City of Chicago v. Schmidt

Citations

• 107 Ill. 186
• 1883 Ill. LEXIS 245

Syllabus

<p>1. New triad—on the finding of the facts. In an action against a city and a railway company, to recover for the death of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the defendants, the first trial resulted in a judgment for the defendants, which was reversed by this court, and the cause remanded. There was a second trial, -with the same result, and again reversed. The railway company was then dismissed from the case. A third trial was had, resulting in a verdict against the city for $5000, which was set aside. A fourth attempt resulted in a mis-trial. Eor the fifth time the ease was submitted to a jury, and there was a judgment for the plaintiff for $3500, which was affirmed by the Appellate Court. On a further appeal to this court, by the city, it was considered, if no imperative rule of law forbid, the maxim, debet esse finis litium, might well be applied.</p> <p>2. Death from negligence—liability of city in respect to defective sidewalk. A city had notice of a hole in a sidewalk near a railroad crossing, and neglected to repair the same within a reasonable time. A person in passing over suck walk, exercising due care, stepped into the hole, whereby he was unavoidably thrown upon the railway track before an approaching tiain of cars, and in attempting to get up his clothes caught upon a spike or nail in the sidewalk, and he was struck by the train before he was able to extricate himself, and killed: Held, the city was liable in damages, under the statute, to the personal representatives of the deceased, for causing his death.</p> <p>3. Instruction—partial summing up of the facts. Where an instruction attempts to summarize the facts or elements in a cause essential to a recovery, it is vicious if it omits to give any important particular essential to a recovery.</p> <p>4. But where there are two distinct opposing theories upon which a trial is had, of both of which there is evidence tending to establish, an instruction based u