Village of Sorento v. Johnson

Mr. Justice Sample

delivered the opinion of the Court.

The points made by appellant’s counsel in his argument are, first, that the judgment is not sustained by the evidence; second, that the verdict is excessive; third, that there was error in giving the second instruction for appellee and in refusing instructions A, B and C, offered by the appellant. The statement of facts show the boards in the walk at the place of this accident had occasionally been loose for some time, which was known to at least one member of the village board. While it is true the boards so discovered to be loose by such member were immediately nailed down again, yet the evidence tends sharply to show that the stringers were insufficient to hold the nails. The jury were justified in finding that the walk at the place of the accident was out of repair, and that such fact was known to the authorities. If so, the village was negligent and liable for an injury arising to a person therefrom, if such person at the time was in the exercise of ordinary care. There is no claim made in the argument that the appellee was not in the exercise of such care. She was proceeding along the walk in the usual way and without knowledge that the board was loose, when one end tripped her, causing a hard fall. The evidence shows that her limb was swollen and bruised, and that she has to wear a support for her knee. If the evidence of appellee is to be believed, and it is not attacked, she received quite serious injuries, and the verdict was not excessive. There was no error in giving the second instruction in behalf of appellee. It laid down the law that appellant was required to use all reasonable care and precaution to keep its sidewalks in a reasonably safe condition for persons to pass over the same. The word “ all ” might have been properly omitted, but to use it was not error. The instructions A and C, offered on behalf of appellant and refused by the court, were embodied substantially in other instructions given on its behalf.

There was no evidence to support instruction B, which was to the effect that the village was not liable for damages arising from a loose board, which was wrongfully loosened by some person without the consent of the authorities and of which the authorities had no notice. There Avas evidence tending to shoAV that boys were playing with a bbard already loose, not that they had loosened it. The instruction was also misleading, as the jury might have made it apply to the daughter stepping on the board and loosening it, in Avhich case, although the stringer Avas insufficient to hold a nail, the jury Avould have been required to find for the defendant. It also ignored the issue presented by the second count of the declaration, as to the improper construction of the walk. There being no material error in record, the judgment is affirmed.