City of Joliet v. Shufelt , 1891 Ill. App. LEXIS 252 ( 1891 )

Cartwright, J.

Exchange street in the city of Joliet runs west from Bluff street, which extends north and south along the base of a bluff or hill. Exchange street was laid out sixty-six feet wide, and originally extended up the hill on quite a steep grade to an intersection with Broadway, at the top of the hill, about two hundred and forty-eight feet west of Bluff street. Broadway runs north and south and extends from its intersection with Exchange in its northerly course up a hill to Oneida street. About- the year 1886, the city of Joliet cut down about two-thirds of Exchange street for the purpose of making a more level and convenient route from Bluff street west, to regions lying west of Broadway, and thereby entirely severed the former connection of most of Exchange street with Broadway and carried Broadway over the part so cut down by means of a viaduct. About one-third of Exchange street was left substantially at the original grade connecting Broadway with Bluff street as before. The roadways were of stone and were separated by a stone wall. There was a sidewalk on the north side of the upper roadway and a carriage-way next south with a cobblestone gutter next the stone wall. The carriage-way declined toward the wall, the decline from the middle being about six inches in ten feet. The stone wall was made with benches or rises going up the hill and finished with coping stones laid level. The wall was about four feet higher than the carriageway proper and from four to something over five feet higher than the, gutter. A carriage could be driven in the gutter and close to the wall. On the evening of June 2, 1889, at about ten o’clock, Mary A. Shufelt was riding in a top buggy with the top partly down, drawn by a horse procured at a livery stable by a young man who was driving and managing the horse, down the hill on Broadway from Oneida street toward the viaduct and the upper roadway on Exchange street. The horse started into a trot, and when the driver pulled the lines to check him, it was found that the bit had parted at the connection of the mouth-piece with one ring, and the bridle was pulled back off from the horse’s head upon his neck, and he was freed from any kind of restraint. The horse ran down Broadway and turned into the upper roadway on Exchange street toward the barn where he was kept. In making the turn the buggy struck the stone wall at a point where it was a little over five feet higher than the gutter and between sixteen and seventeen feet higher than the lower roadway. The driver, who was nearer the wall, was thrown over it into the lower roadway, and Miss Slmfelt was thrown upon the wall, and then fell from the-wall into the lower roadway. The seat arm to which she was clinging was broken and her hand lacerated and she sustained injuries from which she was paralyzed and became utterly helpless with no prospect of recovery. The horse continued down the hill with the buggy until it struck a telegraph pole, where the buggy was left with the right fore wheel dished and the thills and cross bar broken. Suit was instituted and there was a verdict and judgment for $5,000. The charges upon which the claim was based were, that the upper roadway was not of sufficient width; that it was out of repair and in bad and unsafe condition, and that the stone wall was of insufficient height. The errors insisted upon here are, that the court erred in admitting. evidence of appellee’s financial condition and in giving and refusing instructions, aud that the evidence did not warrant the verdict. Appellee, when testifying, was asked if she had been able to pay the doctor’s bill and she answered that she liad not. Ho objection appears in the record at that point. She was afterward again asked if she had been able to pay it, to which question objection was made. She answered the question before any ruling the same as before, and the answer was immediately stricken out by the court. The evidence, although immaterial, was already before the jury, without objection, and the court struck out the answer made probably without any wrongful intention before the court had ruled. There seems to be nothing in that claim of error. The second instruction given for appellee is the only-one of the instructions given that is objected to, and it is claimed to he erroneous in assuming that the runaway belonged to that class of accidents known as ordinary accidents.

The instruction contained all the necessary requirements of care and prudence on the part of appellee and her companion, including the requirement that the hit became loosened and the control of the horse lost without fault on the part of either of them, and referred the jury to the evidence on «those questions, hut it is insisted that the jury should have been required to decide from the evidence whether the runaway was an ordinary accident. Horses are in general and constant use with bridles and bits as a means of restraint. The loosening or breaking of a bit or bridle is referable to causes in general existence and operation, and the conduct of horses in general when freed from restraint is- matter of ordinary observation.

The running away of horses attached to vehicles is so clearly a common and ordinary accident that the nature of this runaway as belonging to an ordinary class of accidents can not be questioned. There was nothing extraordinary in its nature, but it was one of the usual occurrences to he expected in the use of horses upon the streets,- and appellant could not be injured by its being treated as such. Such an accident was treated by the Supreme Court as ordinary and of a class to be guarded against in City of Lacon v. Page, 48 Ill. 499.

