Cary v. City of Chicago

60 Ill. App. 341, 1895 Ill. App. LEXIS 276

• Court: Appellate Court of Illinois
• Decided: October 31, 1895
• Status: Published

Opinion

Mr. Presiding Justice Gary

delivered the opinion of the Court.

The case made by the appellant is, that in Cottage Grove avenue was a double track street railway; that from 44th street south the avenue * had never been paved, outside of the tracks; that one Conway, under a contract with the city, was engaged in paving it; that under his contract he was obliged to use a steam roller weighing not less than fifteen tons to pack the foundation.

John Leibold was a plumber for whom the appellant worked, and they were both in a one horse wagon—Leibold driving—going south. Leibold knew for two months that the street was being paved, and saw the roller three hundred feet off, before he drove up toward it, but drove on, and when near to it, steam was blown, scaring the horse and injuring the appellant.

The court rightly instructed the jury to find for the city.

Mo defect is alleged in that part of the avenue occupied by the street railway. As to the residue, the duty of the city to keep it in condition for travel was suspénded while paving was being done. Osgood v. Chicago, 44 Ill. App. 532; 154 Ill. 194.

Indeed, the claim of the appellant is not because of the condition of the street, but upon the theory that the reservation in the contract with Conway, of superintendence by the commissioner of public wo *ks, makes the’ city liable, for the careless (if it was careless) act of blowing steam.

Such superintendence did not constitute the driver of the steam roller the servant of the city. Fitzpatrick v. Chicago & W. Ind. R. R., 31 Ill. App. 649.

The judgment is affirmed.