#### Michael Dinneen, Appellee, v. City of Ottawa, Appellant.

Gen. No. 6,108.

(Not to he reported in full.)

Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed April 14, 1916.

Statement of the Case.

Action by Michael Dinneen, plaintiff, against City of Ottawa, defendant, to recover damages for personal injuries sustained by stepping into a hole in a street near a sidewalk in defendant city. From a judgment for plaintiff, defendant appeals.

Plaintiff was at the time of the injury a man about seventy years old. He had lived in Ottawa a great many years and had been, for a number of years, a member of the city council, his last term of office expiring about eight months before the accident, a part of the time serving as chairman of the street and alley committee, and a part of the time as a member of the sidewalk committee.

At the northwest corner of Columbus and Joliet streets there was a hole, or excavation, near the angle made by the sidewalks where years before a catch-basin for the sewer had been put in there and the hole left open. There was no guard protecting the hole. There would .be little danger from it in the daytime. A pedestrian would not fall into it if he kept on the sidewalk as he turned the right angle to cross the street. The accident happened at. about eleven o’clock1 of a dark night. The street was dark at that place. Plaintiff was walking north on Columbus street and intending to turn at a right angle and go east and walk on Joliet street. He mistook the place, and turned just before reaching the walk, falling into the hole and *304thereby receiving the injury complained of. The ground was hard and level at the place where he turned, and he thought he was still on the walk. He had theretofore been accustomed to walk to his home in this direction on Columbus and Joliet streets, but had habitually used the other side of the street.

Abstract of the Decision.

1. Municipal corporations, § 1107 * —when knowledge by pedestrian of defect in street question for jury. In an action against a city by a former member of the council to recover damages for personal injuries sustained on a dark night, as the result of stepping off a sidewalk and falling into a hole in a street, where it appeared that plaintiff had long been accustomed to use such street and thought he was turning at right angles on another intersecting sidewalk, held that it was a question for the jury whether plaintiff knew of the hole in the street.

2. Estoppel, § 56*—when former member of city council not es-topped to recover for personal injuries due to defeat in street. A former member of a city council is not precluded from recovery against a city for damages for injuries sustained as the result of stepping off a sidewalk into a hole in the street because of the fact that such defect existed at the time he left office.

3. Municipal corporations, § 979*—when city guilty of actionable negligence in neglecting to repair or guard excavation. In an action for damages for personal injuries sustained as the "result of a pedestrian stepping off a sidewalk into an unguarded hole in the street, where years before a catch-basin for a sewer had been put in and the hole left open, held that the city was guilty of actionable negligence in permitting the excavation to remain in such condition, uncovered and unguarded.

4. Municipal corporations, § 1025*—when city charged with notice of defect in street. A city is charged with notice of the existence of an unguarded hole near a sidewalk in the street where such hole has existed for years.

Rector C. Hitt, for appellant.

- Browne & Wiley, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Carnes

delivered the opinion of the court.

*3055. Municipal corporations, § 1107*—when contributory negligence of pedestrian injured by stepping off sidewalk into unguarded hole in street question for jury. In an action by a former member of a city council to recover damages for personal injuries sustained on a dark night, as the result of stepping off a sidewalk into an unguarded hole in the street which had existed for years, where it appeared that plaintiff was familiar with the streets, that the hole existed during his term of office as a member of the city council, but that he thought that he had reached an intersecting sidewalk along which he intended to pass, held that it was a question for the jury whether plaintiff was exercising ordinary care for his safety.