Supreme Court have held, in Chicago v. Keefe, supra, a child may be lawfully upon the sidewalk for pleasure—that is, for play—and the city owes the same duty to have the sidewalk in a reasonably safe state of repair in respect to it that it does in respect of those who are on the sidewalk passing to or returning from their places of business or abode. And while it is not the duty of the municipal corporation, in all cases where it raises its sidewalk above the adjacent ground, to guard each side with railing or other barriers to prevent pedestrians from accidentally falling off, and the omission to provide such protection is not always negligence per se creating liability, yet in cases analogous to the case at bar, where it is apparent that such protection is required to render the sidewalk reasonably safe for school children daily using the same, and to prevent the occurrence of an accident which is likely some time to happen if such protection is not furnished, it has been held to be gross negligence on the ¡Dart of the corporation to omit the duty to erect railings or other guards on the sides of the walk, adequate for the protection from the danger of falling therefrom, of persons traveling thereon and exercising ordinary care and caution. Joliet v. Verley, 35 Ill. 58; Chicago v. Gallagher, 44 Ill. 295; Springfield v. Le Claire, 49 Ill. 476; Sterling v. Thomas, 60 Ill. 264; Galesburg v. Higley, 61 Ill. 287; Chicago v. Langlass, 66 Ill. 361; City of Monmouth v. Sullivan, 8 Ill. App. 55. On behalf of appellant, it is claimed the trial court erred in refusing to admit evidence offered on its behalf, thereby depriving it of the benefit of certain material facts necessary for the jury to know in order to fairly determine the question of appellant’s negligence. We find, upon a careful examination of the record, no error in this regard. It is further insisted the evidence does not establish the fact that the injury complained of was caused by a fall, but that bone erysipelas or scrofula brought about the injured, inflamed and diseased condition of the foot and ankle whereby appellee was disabled. On "this point two physicians who had examined the injury testified concerning it; one thought it was “ a scrofulous contusion; ” the other was quite as positive appellee exhibited no symptoms of erysipelas or scrofula, and that the injury was a contused wound, such as might be the result of a fall. The other testimony relied on to sustain this theory of appellant consisted of statements of appellee, his father and stepmother, touching the cause and character of the injury, as testified to by several witnesses. Appellee, his father and stepmother, denied having made some of these statements and explained others, but, as against the inference to be drawn from this testimony, a number of disinterested witnesses, as also appellee, his stepmother and father, testified that up to the time appellee claimed to have been pushed off the sidewalk he had not been injured in his foot or ankle, or complained of any injury to it, or of being lame. It was the province of the jury to determine from all the evidence the cause of the injury ? and in ascribing it to a fall they were sustained by the evidence. It is also insisted, inasmuch as no one but appellee testified to the fact that he was pushed off the sidewalk, and in this is not corroborated by the testimony of the two boys who were there at the time, one of whom, he says, was pushed against him, therefore the material fact that he was pushed off and fell from the sidewalk is not proven by a preponderance of the evidence. These witnesses were examined in the presence of the court and jury; their- manner of testifying, their conduct and demeanor while on the witness stand, was doubtless taken into consideration by the jury in determining the weight and credit to be given to the testimony of each witness; and upon examining the testimony of the two hoys we find it quite unsatisfactory; neither of them seems to have had a good memory, or to be able to recollect very distinctly any material fact; and we can not say the jury were not warranted in accepting and believing appellee’s version of the accident, and finding that he fell and was injured without fault or negligence on his part; that his injury was the combined result of an accident and the unsafe condition of appellant’s sidewalk caused by its negligence, and that the injury and consequent damage to appellee would not have been sustained but for the want of railing or other guards which, in the exercise of ordinary care and prudence, appellant ought to have provided for the protection and security of those using its sidewalk at the place of the accident In a case where it appears the injury is the combined result of accident and a defective or unsafe condition of the sidewalk, and the injury would not have been sustained but for the defect or unsafe condition, although the primary cause he a pure accident, yet, if the plaintiff is not guilty of fault or negligence, the corporation is liable and he can recover for the injury. Kelsey v. Glover, 15 Vermont, 708; Palmer v. Andover, 2 Cush. 600; Joliet v. Verlev, supra; City of Lacon v. Page, 48 Ill. 499; Bloomington v. Bay, 4, supra. Applying the law to the facts as they appear in the record and as the jury evidently found them to be, plaintiff has established bis right to recover the judgment appealed from. We perceive no error in the refusal of the court to give the 2d and 8th instructions on behalf of appellant, or in modifying its 6th, 7th and 9th instructions before giving them to the jury, but are of opinion the jury were fully and fairly instructed as to the law. We find no reason to disturb the verdict of the jury, or for reversing the judgment, and affirm the same. Judgme?it affirmed.