Mr. Presiding Justice Brown
delivered the opinion of the court.
In this case the city was not liable unless upon the ground that the “plan” or “design” for the walk at the place in question, i e., with the “step-down” between the two lots, was dangerous.
The proposition that negligence can be predicated of the “plan” or “design” of any municipal work, in that it does not give the public more complete protection, has been repudiated by many courts for various reasons; among them much importance has been given to the argument áb inconvenienti.
Cases which hold thus strongly are Case et al. v. The Northern Liberties, 35 Pa. St. 324; Lansing v. Toolan, 37 Mich. 152; Davis v. The Mayor, etc., 61 Mich. 530; Shippy v. The Village of Au Sable, 65 Mich. 494; Urquhart v. The City of Ogdensburg, 91 N. Y. 67; Monk v. Town of New Utrecht, 104 New York, 552; Roach v. City of Ogdensburg, 87 N. Y. Sup. Ct. Rep. 467.
It may be claimed that construction of sidewalks on different grades with a “step-down” from one to the other, cannot be called a “plan” or “design” “adopted” by the municipality, as distinguished from “defects in construction” or “repair;” but this question was raised, and as we think, decided correctly, in Urquhart v. Ogdensburg, supra. In that case the common council of Ogdensburg had not taken any action in relation to the sidewalk, the slope of which from the house to the curb was alleged to be the negligent construction which had caused the accident. The court below charged the jury “that if the corporation had adopted a plan in terms, that is, if the common council, the body having charge of sidewalks, had taken into consideration in advance the subject of what would have been a proper walk to construct in this place, and had determined that, the city would not have been liable for constructing a walk of the kind. But the common council did not take into consideration in advance this subject. It took no action upon it.” The Court of Appeals declared that instead of this charge, the trial judge should have charged that “the defendant could not be held liable for any fault in the plan of the work, and hence was not liable for the steepness of the slope or incline from the platform to the curb stone.” It held that the rule that a municipality was not liable for the bad plan or design of a sidewalk applied to eases where the approval of the work when completed was to be inferred from an omission to disapprove it after it was built, as well as to a design proposed and accepted before the work was built.
Some courts have accepted the rule that a city is liable only for faults or defects in construction and maintenance, and not for bad and dangerous plans or designs and methods in municipal work, only with modification. They say that whére such a work as a street or sidewalk as planned, ordered or accepted by the governing authority of the city is so manifestly dangerous and unsafe that the court can say, as a matter of law that it is so, the city should be held liable, but not otherwise. It should not be left to a jury to say 'whether the city was negligent in such plans or methods thus ordered or accepted. Among cases which hold the rule thus modified may be cited: Gould v. City of Topeka, 32 Kan. 485, and Teager v. City of Flemingsburg, 109 Ky. 746.
But whether the rule in its strictness as enunciated by the Court of Appeals of New York in Urquhart v. The City of Ogdensburg, or as modified by the Supreme Court of Kansas in Gould v. The City of Topeka, is adopted by us, the case at bar seems to us to be governed by it. For reasons various and undoubtedly reaching back far into the history of Chicago, the sidewalks of Chicago are not all on the same level, even on the same street or on the same side of the street. The city has allowed these sidewalks, with slight differences of level between respective lots, to remain, and has accepted as sufficient, well constructed sidewalks adjoining each other but not on a level.
In the case at bar the two pieces of sidewalk involved are admitted to have been made of planks, sound, solid and firmly fastened in place, but there was a difference of thirteen inches in the grade—a clear perpendicular step-off without sloping boards or a step.
This had been the condition for over a year and a half. There is no claim that any other accident had occurred there. The Supreme Court used language in the case of City of Chicago v. Bixby, 84 Ill. 82, which seems to us applicable here:
“After such an accident it is natural for persons to conclude it was not safe. But it is the fact of the injury having occurred that suggests the idea of the want of proper construction. It is more than probable that immediately before this occurrence, the same witnesses would have said this step was safe, and would have referred to the great length of time it had been used and the large number of persons who had passed over it without accident, as strong evidence of the fact.”
In the Bixby case a step had been placed between the two levels; those two levels being about the same distance apart as in the case at bar.
The court, speaking in the Bixby case of the step as compared with an inclined plane, argued that an inclined plane would have been more dangerous than the step.