Before this accident the horse had proved uniformly kind and gen.tle, the harness was nearly new, and it does not appear, nor is it claimed that appellee or the driver were guilty of any negligence. Neither is there any .objection to the verdict on account of the amount of damages. The point is made that the wall was not, of insufficient height, because it was high enough to stop a carriage if not struck with sufficient force to throw the occupant over, and if struck with such force, then it would be safer to be thrown over into the cut than to be thrown against a higher wall. It is said that if the wall had been higher, appellee might have been instantly killed. It is impossible to say what the comparative chances in general might be, and we have no rule or formula for determining the comparative probabilities of injury or death by being thrown against the wall or down into the street below, nor does the evidence aid us to determine that question in this case. Appellee does not seem to have been thrown with very great force, for she alighted upon the wall and fell or rolled off into the cut. We are not able to say from the evidence that it would be safer to be thrown down sixteen or seventeen feet into a stone cut than to be thrown against a wall. It does appear, however, that appellant, by its act in a matter where there was no compulsion upon it to act at all, had produced a condition not before existing, where in case of such an accident as this runaway, one or the other of those things would be very likely to happen. Exchange street was a street in regular, daily use by the public, and when appellant formed its scheme for cutting down a part of it to further the convenience of its citizens, and designed leaving a portion for its former use, it was its duty to make the proposed change in such way as to leave the upper roadway reasonably sufficient in width and method of construction to answer the purposes of a public way under all ordinary conditions and in view -of ordinary accidents. It was required to so construct it as to reduce, as far as reasonably practicable, the chances of injury to persons using the way on account of the ordinary accidents incident to such use. If it could not make the proposed change where there was a safe highway existing and leave an upper roadway reasonably safe after the change, it should forbear to make it. Joliet v. Verley, 35 Ill. 58. Cities are invested with the power of eminent domain, and are thus provided with the means to acquire all necessary lands for streets, and they assume the duty of exercising all the chartered powers they possess in the performance of their obligations to a reasonable degree. While the obligation extends no further than to require that the way shall be reasonably safe, it must be so in view of ordinary accidents likely to occur. On the north side of the upper roadway there was a sidewalk which reduced the space 'left for a carriage way. so that when the horse turned into Exchange street it was necessary to turn upon a comparatively narrow way. It is matter of common knowledge that it requires considerable space to make a turn in safety when going at a high rate of speed. This horse was not running fast, and might have made the turn in safety if the grade had been favorable, but in addition to the narrow way, the street surface inclined toward the wall, making it still more difficult to make the turn in safety. As it was, the horse practically cleared the wall, and with but little more space the injury would not have occurred. A coping stone of great weight was thrown into the cut, but it is evident that this was not done by striking against it alone, but more probably it was lifted by the wheel running under it. The breaking of the thills and cross bar was probably done at the telegraph pole. We think there was sufficient evidence to authorize the jury to find that the roadway, by reason of its width and the kind and manner of construction of the roadway and wall with the deep cut .adjoining was not reasonably safe for teams coining down the hill on Broadway and turning into the roadway at any considerable rate of speed and continuing down the hill. Those hills and all the surroundings were matters to be considered in determining the plan of construction, and the way should be reasonably safe in view of the entire situation. The original way was free from the dangerous adjunct of a deep cut, and appellant should not make one and leave the street open above unless it could do so with a due regard to the public safety.

The law applicable to the case is well settled in .this State. If there is negligence on the part of a city, the mere fact that it is through an accident that the negligence produced the injury, will afford no excuse for the city. The injury to the appellee was the combined result of the runaway and of the insufficiency of this roadway, and but for such insufficiency the injury would not have occurred. If a person while observing due care for his personal safety be injured by the combined result of an accident and the negligence of a city or village, and the injury would not have been sustained but for such negligence, yet, although the accident be the primary cause of the injury, if it was one which common prudence and sagacity could not have foreseen and provided against, the negligent city or village will be held liable for the injury. Village of Carterville v. Cook, 129 Ill. 152; Joliet v. Verley, 35 Ill. 58.

What has been said disposes of questions raised on the refusal of instructions for appellant.

The judgment will be affirmed.

Judgment affirmed.