Fahey v. President & Trustees of the Town of Harvard

Citations

• 62 Ill. 28

Syllabus

<p>1. Municipal Corporation—liability for injury from excavation in street.■— Where a party without the consent of the authorities of an incorporated town, dug and left open a large pit in the street, along the sidewalk, in front of land owned by him, without any warning to passers-by, and while the same was so left exposed a person in the night-time, while exercising- due care, fell into the pit and was injured : Held, that the town was not liable unless it had actual notice of the nuisance, or it had remained a sufficient time for notice to be implied.</p> <p>2. Nuisance—case by town far damages paid for wrong of another—declaration. Where a town, when sued by a person for an injury received from falling into a pit dug by a party in the street, in front of his premises, settled the claim of the injured party by payment of §300 before any judgment, and without any notice to the parly creating the nuisance, and then brought an action on the case against such party to recover the sum so paid, the declaration containing no allegation that the town had any notice of the nuisance, or statement of any facts from which notice might have been inferred or implied : Held, that the declaration was bad on general demurrer.</p> <p>3. In such a case, before the town is entitled to recover of the wrongdoer the sum so paid, it must show by the pleadings and proof that the town was legally liable to the injured party.</p>