Chicago City Railway Co. v. Kenyon

Mr. Justice Freeman delivered the opinion of the court. It is urged in behalf of appellant that the judgment should be reversed upon the ground that the verdict is not justified by the evidence, and that it is against the manifest weight of the evidence; and also for errors alleged to have occurred in the instructions to the jury. It is urged that to entitle appellee to recover under the declaration he was bound to prove that appellant acted without authority in dumping the cinders upon the street, that the duty devolved upon appellant to see that a light was placed upon them and that its failure to do this was negligence. The contention is that it was necessary for appellee to prove affirmatively that the cinders were dumped on the street without the authority of the city. It was certainly open to appellant, if it had any such authority, to prove it as matter of defense. If we assume, as claimed by appellant, that the city under its power “to regulate the use” of streets and to “remove encroachments or obstructions upon the same” had authority to permit the use of the public street in such manner, when the material was purchased by a private contractor for his own use in constructing sidewalks for private persons upon other city streets, certainly the burden of such proof was not upon appellee. But the criminal law of this state makes it -a nuisance “to obstruct or encroach upon public highways” punishable by fine, and provides that it “shall he no defense to any proceeding under this section that the nuisance is erected or continued by virtue or permission of any law of this: State.” Sections 221-2, Criminal Code, Eev. Stat. It is well-settled law that no one has a right to do any act which renders the use of a street less secure than-it was left by the municipal authorities. If such act is committed, the person who creates or continues the' nuisance is liable to anyone who, using due care, sustains special injury therefrom, “irrespective of the-question of negligence on his part. ’ ’ Dillon on Municipal Corp., vol. 2, sec. 794; Clark v. Lake, 2 Ill. (1 Seam.) 230-231; Weick v. Lander, 75 Ill. 93-98; Perry v. P. G. L. & C. Co., 119 Ill. App. 389-392. We incline to the view suggested by appellee’s counsel that not even the city itself had the right to allow an obstruction of this character to be maintained upon its highways for the convenience of private persons in a negligent manner, as in the case at bar. See, also, West Chicago, Street Ry. Co. v. Annis, 165 Ill. 475-479; Chi. Cold S. Co. v. The People, 224 Ill. 287-291; Perry v. People’s Cas L. & C. Co., 119 Ill. App. 389-392. In. the latter case it is said that one traveling upon a frequented street has a right to act upon the presumption that'such street is reasonably safe for ordinary travel,, and' “is not bound to keep his eyes constantly upon1 the street in search of possible defects.” That there was no light to indicate the presence of the obstruction at the time of the' accident is clear from the evidence. It is true that appellee was driving; rapidly in response to an alarm of fire, and that if his' wheels had been within the line of appellant’s railway-tracks they would not have hit the obstruction. But. the fact that he was thus taking chances of hitting an obstruction of which he was unaware and had no reason to anticipate is not necessarily evidence of want of ordinary care. The undisputed evidence tends to show that the direct cause of the injury was the obstruction in the street negligently left unlighted and unguarded. Eapid driving is not per se and necessarily reckless or negligent driving constituting contributory negligence as a matter of law, and the verdict of the jury must be deemed conclusive of the question of fact. There is no evidence that appellee was driving at a rate of speed nor in a place or manner “calculated to endanger the safety of persons or property in the streets or alleys of said city” in violation of the ordinance relating to the fire department cited by appellant. Sec. 647, Art. VI, Ordinances of Chicago. He was no doubt taking ‘4 the usual risks of an employment of a dangerous character, but he did not assume the risks of the insecurity of streets resulting from the culpable negligence” of the appellant. Farley v. The Mayor, 152 N. Y. 222-227. It is urged that there was error in a certain instruc-' tion given at the instance of appellee. The contention is that 4 4 it invaded the province of the jury in that it informed them that the supposed conduct of appellant therein described constituted negligence.” We are not able to concur in this contention. If it were true that as a matter of law 44the acts of the defendant mentioned in the instruction did not necessarily constitute negligence” as in Chicago City ry. Co. v. Dinsmore, 162 Ill. 658, cited by appellant’s counsel, then the instruction would have been erroneous. But the jury were told that if they believed, from the evidence that appellant placed a pile of cinders upon the street and permitted it to remain there for several days before the accident, that it constituted a dangerous obstruction to vehicles on the street, that it was necessary to the reasonable safety of persons traveling in vehicles at night upon said street that a danger signal light should be maintained upon the pile of cinders, that none was so maintained at the time and place in question and'further believed from the evidence that as a direct result and in consequence of the pile of cinders and absence of a light thereon, the plaintiff was injured, then they should find defendant guilty, provided they further believed from the evidence that the plaintiff was exercising ordinary care for his own safety. We are of opinion that if the jury found from the evidence the facts to be as stated in the instruction, such facts did constitute negligence as a matter of law. We do not concur in appellant’s contention that there is no evidence tending to show that appellant permitted the cinders to remain on the street, nor in the further contention that there is evidence tending to show that appellee had, in fact, before the accident knowledge of the presence of the cinders there. It is urged that the damages are excessive. The verdict was $4,000, and at the instance of the trial court $1,000 was remitted. • There is evidence which we think fully justifies the judgment for $3,000. Finding no material error the judgment of the Circuit Court must be affirmed. ÍAffirmed.