{ "id": 3181570, "name": "Percival B. Coffin, Administrator of the Estate of James MacDonald, Deceased, Appellee, v. City of Chicago, Appellant", "name_abbreviation": "Coffin v. City of Chicago", "decision_date": "1929-07-03", "docket_number": "Gen. No. 33,439", "first_page": "29", "last_page": "35", "citations": [ { "type": "official", "cite": "254 Ill. App. 29" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "159 Wis. 619", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8699189 ], "opinion_index": 0, "case_paths": [ "/wis/159/0619-01" ] }, { "cite": "92 Ill. App. 453", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5284396 ], "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-app/92/0453-01" ] }, { "cite": "239 Ill. 483", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 849004 ], "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill/239/0483-01" ] } ], "analysis": { "cardinality": 621, "char_count": 11700, "ocr_confidence": 0.524, "pagerank": { "raw": 2.3522948057117156e-07, "percentile": 0.7933570644466145 }, "sha256": "40b27f4477ef0e320f1bffa2009bb053c0e4636c9dbc2d767f9fbc06d1cd2d46", "simhash": "1:79146f11f6cecb16", "word_count": 2038 }, "last_updated": "2023-07-14T20:09:45.608960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Percival B. Coffin, Administrator of the Estate of James MacDonald, Deceased, Appellee, v. City of Chicago, Appellant." ], "opinions": [ { "text": "Mr. Justice Gridley\ndelivered the opinion of the court.\nIn an action commenced in the superior court of Cook county on April 16,1926, against the City of Chicago and Thomas J. Duffy, for negligently causing the death of plaintiff\u2019s intestate, there was a trial before a jury in December, 1928, resulting in a verdict and judgment against the City for $5,000, and this appeal followed. Upon the first trial in June, 1928, Duffy on plaintiff\u2019s motion was dismissed as a defendant, a jury under the court\u2019s instruction returned a verdict finding the City not guilty, and a new trial was awarded.\nPlaintiff\u2019s declaration consisted of three counts, to which the City filed a plea of the general issue. In the first count plaintiff averred that on June 7, 1925, defendant (City of Chicago) was possessed and had control of a public \u25a0 sidewalk on the west side of Eacine Avenue (a north and south street) and south of West 47th Street, Chicago; that defendant also had control of a certain opening, metal railings supported by metal posts surrounding said opening, and a cement or stone stairway (about 30 feet south of West 47th Street) leading from said opening in said sidewalk on Eacine Avenue to the basement of a building on the southwest corner of Eacine Avenue and West 47th Street; that Duffy was the owner of the building, etc.; that it was the duty of Duffy and the City to keep and maintain the sidewalk, the opening therein, and the metal railings and posts surrounding the opening, in good condition and repair; that they negligently permitted the metal railings and posts surrounding the opening \u201cto become rusted, and be and remain in a state of decay and weakened condition\u201d; that they were in such condition for a 'long period of time prior to June 7, 1925, of which defendants had or by the exercise of a reasonable diligence should have had knowledge; that on the day mentioned, while James MacDonald was in the exercise of due care and \u201cwhile he was casually leaning against said metal railings so surrounding said opening,\u201d a part or section of the railings and posts \u201ccollapsed and gave way suddenly and without any warning to the said James MacDonald and precipitated him with .gr\u00e9at force into the opening and down upon and along the walls and floor thereof\u201d whereby he was so greatly injured that he died on June 13, 1925; and that he left him surviving a widow and five sons (naming them), who are still living and who, by reason of his death, have been deprived of their means of support, etc.\nThe second count is predicated upon a claimed violation of an ordinance of the City of Chicago concerning uncovered openings in public sidewalks.\nIn the third count it is averred that the intersection of the two streets was a street car line intersection and transfer corner, where large numbers of people habitually leaned against or sat upon the railing; that defendants negligently permitted the railing to become in a state of decay and weakness from age and use so that it was unfit and unsafe to act as a guard or protection about the opening, and to so continue for a long space of time; and that, while plaintiff\u2019s intestate was standing upon the sidewalk and \u201cwas in the exercise of all due care for his own safety leaning or partly supporting Ms body against said railing, and in consequence of said negligence of defendants and said condition of the railing,\u201d it broke and gave way, and plaintiff\u2019s intestate fell, etc.