Sherman v. City of Chicago

101 Ill. App. 312, 1902 Ill. App. LEXIS 612

Opinion

Mr. Jhstice Waterman

delivered the opinion of the court.

As to the condition of the walk and especially the plank upon which the plaintiff tripped, the plaintiff’s witness, Mr. Wellendorf, testified : “ As far as I know, that board had been all right up to the time of this accident.” The plaintiff testified: “ I saw the board before it was tripped up by Mr. Levy, before he stepped on it and tripped it up. The board looked all right to me. As far as I could see there was nothing the matter with it.”

Mr. Hahn, a. witness for the defendant, testified : “ This was an old sidewalk ip fair condition. The boards were all whole as far as I could judge. They were old boards, some of them rotten, I should say; I nailed that board down.”

Bertha Palmer testified that she was acquainted with the sidewalk—frequently passed over it. “ So far as I know in going over it, it was good. I never met with any trouble; always seemed good. I didn’t see anything the matter with it.”

John Mengler testified: “ I was on that sidewalk in the forenoon before the accident happened; there were no boards loose along the side of the store that forenoon; when I went over it was all right.”

There was no evidence of actual notice to the defendant of the defect of that it had existed for such a time that the city will be presumed to have known thereof.

One or the other of these conditions must exist to render the city liable.

The instruction complained of ought not to have been given; as, however, it affected only the question of damages, its refusal in a case where there could be no recovery is not material.

The judgment of the Circuit Court is affirmed.