This was an action on the case brought by the appellee to recover damages from the appellant for negligence on its part in neglecting to keep one of the sidewalks of the city free from an unreasonable and dangerous accumulation of ice and snow by means of which, while in the exercise of ordinary care, she slipped and fell, breaking her leg in the fall.
The cause was tried by a jury which found appellant guilty and assessed appellee’s damages at $300, upon which verdict judgment was rendered.
The main cause urged by the appellant for reversal is that the appellee’s instructions were erroneous in that they did not conform to the rule of law as laid down by this court in the City of Aurora v. Parks, 21 Ill. App. 462, in which case it was held that before a city can be made liable for damages occasioned by persons falling on the sidewalk by reason of the accumulation of ice and snow such accumulation must amount vo an obstruction. In that opinion this court followed various decisions of the courts of last resort of other States, as well as the Supreme Court of this State, cited in that opinion.
We are of the opinion that the appellant is not in a position to take advantage of any failure in the instructions in question to conform to the rule announced in the Parks case, if they do fail, for various reasons. First, the evidence very clearly shows that there was a very serious obstruction on the sidewalk in question which was one of the most frequented streets in the city, caused by the accumulation of snow and ice in ridges in the center of a narrow sidewalk from eight to eighteen inches in height, there being very little reliable testimony to the contrary. The jury, as we think, could not have reasonably found otherwise.
Secondly, the instructions given at the instance of the appellant as well as for appellee agree; and by them the jury were plainly told that if the sidewalk was rendered unreasonably unsafe by such accumulation of ice and snow, and the city had notice, then, if the accident was occasioned thereby, that would be sufficient to render the city liable, if the appellee was in the exercise of reasonable care for her own safety. The point now made as to the law seems to be an afterthought. The appellant can not be allowed to ask the court on the trial to instruct upon one theory of the law and, when it fails on the trial, appeal to this court and assign for error the giving of similar instructions on the part of appellee.
That would be to trifle with justice. The question in issue being the dangerous condition of the sidewalk occasioned by the accumulation of ice and snow, the appellant by its second instruction procured the law to be laid down by the court to the jury as follows: “ Its (the city’s) duty is only to use reasonable care to see that its sidewalks are reasonably safe for persons exercising proper care and caution in using them.” ,
By the third of appellant’s instructions the jury were told that “obstructions or defects in the sidewalk of a city to znake the corporations liable for an injury occasioned thereby must be of such a nature that they are in themselves dangerous, or such that a person exercising proper care and pi udence can not avoid danger or injury in passing them.”
The fourth of appellant’s instructions recognizes the same rule by implication. The instructions given for appellee only laid down the same rule in substance although it may be more clearly and in different words.
Next we come to the question of the ruling of the court on admission and exclusion of evidence. While the admission of evidence that the sidewalk where the accident happened was cleared off after the accident, might have been improper and incompetent to show that the city recognized its dangerous condition, if such was its purpose, we do not consider it, even if error, to be of sufficient gravity to cause reversal. Nor was it error to refuse to allow the appellant to show the extent of its sidewalks.
If the city was large and had a great extent of sidewalks it should be reasonably supplied with appliances commensurate with the work to be done in clearing them of snow. It would appear also that the time during which the sidewalk was obstructed with ice and snow was ample for the city to have cleaned it off.
The evidence allowed by the court in behalf of the appellee that the city was provided with appliances to remove snow speedily was in excess of what was necessary under the circumstances and could do no harm. If the obstructions were dangerous, then we think it clearly appeared that the city had ample time to remove them and the jury was justified in so finding.
We do not think it was error to admit the evidence of George M. Blake, who had been the attorney of appellant on the trial of this cause at a former term of court. Hart, the street commissioner, had been called as a witness by appellant, and testified that he had caused the sidewalk in question to be cleared of ice and snow January 24, 1886. Blake was called to show that Hart, at the former trial, had been consulted by him in reference to the clearing the sidewalk and that when questioned he failed to state to Blake that the sidewalk had been cleared. That Hart appeared to know nothing about when the sidewalk had been cleared. That he did not know whether the sidewalk had been cleared or not. That he, Hart, then examined his time book and reported to Blake that the time book showed that the men had worked, but where they had worked or what they did the book did not show.
This evidence was given in for the purpose of impeaching the witness Hart and we can not regard this knowledge obtained by Blake from Hart as privileged. The evidence was of a negative character and personal to Hart and only bore on his veracity. It was not evidence tending to show by any knowledge obtained by Blake that the city did not clear the sidewalk. In Granger v. Warrington, 3 Gihn. 299, it was decided that communications made by a party to a State’s Attorney in reference to a proposed criminal prosecution were not privileged, but might be given in evidence by such State’s Attorney against such party in a civil action in which he was a party. In that case the following citation was quoted with approval: “ But the privilege of exemption from testifying to facts actually known to the witness is in contravention to the general rule of law. It is therefore to be watched with some strictness and is not to be extended beyond the limits of the principle of policy upon which it is based. It is extended to no other person than an advocate or legal adviser, and those persons whose intervention is strictly necessary to enable the client and attorney to communicate with each other as an interpreter, agent, or attorney’s clerk. And this principle is confined to counsel and attorneys when applied to as such and when acting in that capacity.” Wilson v. Russell, 4 T. R. 753. Hnder this rule we think that communications made by: a street commissioner to an attorney for a municipal corporation on matters of this kind should not be regarded as communications made by the city to its attorney in confidence.
It is true, Blake leazvned these facts when he was acting as corporation counsel, yet they were not communications made by the city to its attorney by virtue of the relationship of client and attorney. Hart was only a witness and made the statement as a witness and not as agent of the city. We are of the opinion it would clearly be without the reason of the rule to regard these as privileged communications. Blake is only called on to state what he has 1 earned or failed to learn from Hart, a witness, which tends to contradict and impeach him upon his being offered as a witness by the city and swearing to a different state of facts.
Blake was not the attorney of Hart, nor was Hart the agent of the city to make the communications. Seeing no error in the record of sufficient importance to reverse the judgment it is therefore affirmed.
Judgment affirmed.