delivered the opinion of the Court:
This case was before us at the September term, 1877, when the judgment was reversed on account of erroneous instructions. (City of Joliet v. Seward, 86 Ill. 402.) After the cause was remanded another trial was had, which resulted in a verdict and judgment in favor of the plaintiff, for the same amount that she received on the first trial. On appeal to the Appellate Court the judgment of the circuit court was affirmed, and the city of Joliet has prosecuted this appeal.
The argument of appellant was, doubtless, prepared under misapprehension of the statute, as it consists, mainly, of a discussion of controverted questions of fact, which, under the statute, in a case of this character, we are not at liberty to consider. Where the Appellate Court finds, as was done here by affirming the judgment, that the evidence sustains the verdict of the jury, such finding as to the facts is conclusive in this court, and only questions of law can be considered. City of Aurora v. Pennington, 92 Ill. 564; Tenney v. Foote, 95 id. 99; Gray v. Agnew, id. 315; Brant v. Bill, 96 id. 608.
On the trial of the cause, the defendant, for the purpose of proving that the plaintiff did not exercise ordinary care at the time she was injured, introduced evidence tending to prove that plaintiff had ample time to drive far enough to be out of danger after the lighting of the fuse, before the explosion occurred. In rebuttal, plaintiff proved by two witnesses, Davidson and Nobes, the time that would intervene between the lighting of a fuse and the explosion of the blast. The defendant objected to this evidence, and its admission is relied upon as error. ,
We think the evidence was competent. If the fuse the witnesses testified about was other or different from the one used when the accident occurred, that fact could be established on cross-examination, or by calling other witnesses.
When the cause was here before, it was held that the discharge of the blast was the primary cause of the injury; that the condition of the streets had no connection with the cause of the injury, and so far as the instructions directed the attention of the jury to defects or obstructions in the street as grounds of recovery, they were faulty. Appellant now contends that plaintiff’s first, third and fourth instructions are erroneous, for the reason that they are in conflict with the rule announced, supra. Upon an examination of the instructions, however, it will be found that appellant has misapprehended their meaning. Wo defect in the street, except the blast, is relied upon; nor is there an intimation in the instructions that a recovery could be had on account of any defect in the streets, aside from the blast.
Appellant also objects to the fifth and seventh instructions given for plaintiff. The fifth, in substance, declared, that if the work on the street was being done in such a manner and for such a length of “ time as that the city authorities should have known of it, had they exercised reasonable care,” etc., actual notice to .the city of the fact of such work was not necessary to be proven. We think there was ample evidence before the jury to base the instruction upon. The work had been commenced several days before the accident occurred, it was on a street much used, and the character of the work was such that the city doubtless knew that it could not be done without blasting.
In regard to the seventh instruction, it is said that it presupposes the fact that the city permitted the blasting. We do not think the instruction is liable to the criticism made upon it. The instruction merely declares that the city had no right to permit or make a dangerous excavation in one of its streets by blasting, or allow the same to be made in a dangerous manner, except it caused such care to be used that others, exercising ordinary care, would not be injured. The principle announced was, no doubt, correct, and we do not perceive how the defendant could be injured by the instruction. But if the instructions complained of were not technically correct, the jury, at the instance of the defendant, was so fully instructed on every branch of the case, we are satisfied they were hot misled by any instruction given for the plaintiff.
So far as the record shows, the case has been fairly tried, and we perceive no ground for reversing the judgment.
The judgment will be affirmed.
Judgment affirmed.