City of Aurora v. Pulfer

Citations

• 56 Ill. 270

Syllabus

<p>1. Highways—municipal corporations—of the duty of a city to keep open a traveled way. In a private action against a city, to recover for injuries alleged to have been received by the plaintiff, by reason of the erection of a fence across a road or traveled way, claimed by the plaintiff to be a street, which it was the duty of the city to keep free from such obstructions, it appeared the place where the accident occurred was remote from the business portion of the city, and although the road had been a traveled way for some years before the ground which it passed over was embraced within the city limits, it was very questionable whether it ever was a legal highway, and certainly had never been opened ol recognized as such by the city authorities. The owner of the ground, denying the existence of the way as a public highway, erected the fence in question: Held, that, although the public necessities required a highway at or near that locality, the mere fact that the right of the city to use the way as a street was brought in doubt by the evidence, would, of itself, vest the city with a discretion, for the exercise of which it could not be held answerable, when, if at all, it would proceed to open it.</p> <p>2. A municipal corporation can not be held liable for every accident that may happen where the public convenience may require a street shall be opened. Such corporations are invested with a discretionary power, when, if at all, they will proceed to open new streets in distant parts of the city; and they can not be held liable for simply failing to use this discretionary power; and they have a discretion as to when they will make improvements on unfrequented streets, and they are not liable for every accident that may occur for the want of such repairs.</p> <p>3. Same — liability of cities for injuries resulting from defective highway. If a person receive an injury as the combined result of an accident and a defect in the street or sidewalk, and the accident would