Lau v. City of Chicago

Mr. Presiding Justice Chytraus delivered the opinion of the court. The undry concrete sidewalk at the time and place in question was certainly not reasonably safe for public travel. The jury were clearly justified in finding and returning a verdict, in effect, that permitting persons to use the sidewalk, at the time and place in question, for public travel, was a lack of exercise of ordinary care on the part of whoever was charged with the duty to then and there exercise such care in order to prevent injury to persons rightfully using the sidewalk. We regard the city of Chicago as liable, and, in view of the grounds and principles upon which we hold the city to be liable, it is of no consequence that there was such a short period of time—less than two hours —before plaintiff was injured, during which the unsafe sidewalk remained in the nnbarricaded condition. There is no place here for the application of the doctrine of constructive notice. The city authorized and knew of the work which was going on in connection with the sidewalk at the time and place in question and, because of such authorization and in view of the city’s obligation to the public relative to streets and sidewalks, the law places upon the city the responsibility for the condition of the sidewalk which existed at the time when the plaintiff was injured. The question is one of obligation, regardless of notice; there was no occasion for the plaintiff to establish constructive notice. It is a general rule of law that one under the duty and obligation to use ordinary care in a particular connection must use such care as will be commensurate with the requirements of the conditions and circumstances and with the character of the risks and dangers reasonably to be apprehended and guarded against. Where risk or danger of injury to any one is not to be anticipated, a less degree of care is sufficient to be regarded as ordinary care than where some particular risk or danger is to be anticipated. When the city, charged with the care and control of the streets and sidewalks, on May 9, 1907, authorized the building of this concrete sidewalk in front of 33 Elston avenue, the city authorized the creation of a condition of special risk and danger at the time and place in question, to such of the public as might rightfully have occasion to then use that sidewalk. The authorization of the creation of the special risk and danger was followed by a duty to exert such correspondingly greater activity, in the exercise of care in the protection of the public concerned, as would protect those in the exercise of ordinary care from injury by reason of the increased danger. “One who authorizes a work which is necessarily dangerous, and the natural consequence of which is an injury to the person or property of another, is justly to be regarded as the author of the resulting injury.” Village of Jefferson v. Chapman, 127 Ill. 438, 444, approved in Economic Fuel Gras Co. v. Myers, 168 Ill. 139, 146. This rule is applicable with double force where, as here, a city primarily chargeable with a duty imposed by law, in respect to keeping streets and sidewalks safe for public travel, authorizes the doing of work in connection with those streets and sidewalks which is Accompanied with atténdant special risk or danger. In Schmidt v. Chicago, 107 Ill. App. 64, 68, it was contended that a death resulted from the city’s negligence in permitting an improperly insulated arc light lamp to' hang too low down, close to the sidewalk. The city argued that there was no claim either that the city owned or operated the light or that it was the city’s duty to inspect the insulation of the arc lights used in the city. To this argument the court replied: "We think, however, the light being shown to be upon a public street of the city, the city is responsible for its presence there, and was bound to use care commensurate with its dangerous character to protect people passing on the streets.” Had the city itself been building the sidewalk here in question, it would have been in duty bound to take the requisite precautions to prevent the injury which occurred, and, had it failed, it would have been compelled to respond in damages. The duty to exercise ordinary caré to maintain the streets and sidewalks in a reasonably safe condition for public travel rests primarily, as respects the public, upon the city, and this obligation, primarily to discharge this duty, cannot be evaded, suspended or cast upon others by anything the city may do. Village of Jefferson v. Chapman, 127 Ill. 438, 445; Hogan v. Chicago, 168 Ill. 551, 559. The city being under the primary obligation, imposed by law, to exercise ordinary care to keep the streets and sidewalks of the city in a reasonably safe condition, where an injury has occurred, which is attributable to the fact that a street or sidewalk was not in a reasonably safe condition, the city presents no defense by showing that the injury occurred on account of negligence in connection with work being done upon a street or sidewalk by an independent contractor or by reason of some condition created in a street or sidewalk by an independent contractor. Such is the doctrine of the cases above cited. The city is liable in such case, although it may have contracted away control and supervision of the work being done and may have no immediate control over the workmen. Village of Jefferson v. Chapman, ib.; Hogan v. Chicago, ib; Where the city authorizes and permits work upon or interference with a street or sidewalk by an abutting owner, its duty, obligation and liability are no less than when such work and interference are by an independent contractor. There is no reason for making a distinction. An owner of private land may at will surrender possession and control of his land and thereby relieve himself of responsibility for what may occur thereupon as the result of negligence óf the party in possession; but municipal corporations are charged with such obligations and responsibilities in connection with their streets and sidewalks and public places that they may not by surrender of possession and control likewise at will relieve themselves from responsibility. On the question of the warning of the plaintiff by one of the workmen the jury found against defendant. There is no such preponderance of evidence showing that the warning reached plaintiff as to justify us in holding that the jury was wrong. The jury also found against defendant on its contention that the surrounding appearances and conditions were such as to warn plaintiff of the danger whereby she suffered injury. We cannot say that plaintiff, her situation in life being considered, understood or realized, or that an ordinarily prudent person, under the circumstances, should have understood that there was any danger of the sidewalk caving in. To her it may have appeared perfectly safe to walk upon. We think the jury was justified in finding her not guilty of contributory negligence. When a municipal corporation does work, or causes work to be done by an independent contractor, or authorizes work by an abutting owner or by some one else in a street or sidewalk under its control, it is bound to know continuously what is being done, the character of the work and the conditions as-they change and exist from time to time; in short, whether there is any danger which may cause injury to the public. We see no reason for disturbing the judgment. Affirmed.