City of Chicago v. Johnson , 53 Ill. 91 ( 1869 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

There is no dispute about the facts of this case. By the charter of the city of Chicago, which is a law of this State, the control of the public streets is given to the city, and the Board of Public Works of the city is required to take special charge and superintendence over them, and the common council are authorized to cause the streets to be filled, graded and paved, and to keep them in repair.

It is not denied that Milwaukee Avenue is a public street of the city of Chicago, and the evidence shows that it was being paved with Hicliolson pavement, at the time the accident to appellee occurred. The appellant insists, as there was no proof this work was ordered by the common council, or other proper authority of the city, therefore, the verdict was wrong.

A sufficient reply to this is, that it is a reasonable presumption, when such work is being done within the limits of a city, that it is done by the proper authority of the city.

It seems, to carry on this work, an excavation several feet deep was made on the east' side of the street, to receive a curb wall, into which, of a dark night, the plaintiff’s horse fell, and he precipitated from the wagon, to his serious injury.

There was no proof this ditch was made by the city authorities. As this was an adjunct to the paving, the same presumption must obtain, that it also was made by the same authority directing the paving.

It is further objected by appellant, that the court instructed the jury that the title and possession of the public streets were in the city, whereas, in truth and in fact, the fee of such streets only as had been specially dedicated, was in the city.

This may be so, still it does not affect the instruction given. That nowhere asserts the fee of this street was in the city. The title may be only a possessory title, and the instruction embraces such a title, and the proof established it.

It is also complained by appellant, that it was not alleged the city authorities had notice of this excavation. Ho notice was necessary to them, as they caused the ditch to be made.

This case is substantially the same in its leading facts, as that of The City of Springfield v. LeClaire, 49 Ill. 476. In that case, it was held the city was under a duty, on excavating for a sewer, to place proper barricades about it, to prevent injury to passers by, and that failing so to do, and injury resulted to one in the exercise of due care on his part, the city was liable.

We perceive no real difference between that case and this, and accordingly affirm the judgment.

Judgment affirmed.