This was an action brought by the appellee against appellant to recover damages for an injury received by him from a fall upon one of the appellant’s sidewalks on the evening of the 6th of January, 1884. There was a verdict for the appellee for $5,000. Motion for a new trial; motion overruled and judgment, from which this appeal is taken; various errors are assigned.
The appellee in his declaration avers that the appellant, in gross violation of its duty, permitted snow and ice to accumulate on its sidewalk, near the corner of Galena and River Streets, on the west side of River Street, so as to form an obstruction and become dangerous to travel; that he, in passing over and along said sidewalk, at about 7 o’clock p. m., January 6, 1884, in the exercise of reasonable care and caution, fell, by reason of the accumulation of ice and snow thereon, and injured his left hip and the sciatic nerve thereof permanently. There is no defect in the construction of the walk claimed. The evidence shows that the walk, where the appellant fell, was much used; that the appellee had, during the month of December, and up to the time he fell, passed over that walk from four to five times daily, and on the day he fell had passed over it five times; and that during the month of December and up to the 6th of January there had been a snow fall of twenty-three and three-tenths inches. The evidence in regard to the amount of snow and ice that had accumulated on the sidewalk was conflicting. The evidence on the part of the appellant tended to show that there was not snow or ice upon the walk sufficient to cause an obstruction to travel; that there might have been an inch as stated by some, and, as stated by others, a “ thin coating of ice and snow was formed upon the walk of the thickness of a boot sole.” All of these witnesses had passed over this walk several times daily. Some of the evidence on the part of appellee tended to show that the snow as it fell was packed down by pedestrians until it became smooth, icy and slippery, with little knolls worn smooth, and that there was from two to three inches of snow in the center of the walk. If this was the condition of the walk there was no liability on the part of appellant. Tet, under the 4th and 5th instructions given for the appellee the jury may have believed that this was the condition of the walk, and have been justified under these instructions to find for the appellee. The instructions were as follows :
4th. “ If the jury believe from the evidence that the plaintiff was injured by reason of the defendant negligently failing to keep the sidewalk in question in a reasonably safé condition for travel over the same but allowed snow and ice to accumulate thereon, so as to make the same unsafe and dangerous to persons using ordinary care and prudence having occasion to pass over the same, and suffered the same to so remain, with notice thereof, or for such length of time as by proper care and diligence they might have known of its condition, then the city is liable in this action, and the jury should so find.”
5th. “If the jury believe from the evidence that the sidewalk in controversy, at the point where the alleged injury occurred, on the 6th day of January, A. D. 1884, the time when said injury occurred, had become dangerous from deposits of ice and snow, and the surface of said walk had become rough and uneven on account thereof, and that such had been the condition for an unreasonable ’ length of time before the alleged injury, and was so at the time of the injury, and that plaintiff, while passing over the same, and in the exercise of ordinary care and prudence, slipped and fell and injured his leg or hip, then the plaintiff is entitled to recover damages for such injury, and the jury should so find.”
They authorized the jury to find for appellee, if the sidewalk was unsafe and dangerous from ice and snow accumulated thereon, even though it had not accumulated to the extent to cause an obstruction. There may have been sufficient ice and snow on the walk to make it slippery, rough, uneven, dangerous and unsafe, and yet the appellant not be liable. To render the appellant liable, the ice and snow must have accumulated to such an extent as to cause an obstruction. Mere slipperiness and unevenness caused by the tramping, thawing and freezing, where the ice and snow has not accumulated to such an extent as to make it an obstruction, does not create a liability.
These instructions are in conflict with the rule announced by the Appellate and Supreme Courts of this State. The Village of Gibson v. Johnson, 4 Ill. App. 288; City of Macomb v. Smithers, 6 Ill. App. 47; City of Chicago v. McGiven, 78 Ill. 347; City of Quincy v. Barber, 81 Ill. 300; City of Chicago v. Bixby, 34 Ill. 82. They should not have been given.
The evidence being conflicting,- the law should have been accurately stated. Ill. Central R. R. Co. v. Maffit, 67 Ill. 431; Village of Warren v. Wright, 3 Ill. App. 602.
It is also insisted by the appellant that the damages are excessive. We do not feel called upon to examine or discuss that question, as this case will have to be re-tried. For the errors indicated, the judgment is reversed and cause remanded, and venire de novo awarded. •
Reversed, and remanded.