City of Aurora v. Colshire

Biddle, J. Suit by appellee, against the city of Aurora. The complaint charges that the city raised the grade of George street above its natural surface ten feet, and knowingly and negligently left the west side of the fill perpendicular against a wall, without railing or guards, causing thereby a dangerous pitfall; and that the appellee, in pursuit of his lawful business, not knowing any thing aTiout said elevation and pit, in passing along said street in the night-time, without any fault or negligence on his part, fell from and over said elevation, and broke his arm, and otherwise injured his body, to his damage. Wherefore, etc. Answer: 1st. Special paragraph; and, 2d. General denial. The special paragraph was rejected on motion, and exceptions taken. The case was then tried by a jury, on the complaint and general denial. General verdict for the plaintiff, for five hundred dollars, and answers to two special interrogatories, finding that the appellee did not know of the dangerous condition of the street when he fell, and that he undertook to pass the wall in the night-time, when it was very dark, at the time he received the injury. After the usual motions and exceptions, necessary for the appellant to bring the case here, this appeal is taken, and alleged errors assigned. First. The appellant complains of the rejection, on motion, of the special paragraph of answer. There is no error in this ruling. The paragraph was [486] nothing more than an argumentative denial of a part of what was wholly denied by the general denial. Second. It is urged that the evidence is insufficient to sustain the verdict and findings,—and particularly that it shows contributory negligence on the part of the appellee. "We have weighed the evidence with care, and can not say that it is insufficient. There is some slight evidence, tending to show that the appellee had known something of the wall and fill, some years before he was injured, but the jury have found, that, at the time of the injury, he did not know of their existence,—and we can not say that such finding is without evidence to support it. Third. The appellant thinks that the court gave certain instructions to the jury which were improper, and refused certain instructions which should have been given. We have examined them with attention, and with the evidence before us, we think no available error has inter-r vened, either in giving or refusing instructions. The judgment is affirmed, with costs.