In the case at bar there was neither step nor inclined plane, but for a step down of thirteen inches— certainly not more than frequently occurs from curb to street level, or from sidewalk to cross-walk—the city or the builder of the sidewalk might have concluded that the absence of an intermediate step would be safer than its presence. There might be less danger of stumbling or slipping. The distance is not so great as two treads of an ordinary staircase. We do not think the court below could have properly said, as a matter of law, that the method or plan of construction was dangerous, and we think it properly took the cause from the jury.
We are aware.that our opinion in this case is inconsistent with that of this court in Pfeifer v. Town of Lake, 37 Ill. App. 367, where in a similar case the court held that the case should have been left to the jury so that they might have determined from all the evidence whether the sidewalk was defectively constructed by reason of the step-down. But after a careful consideration of the opinion of the court as voiced by Judge Moran, and of the dissenting opinion of Judge Waterman, we are constrained to agree with the reasoning and conclusions of the latter. We think., also, that it more x correctly states the deductions to be made from the decisions of the Supreme Court. The opinion of the court cites City of Chicago v. Gallagher, 44 Ill. 295, and City of Chicago v. Langlass, 66 Ill. 366, as authority for its position that the question whether the sidewalk was so defective as to render the city liable because not on a level, should have been sent to a jury. We agree with the minority opinion that these cases do not go thus far, but are authority only for the modified rule about accepted methods of construction of sidewalks above stated; that is, that the jury may decide on the liability of the city for an accident alleged to have resulted from them, when as a matter of law the court can say the accepted method of construction was dangerous.
Moreover, we think that the Supreme Court in the City of Chicago v. Bixby, 84 Ill.
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Mr. Presiding Justice Brown
delivered the opinion of the court.
In this case the city was not liable unless upon the ground that the “plan” or “design” for the walk at the place in question, i e., with the “step-down” between the two lots, was dangerous.
The proposition that negligence can be predicated of the “plan” or “design” of any municipal work, in that it does not give the public more complete protection, has been repudiated by many courts for various reasons; among them much importance has been given to the argument áb inconvenienti.
Cases which hold thus strongly are Case et al. v. The Northern Liberties, 35 Pa. St. 324; Lansing v. Toolan, 37 Mich. 152; Davis v. The Mayor, etc., 61 Mich. 530; Shippy v. The Village of Au Sable, 65 Mich. 494; Urquhart v. The City of Ogdensburg, 91 N. Y. 67; Monk v. Town of New Utrecht, 104 New York, 552; Roach v. City of Ogdensburg, 87 N. Y. Sup. Ct. Rep. 467.
It may be claimed that construction of sidewalks on different grades with a “step-down” from one to the other, cannot be called a “plan” or “design” “adopted” by the municipality, as distinguished from “defects in construction” or “repair;” but this question was raised, and as we think, decided correctly, in Urquhart v. Ogdensburg, supra. In that case the common council of Ogdensburg had not taken any action in relation to the sidewalk, the slope of which from the house to the curb was alleged to be the negligent construction which had caused the accident. The court below charged the jury “that if the corporation had adopted a plan in terms, that is, if the common council, the body having charge of sidewalks, had taken into consideration in advance the subject of what would have been a proper walk to construct in this place, and had determined that, the city would not have been liable for constructing a walk of the kind. But the common council did not take into consideration in advance this subject. It took no action upon it.” The Court of Appeals declared that instead of this charge, the trial judge should have charged that “the defendant could not be held liable for any fault in the plan of the work, and hence was not liable for the steepness of the slope or incline from the platform to the curb stone.” It held that the rule that a municipality was not liable for the bad plan or design of a sidewalk applied to eases where the approval of the work when completed was to be inferred from an omission to disapprove it after it was built, as well as to a design proposed and accepted before the work was built.
Some courts have accepted the rule that a city is liable only for faults or defects in construction and maintenance, and not for bad and dangerous plans or designs and methods in municipal work, only with modification. They say that whére such a work as a street or sidewalk as planned, ordered or accepted by the governing authority of the city is so manifestly dangerous and unsafe that the court can say, as a matter of law that it is so, the city should be held liable, but not otherwise. It should not be left to a jury to say 'whether the city was negligent in such plans or methods thus ordered or accepted. Among cases which hold the rule thus modified may be cited: Gould v. City of Topeka, 32 Kan. 485, and Teager v. City of Flemingsburg, 109 Ky. 746.