\nUpon the trial, the testimony of three of plaintiff\u2019s witnesses disclosed in substance that on Sunday afternoon, June 7,1925, they and plaintiff\u2019s intestate, MacDonald, met in a \u201csoft drink parlor\u201d on the southeast corner of Racine Avenue and west 47th Street; that after having a few light drinks all crossed Racine Avemie to the sidewalk on the west side thereof and to a point a short distance south of west 47th Street; that, while some or all were waiting to board a street car and all were engaged in conversation, MacDonald and David Barnes leaned against the railing, and, a post or posts and a portion of the railing giving way, both were precipitated into the areaway or basement below, falling a distance of about eight feet; and that MacDonald, who weighed about 190 pounds, sustained a skull fracture which caused his death a few days thereafter.\nDefendants\u2019 witness, Harry Pryor, employed as a butcher at the City abattoirs, testified on direct examination: \u201cOn June 7, 1925, I lived up over Tom Duffy\u2019s place. ... I was standing in front of the building, near the corner. ... I noticed the accident. . . . There were three men together. . . . They came across from the other side of the street over to the side that I was on, and two of them got up on this railing, and one leaned against it and over went the railing. Two of them fell.\u201d In response to a question by the court as to where MacDonald was just prior to the accident, the witness replied: \u201cOh, sitting on the railing, with his feet upon the first rail.\u201d On cross-examination the witness testified: \u201cTwo of them were on the railing. . . . They got up and put their feet on the lower rail, and when the last one leaned against it, it went. \u2019 \u2019\nAs to the construction and condition of the railings and posts David Barnes, plaintiff\u2019s witness and a machinist by trade, testified on direct examination that on the following day he examined them; that the posts were fastened with four lag screws; that there were pieces of iron pipe about eight feet long, with posts every eight feet, which posts were fastened into the sidewalk with expansion shells and lag screws; that he found that the lag screws were so rotted that \u201cthey were about as thin as a match\u201d; that when part of the railing went over the \u201cheads broke off\u201d; that they were \u201crusty\u201d; and that the railing had been there to his knowledge for about five years. On cross-examination he testified as to the lag screws: \u201cI did not see their size. You cannot see their size; all you can see is the head. You couldn\u2019t tell they were rusty unless you had a hammer, and brolce them off.\u201d He further testified that at the time of the accident \u201cI didn\u2019t know they were rusty; the railing, by looking at it, appeared to be solid. ... It was two pipes high\u2014 the first one being about 18 inches from the ground and the second about 36 inches. My body would strike against the top rail about at the small of my back.\u201d Fred Martin, plaintiff\u2019s witness, testified on cross-examination that just before the accident he \u201cpartly leaned\u201d against the railing, and that it \u201cdid not seem to me to be loose.\u201d\nThomas J. Duffy, deiendant\u2019s witness, testified that he was and had been for eight years the owner of the corner building and of the railing in question; that he did not see the accident; that the railing consisted of two iron pipes, which were about two inches in diameter and which extended through four iron posts; that the posts were fastened into the cement sidewalk by screws about four inches long into lead, drilled into the concrete walk; that the screws were square headed and \u201cscrewed in with a wrench\u201d;'that he did not know when the railing was originally erected; that he had had it painted about eight months before the accident; that one of the rails had been broken about a year before the accident and he had had it repaired; that he had frequently examined the entire railing before the accident, and that upon the last examination shortly before the accident he found it \u201csolid\u201d when he tested it and attempted to shake it; and that he had originally been made a party defendant but had been dismissed out of the ease and \u201chis liability settled.