Town of Wheaton v. Hadley , 1888 Ill. App. LEXIS 336 ( 1889 )

Lacey, P. J.

This was an action on the case to recover damages for injuries resulting from falling on a sidewalk of appellant, a municipal corp>oration, on Cross street, in said town, between Seminary and Wesley streets, because of the defective condition of the sidewalk. In not keeping it in safe condition, the appellant is charged with negligence. The accident took place on the 26th day of April, A. D. 1886. The ad damnum in the declaration was in the sum of $5,000, and the recovery $1,000.

On the day of the injury the appellee, in company with Miss Vauglm, was walking along Cross street, going south, Miss Vaughn being on the inside of the walk and the appellee being on the outside. When about sixty feet south of the Adams barn, Miss Vauglm stepped on a loose plank, which flew up and caught the appellee’s feet and threw her violently on her face and hands, dislocating the ulna of the left arm at the joint where it joins the wrist, and inflicting a severe shock to her nervous system, which, it is claimed the proofs show, produced epilepsy and atrophic ulcers, as is claimed by appellee, but denied by the appellant. The appellant claims that the sidewalk was in good repair at the time of the accident, and, if out of repair, it had not been so out of repair a sufficient length of time to charge the town with constructive notice of its defective condition—hence there should be no recovery. Further, appellant claims that the damages are excessive, and that the court gave erroneous instructions on the part of appellee and'refused proper ones asked by it.

We will first notice the claim that the sidewalk was in good repair.

The sidewalk, it appears, was very old, not having been • replaced for fifteen years, and was badly decayed and in a very-dilapidated condition, which the authorities well understood or should have known. The stringers were so decayed that they would scarcely hold a nail, and had sunk into the ground so that the sidewalk rested on the ground. The boards of the sidewalk were also decayed, and many of them loose.

It is true the evidence shows that a short time before the accident the authorities made an attempt to repair it by nailing down some of the boards, not, however, putting in any new stringers, but it is evident from the testimony that it could not, without new material and almost an entire replacement of the sidewalk, be repaired so as to place it in a good, safe condition. It seems to us that the evidence was ample from which the jury might find both that the sidewalk was badly out of repair at the time of the accident, and that the town had notice of it. They were further justified in finding that appellee was in the exercise of care and caution to prevent injury at the time she received the fall.

Where a sidewalk has stood as long as this one and become rotten from exposure to the weather and time, the authorities ought to be held to have constructive notice of its condition, for with reasonable care such condition could be easily ascertained.

As to the point that the damages are excessive, we can only say that such matters are wholly within the discretion of the jury, only subject to be reviewed and the verdict set aside when they are so excessive as to convince the court that the jury were actuated by prejudice or other improper motive, or that there is a manifest want of evidence to support the verdict. In this case it appears that the injury was serious even without the alleged resulting consequences of epilepsy and atrophic ulcers. As to this last and subsequent condition, we think the jury might reasonably find that it was traceable to the injury resulting from the fall. The jury were the judges of the evidence in this particular. The jury, as we think, were justified in the verdict as respects the damages. We think the appellee’s instructions were not erroneous, or either of them; nor did the court err in refusing the respective instructions offered by appellant. The jury were very fairly and fully instructed, and no reasonable objection can be made to the action of the court in this particular.

There seems to have been a fair trial. The judgment is affirmed.

Judgment affirmed.

Judge Upton, having tried the case in the court below, took no part in the hearing here.