Kepperly v. Ramsden , 83 Ill. 354 ( 1876 )

Mr. Justice Scott

delivered the opinion of the Court:

The damages found for plaintiff are excessive, and out of all proportion to any injury sustained. Principally, she complains her health has been impaired by “falling of the womb,” which she alleges was caused by falling into an excavation in front of defendant’s building. LTo other serious permanent injury is proven. It is a singular fact, in the original declaration, the only specific injury alleged was to plaintiff’s leg. The infirmity which now so seriously affects her, was not mentioned among the injuries sustained, nor did she or her attending physician, in their testimony on the first trial, which did not take place for months after the accident, make the slightest allusion to the fact she was suffering from any such weakness. Testimony of two witnesses, whose characters are in no way impeached, show she suffered severely from local debility long before she was injured by the fall. But as the judgment is to be reversed because of the refusal of the court to give proper instructions, we will not now discuss the merits of the case.

Before any recovery can be had, it is incumbent on plaintiff to show she had herself been in the observance of due care for her personal safety. That being the law, the court ought to have given the third instruction asked by defendant, which declares the burden of proving that fact was upon her. Other instructions given state the proposition she was bound to observe due or ordinary care, but none of them declare as the law is, the burden of proving that fact is on the plaintiff. Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 Ill. 272.

Defendant’s fourteenth refused instruction states concisely and accurately a correct principle of law, and might properly have been given. It is broader and more comprehensive than the one that was given on the same subject, but the difference in them is not so marked as to make the refusal of the former a matter of much consequence.

Of more importance to the defense was the eighth instruction in the series asked on behalf of defendant. Plaintiff had given in evidence an ordinance of the city, as we think she had a right to do, even under the general averments of the declaration, which makes it unlawful for any one to dig any excavation in the street or sidewalk without permission from the city engineer, and a failure to fence any such excavation, when made in a particular way, would subject the offender to a fine. It was, therefore, all-important the jury should know whether the mere omission itself to procure a permit to do the work rendered defendant liable to persons injured. The instraction submitted stated the law on that question correctly, as we understand it, and ought to have been given. Had defendant observed every precaution to prevent injuries to persons passing, it is apprehended the mere omission to procure a license to do the work would not subject him to an action for damages to a person who had himself been reckless. Such a rule would be unreasonable, and would award damages for injuries to a person attributable alone to his own misconduct. Oases analogous in principle have arisen under the Railroad Law, which makes it the duty of the company to ring a bell or sound a whistle for a certain distance before coming to a public crossing, but the omission of this statutory duty does not necessarily fix any liability on the offending company. Illustrative of this view of the law are the following-decisions of this court: Chicago, Rock Island, etc., Railroad Co. v. McKean, 40 Ill. 218; St. Louis, Alton and Terre Haute Railroad Co. v. Manly, 58 Ill. 300.

Although counsel disclaim having placed defendant’s liability on any such ground, the ordinance introduced was itself inculpatory evidence. The tendency was to show defendant had been guilty of an unlawful act in the omission of a duty enjoined by that ordinance, and the impression may have been made he was, for that reason alone, subject to damages, no matter how reckless the injured party may have been for her personal safety. If so, the minds of the jury should have been disabused of that impression.

', Perhaps the only effect of the modifications made by the court to defendant’s instructions, it must appear the contractor •was in the “ actual, exclusive possession ” of the premises, to exempt the owner from responsibility for the negligent acts of the contractor, was to emphasize more distinctly the fact of possession, and really did not affect the principle contained in the propositions of law submitted. As we understand the rule on this subject, the contractor must be in the possession of the premises, and have the entire and exclusive control of the work in his charge. Possession is a question of fact, to be found from the evidence. While the contractor is in possession of that part of the premises upon which the excavation is to be made, with the exclusive control of the work, it becomes an incident to his undertaking to so do the work as to be reasonably safe for passers-by, observing due care for themselves, and that duty, it is declared, includes the erection and maintenance of suitable safe-guards about all excavations, at all dangerous. Under circumstances where it becomes obligatory upon the contractor to provide safe-guards around such excavations, the owner of the premises is not responsible for his failure or neglect of duty in that regard. Hor does it change the rule, the owner may have some work to perform about the building, where it is wholly disconnected with that which causes the injury. We can add nothing on this branch of the law to what we have said in our former decisions, and for a fuller expression of our views, we make reference to a few of them: Scammon v. The City of Chicago, 25 Ill. 425; Pfau v. Williamson, 63 Ill. 20.

Hear the close of the final argument to the jury, and after the other instructions had been passed upon, defendant’s counsel asked the court to instruct against the effect of what he says was an unwarrantable attack on the character of some of the witnesses, and denunciation of defendant for calling such witnesses. The court neither marked the instruction on this subject “ refused ” or “ given,” but simply marked it “ not passed on.” Unless the alleged offensive language was embodied in the bill of exceptions, we can not know whether it would have been proper to give the instruction. But the better practice would be for the court in the first instance to restrain all unwarranted attacks on the characters of witnesses and on the motives of parties. It is obligatory on the court to mark all instructions asked either “ refused ” or “ given,” and it is believed a rule of court that would relieve the judge from that duty in his discretion, would be in contravention of the statute declaring the duty.

The judgment will be reversed, and the cause remanded.

Judgment reversed.