But whether the rule in its strictness as enunciated by the Court of Appeals of New York in Urquhart v. The City of Ogdensburg, or as modified by the Supreme Court of Kansas in Gould v. The City of Topeka, is adopted by us, the case at bar seems to us to be governed by it. For reasons various and undoubtedly reaching back far into the history of Chicago, the sidewalks of Chicago are not all on the same level, even on the same street or on the same side of the street. The city has allowed these sidewalks, with slight differences of level between respective lots, to remain, and has accepted as sufficient, well constructed sidewalks adjoining each other but not on a level.
In the case at bar the two pieces of sidewalk involved are admitted to have been made of planks, sound, solid and firmly fastened in place, but there was a difference of thirteen inches in the grade—a clear perpendicular step-off without sloping boards or a step.
This had been the condition for over a year and a half. There is no claim that any other accident had occurred there. The Supreme Court used language in the case of City of Chicago v. Bixby, 84 Ill. 82, which seems to us applicable here:
“After such an accident it is natural for persons to conclude it was not safe. But it is the fact of the injury having occurred that suggests the idea of the want of proper construction. It is more than probable that immediately before this occurrence, the same witnesses would have said this step was safe, and would have referred to the great length of time it had been used and the large number of persons who had passed over it without accident, as strong evidence of the fact.”
In the Bixby case a step had been placed between the two levels; those two levels being about the same distance apart as in the case at bar.
The court, speaking in the Bixby case of the step as compared with an inclined plane, argued that an inclined plane would have been more dangerous than the step.
In the case at bar there was neither step nor inclined plane, but for a step down of thirteen inches— certainly not more than frequently occurs from curb to street level, or from sidewalk to cross-walk—the city or the builder of the sidewalk might have concluded that the absence of an intermediate step would be safer than its presence. There might be less danger of stumbling or slipping. The distance is not so great as two treads of an ordinary staircase. We do not think the court below could have properly said, as a matter of law, that the method or plan of construction was dangerous, and we think it properly took the cause from the jury.
We are aware.that our opinion in this case is inconsistent with that of this court in Pfeifer v. Town of Lake, 37 Ill. App. 367, where in a similar case the court held that the case should have been left to the jury so that they might have determined from all the evidence whether the sidewalk was defectively constructed by reason of the step-down. But after a careful consideration of the opinion of the court as voiced by Judge Moran, and of the dissenting opinion of Judge Waterman, we are constrained to agree with the reasoning and conclusions of the latter. We think., also, that it more x correctly states the deductions to be made from the decisions of the Supreme Court. The opinion of the court cites City of Chicago v. Gallagher, 44 Ill. 295, and City of Chicago v. Langlass, 66 Ill. 366, as authority for its position that the question whether the sidewalk was so defective as to render the city liable because not on a level, should have been sent to a jury. We agree with the minority opinion that these cases do not go thus far, but are authority only for the modified rule about accepted methods of construction of sidewalks above stated; that is, that the jury may decide on the liability of the city for an accident alleged to have resulted from them, when as a matter of law the court can say the accepted method of construction was dangerous.
Moreover, we think that the Supreme Court in the City of Chicago v. Bixby, 84 Ill. 82, decided that the city was not liable for negligence because of a step-down of a foot between the levels of two sidewalks. It is true that in that case there was a step between, but the discussion concerning the safety of the step appears to us to reveal that the court did not think the change in level itself a dangerous construction for which the city could be held. We do not think it was in the case at bar. Undoubtedly it would be better if no such changes in grade or level between adjoining sidewalks existed within the very large area of Chicago. To this ideal condition we may hope the city is tending, but in view of the probable consequences attaching to holding the doctrine declared by the court in Pfeifer v. The Town of Lake, and because we hold that doctrine an extension of the liability hitherto placed upon municipalities for sidewalk accidents, we must decline to follow it. Our conclusions are rather expressed by slightly paraphrasing some statements of the dissenting opinion in that case: “The complaint is not that the work in building the walk was improperly or negligently done, but that its design was improper and injudicious. * * * This is a matter over which the courts have no control. They cannot compel the city to build any walk at all; because it has the power to grade and improve streets, it is not under obligation to do so. And having a discretion as to whether it will improve at all, it has also a discretion as to the kind of improvement, if any, it will make. * * * Its judgment as to what is the best kind of improvement is not subject to review by any court or jury in cases where the court cannot say, as a matter of law, that the plan itself is so dangerous that its construction was negligence.”
We do not agree with counsel for appellee as to the question of contributory negligence. That was a question for a jury, had the court not properly taken the case away from it oh the primary and more fundamental point.
The judgment of the Circuit Court is affirmed.
Affirmed.