City of Mt. Vernon v. Brooks

Phillips, J. This is an action on the case brought by appellee against appellant to recover for personal injuries received while passing along a sidewalk in the city of Mt. Vernon, which is alleged to have been defective. It is alleged that on the 25th day of January A. D. 1889, a sidewalk was built over a ravine, the bottom of which was about four feet below the level of the walk, and which walk was only three feet wide, constructed of plank laid on stringers resting on the banks of the ravine, and which was" without railing along the sides of the walk at that point, and with one side sagged about six inches lower than the other, with loose and broken plank laid on the stringers, and that the walk at that point and both ivavs therefrom was unsafe and insecure by reason of holes in the walk and loose plank thereon. It is further alleged that the plaintiff, while using due care passing along said walk, stepped into a hole in the sidewalk and fell from the walk into the ravine, and received severe injuries. At the bottom of the ravine were broken brick on which he fell. This walk was on a street much used and was the direct route for appellee to pass in going to and from his residence to his place of business. The defendant pleaded the general issue and a special plea, in which it was averred that prior to plaintiff’s injury the sidewalk in Mt. Vernon had been destroyed by a cyclone and the defendant had been compelled to exhaust and expend all the revenue applicable to building and repairing sidewalks before such injury. The evidence shows the plaintiff is crippled and requires the use of crutches to enable him to move on the walks, and the only sidewalk over which he could pass from his place of business to his home was this walk; that it was out of repair with broken and loose boards and from the cause and in the manner alleged, the plaintiff fell and was injured, The sidewalk where it rested on stringers across the ravine from bank to bank was about eight or nine feet long and no railings were along the sides of the walk and none were placed there at the time of its construction. It has been held in repeated decisions of the Supreme and Appellate Courts of this State that where municipal corporations omit the duty of erecting railings or other guards on the sides of a walk adequate for the protection from danger by falling therefrom, of persons using the walk with ordinary care and caution in walking thereon, it will be sufficient to sustain a verdict for gross negligence. Joliet v. Verley, 35 Ill. 58; Chicago v. Gallagher, 44 Ill. 295; Springfield v. LeClare, 49 Ill. 476; Sterling v. Thomas, 60 Ill. 264; Galesburg v. Higley, 61 Ill. 287; Chicago v. Langlass, 66 Ill. 361; Monmouth v. Sullivan, 8 Ill. App. 55; Carterville v. Cook, 29 Ill. App. 495. The appellee, though crippled and necessarily using crutches to pass along the walk, had the same right to use it as one not in his condition. The only requirement of the law being that he should use a higher degree of care consequent on his greater liability to danger in passing thereon. The evidence authorized the jury to find that a sufficient degree of care was used by the appellee, and it was so found. The evidence shows that the sidewalks of the city had been destroyed by a cyclone previous to the time of appellee’s injury and that this walk had been destroyed .with others. But it also appears that the appellant repaired the walk at this place, and the manner of repair was such that it was left in an unsafe condition, without railing, where the walk bridged the ravine. If the city assumed to repair the walk, its duty was to so repair that it would be reasonably safe for persons to travel over the same. This it failed to do. It is insisted, however, that the city had expended all its revenue levied for the. building and repairing of sidewalks, and therefore was without money to keep the same in repair, and was discharged from its duty thereby. The testimony of the city treasurer is that there was no money in the treasury from November 20, 1888, to April, 1889. The appellee was injured on the 23d day of January, 1889, and the tax levy for 1889 had been made but was not colldcted until April, 1889. By Sec. 2, Chap. 146, Starr & C. Ill. Stats., municipal corporations may issue warrants to the extent of seventy-five per cent of levy already made in anticipation of their collection. The city, therefore, having the right to issue its warrants in anticipation of its levy then made, had means to provide for the repair of its sidewalk. There is not sufficient evidence in the record of want of funds to, repair the walks to discharge the city from its duty of keeping the same in repair. The appellant assigns as error the ruling of the court in overruling and sustaining objections to certain questions. Daniel Smith, a witness for appellee, was asked: “At that time what was the general traveled route for foot passengers down that street ?” to which appellant, by its counsel, objected, and the objection being overruled that ruling is assigned as error. It was material to show the • use of the walk as one method of determining the knowledge the officers of the city had, or by the exercise of ordinary diligence might have had, of the defects in the walk. But the question was not answered by the witness and could not have affected the verdict. Objection is, however, taken to the language of the court in passing on this objection. The ruling of the court embraced more than was included in the question, but it is apparent that the language used could not have prejudiced appellant. William Muir, a witness for appé1lee, stated he saw plaintiff fall, went to his assistance, etc. He was not asked in chief as to the condition of the walk. On cross-examination he stated he was in the habit of crossing that walk, and was by appellant’s counsel then asked : “Do you know whether there were any broken planks at that time ? ” to which appellee, by his counsel, objected, and the objection being sustained appellant excepted. The witness was not asked in chief as to the condition of the sidewalk and the Question was not therefore proper as a cross-examination. Appellant offered as a witness one Thomas Jones, who stated he had repaired the walk about the time of the injury, and was asked : “ What condition did you find it in at that time ? ” which question was objected to and the objection sustained and appellant excepted. ¿The witness, pn further examination in chief, stated the time he was at the walk to repair it and the condition in which he found it at that time; appellant had the full benefit of the evidence sought by the question to which the objection was sustained. The witness was then asked in chief, “ State whether in your judgment that walk was in a condition for people with ordinary legs to walk over?” to which an objection of appellee was sustained and appellant excepted. It is for the witness to give facts to the jury, and whether the walk was reasonably safe for persons to pass along is a question for the jury to determine from the evidence. This question asks for the opinion of the witness as to the safety of the walk, and the objection was properly sustained. The appellant asked the court to give the following instructions among others: “ And you arc further instructed for the defendant, that you can not justly visit the misfortunes of the plaintiff upon the defendant, and if you believe from a preponderance of the evidence that the plaintiff was a cripple and used crutches to aid him in passing along the sidewalk, and that from this fact resulted the injury, or that this materially contributed to producing the injury,then the plaintiff can not recover.” “ You are further instructed for the defendant if, from a careful consideration of all the evidence given to you upon the trial of this cause, you believe that the cause of the injury complained of can as well be attributed to the want of due care on the part of the plaintiff, or to the fact of his being in a crippled condition and using crutches to assist him in walking, as to any negligence on the part of the servants of the defendant, or if the carelessness of the plaintiff or his crippled condition materially contributed to or was nearly equal to the negligence of the servants of the defendant in causing the injury complained of, then the defendant can not recover,” which were refused by the court, and which refusal is assigned as error. The first instruction above ignores the question as to whether the sidewalk was reasonably safe for persons to pass along the same, and if unsafe for persons having the use of their limbs, the fact that appellee was a cripple would not defeat his right of recovery if he used care proportionate to his condition; however that may be the court gave to the jury the following instruction: “ The court instructs the jury that it is not the duty of the city in the construction and repair of its sidewalks to provide against injury to a person in a crippled condition any further than for persons having the ordinary use of their physical powers; all it is required to do is to use ordinary care to keep the walks in a reasonably safe condition for persons using ordinary care, and with the ordinary capacity to care for themselves, and in that case if you believe from the evidence that plaintiff is a cripple and walks with crutches and is thereby less able to care for and protect himself than persons having the ordinary use of their physical power, he would be required to take such additional care and precaution as his condition reasonably requires,” which correctly stated the law to the jury, and it was not error to refuse appellant’s instructions. The judgment must be affirmed. Judgment affirmed.