City of Streator v. Chrisman

Me. Justice Higbee delivered the opinion of the court. Appellee, while walking along a street of the city of Streator toward her home, about ten o’clock at night on August 7,1897, was tripped by a loose board in a sidewalk which was stepped upon by a companion with whom she was walking, and thrown down, receiving injuries to her back, shoulder and hand, for which she sued the city and recovered a verdict for $1,000. A judgment was entered by the court for that amouut and the city appealed therefrom to this court. It was- shown by the evidence, and is not questioned, that the boards in the sidewalk were loose at the time and place in question, and that appellee, by reason of such defect in the walk, received a fall and suffered certain injuries. It was contended, however, that the defect had not existed for such a length of time, nor was it of such a nature as to . charge notice thereof upon the city, and most of the evidence in the case was introduced upon that question. Four witnesses, including appellee, swore positively that they passed over the walk frequently and that the boards were loose for from two to four weeks prior to the accident; on the other hand some eight witnesses introduced on the part of appellant testified that they had used the walk often during said time and never noticed any loose boards, and one other witness for appellant said he noticed the loose boards on the day of the accident but not before. None of them, however, would swear positively there were no loose boards before that time, though the section foreman -yvho had charge of the railroad crossing at the place -where the accident occurred, testified that he examined the walk in question a week before the accident and could then discover no loose boards. While the evidence is not conclusive, we think it sufficient to justify the jury in finding that the defect had existed for a sufficient length of time and was of such a nature that the city could, in the exercise of reasonable diligence, have ascertained the existence of the defect and repaired it. It is contended that appellee knew of the defect in the walk and was therefore guilty of contributory negligence in going upon it. Although a person passing along a sidewalk may know it is out of repair, he may, notwithstanding such knowledge, recover for a personal injury occasioned by the defective walk, if he uses ordinary and reasonable care. City of Flora v. Naney, 136 Ill. 45. Whether due care ivas exercised in using a sidewalk knowing it to be out of repair, is a question of fact for the jury. Village of Cullom v. Justice, 161 Ill. 372. The instructions given on both sides fairly presented the laAV governing the case to the jury. We can not say that their verdict was clearly unwarranted by the evidence, and we are therefore not disposed to disturb it. We would have been better satisfied had the damages been assessed by the jury at a smaller amount, but they are not sufficiently large to warrant a reversal on that account alone, and the judgment of the court beloiv will be affirmed.