\u201d Defendant\u2019s witness, Thomas Johnson, an employee of Duffy at the time of the accident, gave his version thereof. And he testified that the railing always appeared to him to be solid, that he examined it about a week before the accident, and that then it appeared safe and sound and did not \u201cgive any.\u201d\nAfter reviewing the evidence we are of the opinion that the verdict is against the weight of the evidence on the question of the City\u2019s negligence. Plaintiff did not introduce any evidence showing that the City ever had received any actual notice that the railing was unsafe or defective. And we think that it appears from all the evidence, and particularly from the testimony of plaintiff\u2019s witness, Barnes, that there was a latent defect in the structure, not discoverable by the City in the exercise of ordinary care on its part. A municipality is not ordinarily liable for latent defects in sidewalks, or structures thereon or immediately adjacent which have been erected by others. In 43 Corpus Juris, p. 1051, sec. 1826, it is said: \u201cA municipality is not an insurer against all defects, latent as well as patent, but its liability is for negligence, and injuries resulting from latent defects in a highway not due to faulty municipal work, and which could not have been discovered by ordinary care and diligence, do not give a right of action against the municipality in the absence of actual notice.\u201d And we understand this to be the law of this State. (Karczenska v. City of Chicago, 239 Ill. 483, 485; Powell v. Village of Bowen, 92 Ill. App. 453, 455.) In the Powell case it is said: \u201cMere existence of the defect which caused the injury is not enough to establish negligence. It is the failure to repair the defect after notice, actual or presumed, that constitutes the negligence sufficient to support a recovery.\u201d In the present case there was testimony to the effect that the railing upon examinations made shortly before the accident appeared to be firm and solid. Indeed; one of plaintiff\u2019s witnesses testified that it \u201cdid not seem to be loose.\u201d And under all the evidence it is difficult for us to perceive how the City could be presumed to have had notice that some of the lag screws in the structure had become worn and rusty.\nCounsel for the City also contended in substance that the judgment cannot stand because it appears that MacDonald and his companions, at and immediately before the time of the accident, were making an improper use of the structure or railing in that they were either leaning against or sitting upon it. In view of our above holding as to the insufficiency of the evidence on the question of the City\u2019s negligence, we do not deem it necessary to pass upon the contention. We may say, however, that there are authorities supporting the contention. (See Stickney v. City of Salem, 3 Allen [Mass.] 374; Carlson v. City of Washburn, 159 Wis. 619.) In 43 Corpus Juris, p. 1073, sec. 1848, it is said: \u201cAn improper use of a structure in a street will preclude recovery against the municipality. This rule has been applied to a person who leans against or sits upon a railing or barrier erected on the side of a street and is injured by reason of its defective condition, although a different view has been taken in some jurisdictions so far as merely leaning against a railing is concerned.\u201d\nAnd we do not deem it necessary to discuss counsels\u2019 further contention, viz., that the court committed error in giving instruction No. 2, offered by plaintiff.\nThe judgment of the superior court is reversed and the cause remanded.\nReversed and remanded.\nBarnes, P. J., and Scanlan, J., concur.", "type": "majority", "author": "Mr. Justice Gridley" } ], "attorneys": [ "Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Charles M. McDonnell, Assistant City Attorney, E. Marshall Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.", "John J. Coburn and John P. McDonald, for appellee." ], "corrections": "", "head_matter": "Percival B. Coffin, Administrator of the Estate of James MacDonald, Deceased, Appellee, v. City of Chicago, Appellant.\nGen. No. 33,439.\nOpinion filed July 3, 1929.\nSamuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Charles M. McDonnell, Assistant City Attorney, E. Marshall Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.\nJohn J. Coburn and John P. McDonald, for appellee." }, "file_name": "0029-01", "first_page_order": 61, "last_page_order": 67 }