City of Bloomington v. Chamberlain , 1882 Ill. LEXIS 295 ( 1882 )

Mr. Justice Sheldon

delivered the opinion of the Court:

The errors assigned are in the refusal of instructions and the admission of evidence. One of the refused instructions asked by defendant was, that if plaintiff knew of the defective condition of the sidewalk, it was her duty to exercise a high degree of care while passing over it. The degree of care which the law required the plaintiff to exercise, was ordinary care, under all the circumstances of the ease. The plaintiff’s knowledge as to the condition of the sidewalk, would be one of such circumstances to be considered by the jury in determining whether there had been the exercise of ordinary care. The court did instruct the jury that the law required plaintiff to show that at the time she sustained the injury complained of she was exercising ordinary care and caution, and that if, by the exercise of such care and caution, she w7ould have avoided the danger, they should find for the defendant. We think the instruction given stated the law upon the subject sufficiently favorable for the defendant, and that, there is no just ground of complaint in not giving the further instruction which was refused.

The tenth refused instruction told the jury, in substance, that the law required the plaintiff to go out into the street and pass around the walk, if she knew it was defective; and the eleventh, that if plaintiff could have gone out into the street and around the defective sidewalk, and if her failure to do so showed a want of ordinary care on her part, the jury should find for the defendant. Clearly, the tenth one could not be laid down as a legal proposition. (See City of Aurora v. Hillman, 90 Ill. 61.) All the law that there was embraced in the eleventh refused instruction was, that a want of ordinary care on plaintiff’s part would preclude her from recovering, and the jury were so informed in an instruction which was given, as already stated. There could be no error in not repeating the instruction. The present case is quite unlike that of City of Centralia v. Krouse, 64 Ill. 19, where the sidewalk was in a palpably dangerous condition. The defect here ivas, that there were loose boards in the wralk, and plaintiff was injured by the turning up of a loose board, which caused her to fall.

On the trial, against the objection of the defendant, the court permitted the plaintiff to testify that she had taught school at §50 per month; also, that at the time of receiving the injury complained of, she and another lady were making arrangements to teach a select school, but on account of the injury she was compelled to give it up. The admission of this evidence is complained of as error, as being evidence of special damages, which should not have been received under the general averment in the declaration. The witness stated, without objection, that she had followed the business of teaching school, and that she did not suppose that she could prosecute that business. The allegation in the declaration as to special damages in the above respect is, in the first count, that plaintiff was hindered from transacting her business and affairs, and deprived of large gains and profits which she otherwise would have earned; and in the second count, that the injuries received had a permanent effect upon her personal hodily strength and ability to make a living, and that -she had been rendered unable to earn or make ■ for herself a living, and had been deprived of large gains and profits which she otherwise would have earned. We think it was admissible, under these averments in the declaration, to show what was the business of the plaintiff, and that she had been disabled from, pursuing it by reason of her injuries. The testimony objected to tended to no more than this, and to give the jury some idea of the wages of school teaching. Any objection there might be in this last respect from the witness' stating 'what she had received, instead of what was the usual compensation for school teaching, was, we think, sufficiently removed by the observation of plaintiff’s counsel, when, upon defendant’s counsel making objection to the introduction into the record of plaintiff’s statement of the amount she received, plaintiff’s counsel said: “If he objects, strike it out.” The testimony was not as to the loss of the profits of a particular engagement for school teaching, but only that arrangements which were being made to teach a school were compelled to be given up, without any intimation as to the amount of the compensation under the arrangement, had it been perfected. The evidence went to show no more than an actual interruption of the business of school teaching. Had it gone to show the loss of the profits of a particular engagement which had been made for teaching school,' another question would have been presented,— the one appearing in City of Chicago v. O’Brennan, 65 Ill. 160, a case much relied upon by appellant’s counsel, where, in a similar action for injuries sustained, it was held error in the' court below to permit the plaintiff to give in evidence the fact of particular engagements by him to lecture, and the probable gains thereof, and that the plaintiff was prevented from fulfilling them by reason of the injury, and his estimates of the special loss thereby sustained. It was held that these special damages should have been set out in the declaration. The essential difference between that case and the present is obvious.

The cases of Tomlinson v. Derby, 43 Conn. 562, and Taylor v. Monroe, id. 43, seem opposed to the view we take, but we find it supported by the case of Luck v. City of Ripon, 52 Wis. 196. We prefer to follow the authority of the latter case. The judgment must he affirmed.

Judgment affirmed.