City of Murphysboro v. O'Riley

Reeves, J. Appellee sustained an injury upon a sidewalk of appellant, on account of which she recovered a judgment in the Circuit Court for $250. Appellant seeks a reversal of the judgment, first, because the trial court refused two instructions asked by it. They were: “1st. In order to make the city liable for injuries caused by defective sidewalks it devolves upon the plaintiff to prove by a preponderance of the evidence that the city not only had notice of the defect, but the plaintiff must further show that the city had notice of the dangerous character of the defect, and that the plaintiff used ordinary care.” “ 2d. The fact that plaintiff was injured by falling on the sidewalk is not conclusive evidence that the city is liable for such injury, but before she can recover it must appear from the preponderance of the evidence that she was herself using reasonable care and precaution for her own safety, and that the city failed to use ordinary care; and if it is shown from the evidence that the sidewalk was defective it must further appear that the city had notice of such defect in time to repair the same.” The objection to these instructions is that, as framed, they might lead the jury to believe that actual notice of the defect in the sidewalk to the city must be shown. The first instruction would imply that the city was entitled not only to notice that the defect existed, but that it was dangerous. We take it that when the city had notice, either actual or constructive, of the existence of the defect, it became the duty of the city to look after it, and proof upon the trial that it was a dangerous or unsafe walk was sufficient, without proof of notice to the city before the injury, that the defect was such a one as rendered the walk unsafe. It is the duty of the city to see that its sidewalks are kept in a reasonable state of repair as to safety for persons using the same, and notice, either actual or constructive, of a defect in a sidewalk, is sufficient to put the city authorities upon inquiry as to whether the walk is reasonably safe for use or not. Again, it is insisted that the evidence does not show that the appellant had either actual or constructive notice of the defect in the sidewalk which caused appellee’s injury. The street upon which the sidewalk was laid is the most public street in the city, leading from the public square to three depots, and was used as much as any walk in the eity, one witness says used more than any other except the one on the public square. The walk was comparatively a new walk. The hole in the walk where appellee was hurt was caused by one of the planks breaking down and was about six inches deep and the width of the plank eight inches. Appellee was injured on Saturday night. One witness swears that he saw the hole in the walk on Thursday before the accident, another three or four days before the injury. Another says that he noticed the break in the walk a week before the accident to Mrs. O’Riley. M’Ginnis testified that he stepped into the hole on Thursday morning before daylight, previous to the accident to Mrs. O’Riley. On the part of the defense it was shown by one witness that she saw a horse break the walk on Friday morning before Mrs. O’Riley’s injury and by other witnesses that they did not notice the hole in the sidewalk until Friday before the accident. If the jury believed the witnesses who testified to seeing the hole in the walk a week before the accident to Mrs. O’Riley and the witness M’Ginnis, who testified that he stepped into the hole Thursday morning before, this testimony, taken in connection with the proof that this walk was used more than an)1- other walk in the city save one on the public square, would seem sufficient to warrant the jury in finding that the defect existed a sufficient length of time before the injury to charge the city with constructive notice of the defect. The question of notice by lapse of time was fairly left to the jury and they have found in favor of appellee, and we can not say they erred in so finding. City of Chicago v. Fowler, 60 Ill. 322. The judgment of the Circuit Court is affirmed. Judgment affirmed.