The plaintiff’s first instruction, stripped of its formal verbiage, comes to this, that if a person is injured by a defect in the sidewalk of the city the existence of which the city knew or might have known by the use of due diligence, the city is liable in damages. Such is not the law. It has long been the settled doctrine in this and other states that a municipal corporation is not an insurer against accidents to persons traveling on its streets or sidewalks. It is not required to make its sidewalks perfect and free from every possible defect as a condition to immunity from liability for injuries that may happen by reason of defects therein. In the absence of any acts of positive misfeasance on the part of its officers or employes, it is only liable for failing to exercise reasonable and-ordinary care and diligence to keep its streets and sidewalks in safe repair and condition. The essential inquiry therefore is not merely whether a defect existed to the knowledge of the city, but also whether the city-had exercised reasonable and ordinary care and diligence to keep the sidewalk in safe repair and condition. Such was the ruling of this court in the case of City of Chicago v. Watson, 6 Bradwell, 344, in accordance with the uniform holding of the Supreme Court in numerous like cases. City of Joliet v. Verley, 35 Ill. 58; City of Bloomington v. Bay, 42 Ill. 503; City of Peru v. French, 55 Ill. 317; City of Aurora v. Pulfer, 56 Ill. 270; City of Chicago v. Bixby, 84 Ill. 82.
The test of liability is not merely whether there was a defect in the sidewalk which was known, or should have been known to the city, and from which the injury resulted, for this would be in effect to hold the city liable as an insurer, however diligent it may have been to keep its sidewalks in safe repair and condition. In a large city like Chicago, with its many miles of wooden sidewalks, we must assume that with the natural decay from wear and the action of the elements, its sidewalks are constantly becoming defective in places which the utmost vigilance on the part of the city may be insufficient to always at once repair. As was said in Chicago v. Bixby, supra, “ The law does not require the city to make such works perfect. We apprehend that there are few, if any, sidewalks in that or any other city that could not be improved and made better, and if so they are imperfect; and no court, we apprehend, has ever intentionally announced that such is the duty of a city.”
In the light of these views the error of the plaintiff’s first instruction is manifest. By it the jury were told that if the plaintiff was injured by means of a defective sidewalk, and that the same had been in a defective condition for so long a time prior to the accident that the corporate authorities having charge of the same, could, in the exercise of reasonable diligence, have known of the same and repaired it, and failed to do so, the city was liable, irrespective of whether the defect was of such a nature as to render the sidewalk unsafe or dangerous.
The true test of liability, namely, whether the city had used ordinary an 1 reasonable care and diligence to keep the sidewalk in safe condition and repair or not, was wholly omitted from the instruction, and the liability was made to depend upon the mere fact that there was a defect, known to the city, which it neglected to repair. This was not enough ; and the instruction was misleading, since the jury were expressly given to understand that proof of a defect in the sidewalk, irrespective of its character, known to the city, and a resulting injury to the plaintiff while in the exercise of due care, were all that was required to make out a cause of action.
The error in this instruction is not cured by any other, nor was the true rule on the subject anywhere specifically pointed out for the information and guidance of the jury.
The merits of the case under the evidence were, to say the least, doubtful, and the instruction ought to have been substantially accurate, for it involved the very gist of the action.
It may be added that the instruction is also erroneous in excluding the idea that the city is subject only to the duty of exercising reasonable diligence in keeping its sidewalks in repair. As defined in the instruction, it makes the duty of the city to keep its streets and sidewalks in reasonably safe repair and condition, absolute; while, as we have already seen, its duty is more restricted, requiring only the use of due diligence to keep them in safe condition.
For the error in giving the plaintiffs first instruction, the judgment of the court below is reversed, and the cause remanded for a new trial.
¡Reversed and remanded.