Pfeifer v. Town of Lake

Moran, P. J. This action was brought to recover for injuries sustained by appellant, by falling upon the sidewalk in the night time. The evidence tended to show that on the night of March 10, 1887, the plaintiff was walking with her husband south on Stewart avenue, in the town of Lake. It was dark, and she could not see, and in going along she suddenly fell down a step, which was in the sidewalk at that point, and was injured. The step was a descent of some twelve inches from the sidewalk, along which she had approached, to a continuation thereof on a lower grade, and the walk had been built in that manner some six months before. A gas lamp, which stood near by this point where the step was, had not been lighted on the evening of the accident, and the light from more distant lamps was obstructed by heavy trees on both sides of the walk, so that the point where this descent was, was in darkness, and one walking along there could not see that there was a change in the grade of the walk. The court, at the conclusion of the plaintiff’s evidence, instructed the jury to find for the defendant. We think there was a question for the jury on this state of facts. It can not be said as a matter of law that such construction of the sidewalk, and leaving it unlit at night, is not negligence. The question of whether there was negligence in so constructing the walk was one of fact. The town authorities were responsible for the proper construction of this sidewalk. It is their duty to see that such structures are properly made and reasonably safe. Alexander v. Mount Sterling, 71 Ill. 366; Dillon Mun. Cor., Sec. 1003, and cases cited. The case should have been left to the jury, so that they might determine from all the evidence whether the sidewalk was in proper condition, or defectively constructed, and whether the injury to plaintiff was due to such defect, if any, or to her own negligence or want of care. Clemence v. City of Auburn, 66 N. Y. 334; City of Chicago v. Gallagher, 44 Ill. 295; City of Chicago v. Langloss, 66 Ill. 366. Negligence, whether of plaintiff or defendant, is a question of fact for the jury on all the evidence. Fisher v. Cook, 23 Ill. App. 621; Wight Fire Proofing Co. v. Poczekai, 30 Ill. App. 266; Same case, 130 Ill. 139. For the error in taking the case from the1 jury, the judgment must be reversed and the case remanded. Reversed and remanded.