O'Donnell v. Riter-Conley Manufacturing Co.

Mr. Presiding Justice Smith delivered the opinion of the court. There is no material controversy in the evidence. At the close of the evidence in the case the court instructed the jury to find the defendants not guilty. The only question in the case is, did the court err in giving the peremptoiy instruction. The theory of the declaration is that the ordinance made it the duty of appellees, the one as owner, and the other as general contractor, to lay the floors contemplated "by the ordinance for the protection of persons engaged in the construction of the building. The ordinance of the city is attacked by counsel for appellees as void for want of power in the city to enact it, and upon the ground that it places unreasonable, unnecessary and unwarranted limitations upon owners of properly. That the ordinance in question is a valid exercise of the police power vested in the city, we entertain no doubt. It has for its object the prevention of a manifest evil and the safety of all persons employed in the erection of buildings. It is therefore a proper exercise of the police power. Noel v. The People, 187 Ill., 587; Dunne v. The People, 94 Ill., 120; Ruhstrat v. The People, 185 Ill., 133; Smith v. Milwaukee B. & T. Exchange, 91 Wis., 360. The ordinance is within the power of the common council to pass, and it is reasonable. It- is therefore law to all intents and purposes within the corporate limits of the city. Smith v. Milwaukee B. & T. Exchange, supra; Mason v. Shawneetown, 77 Ill., 533. The evidence in the record tended to prove a violation of the ordinance in that there was a failure “to put in and lay upon the upper side of the joists or girders of each story * * * a good and substantial temporary or permanent floor.” The failure to perform .this duty must be held negligence. 2 Thomp. Neg. 1232; Mueller v. Milwaukee St. R. Co., 86 Wis., 340; Karle v. K. C., St. J. & C. B. R. Co., 55 Mo., 476; The True & True Co. v. Woda, Admx., 201 Ill., 315; H. Channon Co. v. Hahn, 189 Ill., 28. The Illinois cases supra hold that proof of violation of a city ordinance and personal injury directly resulting therefrom makes a prima facie case of negligence. If by reason of such negligence damage or injury directly results to any one for whose benefit the ordinance was passed and who is not guilty of contributory negligence, a civil action for damages may be maintained. Bott v. Pratt, 33 Minn., 323; McCall v. Chamberlain, 13 Wis., 713; Smith v. Milwaukee B. & T. Exchange, supra. The evidence then tended to prove negligence. Plaintiff’s intestate was killed. It was a question for the jury whether or not the injury directly resulted from the negligence of the defendants or either of them. It was also a question for the jury whether or not plaintiff’s intestate was guilty of contributory negligence. The evidence tending as it did to show a violation of a valid municipal ordinance thus affording a sufficient basis for an inference by the jury of negligence, it was manifestly erroneous for the court to instruct the jury to find the defendants not guilty. For the error indicated the judgment of the Circuit Court is reversed and the cause remanded. Reversed cmd remanded.