City of Streator v. Hamilton , 1893 Ill. App. LEXIS 68 ( 1893 )

Opinion oe the Court,

Cartwright, X

Appellee sued appellant for damages sustained by falling while passing over one of its sidewalks, and alleged that her fall was caused by a defect in the sidewalk which rendered appellant liable. There was a trial, which resulted in a verdict and judgment for appellee for SI,500,

The plaintiff’s account of the accident was that she was going toward home with two parcels in her arms, on June 1Y, 1891, at about 11 o’clock in the forenoon, when the heel of her shoe was caught iu the walk in some way Avhich she AAas not able to explain; that part of the heel of her shoe Avas torn off, and that when it gaAe Avay she fell at full length upon the walk, causing a sprain of the ankle, and resulting in an abortion. The walk in question was shoAvn to he about five feet Avide, and made of tAVo-inch plank laid crossAvise upon three stringers two inches thick and six inches high. The Avalk Avas an old one, and there Avas considerable travel over it. Plaintiff fixed the place Avhere the heel was caught within a space of about ten feet and near a certain gate. That the accident occurred at that place was not in doubt, and it Avas shown quite clearly that there AAas no defect in the Avalk Avhere it occurred, except that one plank which had a sappy edge on the upper side had decayed in that part from natural causes, and the edge had sloughed off, leaving a crevice on the upper side from one and a half to two inches wide, next to the adjoining plank. This decayed portion did not extend through the plank, which was of the original width at the bottom, but the opening between the planks on the upper side Avas probably wide enough and deep enough to admit the heel of the shoe.

It Avas necessary to a recovery by the plaintiff, that she should prove that the proximate cause of her fall and consequent injury, was a failure of duty on the part of the defendant, in respect to the alleged defect. To show such failure, it was essential that the injury should be caused by a defect of such a nature as rendered the walk not reasonably safe, and that an ordinarily careful and prudent person, having charge of the walk, would have so regarded it and have made repairs. While we shall not express any opinion on the facts, it will be apparent from what has been said, that it was by no means clear that the alleged defect was such as to create a liability, and that the case was such as required that no material errors of law should intervene against th'e defendant, and especially in the admission of testimony which might have tended to produce a verdict on general principles or for some other neglect.

On the trial the plaintiff was allowed, against the objection of defendant, to introduce evidence of the condition of the walk for a distance of about two' blocks. Its condition elsewhere was wholly irrelevant to the inquiry concerning the liability of the defendant for the injury to the plaintiff.

An omission to repair a defect in the walk, could. only become a wrong to the plaintiff, when an injury resulted to her from such omission. She suffered no injury from any neglect to repair any defect, unless it was where the heel of the shoe was caught, and the evidence must connect her injury with that neglect as a proximate cause. The evidence objected to, tended merely to prove a neglect of duty to the public at large, not resulting in any injury to the plaintiff.

The only reason advanced by counsel in support of its admission is that it tended to prove notice to the defendant of the alleged defect which caused the injury. We are unable to see how the existence of a hole or broken or loose board in another place would afford information to the defendant that the plank in question was in the condition shown by the evidence. The only effect would be to lead the jury to believe that the city authorities were habitually negligent concerning sidewalks. The evidence should not have been admitted.

Plaintiff was also permitted to introduce evidence that repairs were made on the sidewalk alter this accident, by nailing barrel staves and pieces of cracker boxes over holes at various places. This evidence was improper and should have been excluded. Hodges v. Percival, 132 Ill. 53; Wabash R. R. Co. v. Kime, 42 Ill. App. 272; Black on Proof and Pleadings in Accident Cases, Sec. 30.

It is argued that this evidence was competent to show that there were holes in the sidewalk. If that was the tendency of the proof it would still be improper, for the jury were only concerned with the alleged defect where the accident occurred; but that was not the natural effect of the proof. The jury would understand it only as an admission of the defective condition of the sidewalk.

The seventh and eighth instructions asked by the defendant were refused. They stated the law correctly and contained propositions of law whieh were not embraced in any instructions given to the jury. They should have been given. The judgment will be reversed and the cause remanded,