Powers v. City of Chicago , 20 Ill. App. 178 ( 1886 )

McAllister, J.

The motion to exclude the plaintiff’s evidence from the jury when he rested his case, was in the nature of and to be regarded as of the same effect as a demurrer to the evidence. Phillips v. Dickerson, 85 Ill. 15.

The defendant thereby admitted all that the evidence tended to prove, and every legitimate inference which could be drawn from it. 85 Ill., supra.

The evidence preserved by the bill of exceptions, and which the court excluded by such motion, fairly tended to prove that the street and sidewalk, at the place in question, was in a bad and dangerous condition, not as a result of prevailing storms, but by reason of the flowing of ' water from- a fire plug of the city, which could have been prevented by the exercise of reasonable care and diligence on the part of the municipal authorities, or as the result of acts of positive misfeasance by defendant’s agents and servants. In such case, the defendant, if it had notice of the flowing of water and the obstructions, and neglected to abate the nuisance within a reasonable time, or the nuisance was caused by acts of misfeasance of its agents or servants acting within the scope of their authority, would be liable, upon well settled principles of law, to the plaintiff, if injured while in the exercise of ordinary care and as a proximate consequence of such obstructions. Cooley on Torts, 625, and cases in notes.

One of the grounds assigned by the court for granting the motion to exclude all of plaintiff’s evidence, was that the obstructions had not existed a sufficient time to imply notice to the defendant.

As regards such question, every case must depend upon its own circumstances. In City of Chicago v. Fowler, 60 Ill. 322, the obstruction had existed but little longer than in this case, and the court, regarding the special circumstances, held it was a question for the jury, and their finding that there was notice, was conclusive. In the case at bar, the evidence tended to show that an agent of the city visited this fire plug every day during the cold weather, such as there was at the time in question. That was evidence to go to the jury upon the question of notice. Besides, the plaintiff endeavored to prove by the city engineer having the matter in charge, knowledge on his part, as chief of a department, as to what had been ordered and done with reference to the particular fire plug in question. To that end three successive preliminary questions were asked and each ruled out, so that plaintiff could get no starting point as to an inquiry which was material, legitimate, and which he had an undoubted right to make for the purpose of showing notice to defendant. Where the court thus rules out successive preliminary questions, and prevents a party from gaining an entrance upon a legitimate inquiry, it is denying to such party a substantial right, and is prejudicial error. Walker v. Chicago, 58 Ill. 280 ; Mably v. Irwin, 16 Bradwell, 362.

The evidence preserved in the record tended to prove the exercise of ordinary care on the part of the plaintiff, so that the question should have been submitted to the jury, and the court was not justified in excluding the whole evidence and thus withdrawing the case from the jury on the ground of contributory negligence on the part of plaintiff. It was not negligence per se for him to attempt, with due care, to go to his house over the icy way, there being no other way of getting to his house at that time which was reasonably available. Evans v. City of Utica, 69 N. Y. 166; Congdon v. The City of Norwich, 37 Conn. 414; Thompson on Negligence, 785-6.

It seems to us that there was evidence tending, in a substantial degree, to prove every element necessary to a cause of action. However that may be, the rulings of the court upon the several questions asked by plaintiff’s counsel were erroneous. We think the plaintiff did not have a fair trial, and that a new trial should be granted.

The counsel for the city take the position that the plaintiff is remediless on this appeal, because the bill of exceptions does not expressly purport to contain all the evidence. Whether it did so purport or not, is wholly immaterial as regards the question of the improper exclusion of evidence. But it does purport to contain all the evidence reached by the motion to exclude, which is to be treated as a demurrer to evidence, and tested by the same rales. The judgment below will he reversed and the cause remanded for a new trial.

Judgment reversed.