This was an action on the case by appellee against appellant for injuries sustained by reason of a defective sidewalk. The appellee recovered a verdict for $4,800, of which she was, by the court, required to remit $2,300, and judgment was entered for $2,500, from which an appeal is prosecuted to this court. Various errors are assigned, but we shall not notice all in detail, and will refer only to the more important features.of the case. It is urged with great apparent earnestness that the plaintiff knew of the defect and was guilty of such want of ordinary care as to prevent recovery. She admits that she did know of it, and that she was carefully trying to avoid it, when, in spite of her care, she stepped into it, but that in the darkness she could not tell exactly where she was. It is urged that knowing the danger she had no right to undertake to pass over the place in the night time, and that it was her duty to take another route whereby she might have gone more safely. There was another route but it was very indirect, and was, according to a special finding of the jury, 531 feet further. Assuming it was safe, and that she might have gone that way, it does not follow she was required to do so.
The defect in question was quite a small break or hole in the walk and she might well suppose she could avoid it. The question was for the jury whether, under the circumstances, she used ordinary care, and considering it all, we have no disposition to disagree with the conclusion arrived at. It is not per se negligence for one to attempt to pass over a sidewalk known to be out of repair, though of course more care is required than if there was no notice of the defective condition. City of Joliet v. Conway, 17 Ill. App. 587; Ellis v. City of Peru, 23 Ill. App. 35; City of Aurora v. Dale, 90 Ill. 47; City of Bloomington v. Chamberlain, 104 Ill. 273; Dillon, Municipal Corporations, Sec. 1026, Note 3. Many authorities are cited by counsel in support of his position on this point, and no doubt the facts in the particular cases abundantly justified the judicial expressions quoted. In this case the question is whether the court can say that such action of the plaintiff was so negligent as to require the finding of the jury to he set aside, and we have no hesitation in giving a negative reply.
The village had notice through its street commissioner, that the walk, was out of order, and it had been in that condition so long that the jury might properly infer notice. It is urged the damages are excessive. The verdict returned by the jury was deemed too large by the court and a remittitur of nearly one-half was required. This practice rests upon a long line of precedents in this State, and where the final judgment is not unreasonably great the error in the verdict is held cured. Considering the nature of the injury shown by the evidence we are not prepared to say the judgment is too large. The injury was severe, involving great suffering, expense and loss of time, and is probably not more than recompensed by the sum allowed.
It is objected the court permitted evidence that the board was rotten and that there were other holes in the walk than the one stepped into, and that this was error, because no such precise condition was described in the declaration. It was competent to prove the condition of the walk, and it was not necessary that the declaration should set out and describe all the imperfections that existed. There was such averment as would include the defect causing the injury, and it was not error to permit a full description of the walk. Other objections to the admission of evidence need not be referred to, as we consider them immaterial. Much of the argument is occupied by criticism of the instructions given for plaintiff and the action of the court as to those refused or modified for defendant. The court gave seventeen instructions for plaintiff and some twenty or more for the defendant.
It is therefore apparent that the volume was enough. Too many were given, but we shall not undertake to follow counsel through the consideration of them separately. After careful reading of the entire series 'we find no substantial cause of complaint in those given for plaintiff, and with respect to those refused for defendant it suffices to say that so much of them as was proper to be given will be found in those that were given.
The modifications objected to were not erroneous in substance, and regarding the whole body of those given for the defendant we think there is no just reason to object. The law was presented as favorably for defendant as it had a right to ask, if not more so.
As we regard the case, the important and controlling question is whether the plaintiff was guilty of a want of ordinary care in going upon the walk at the time she did, and with the knowledge she had. On this it all depends. The point is pivotal, and if, as to this, the jury were correctly instructed, we think the judgment must not be disturbed. In our view of the law the jury were well advised.as to this and other vital features of the case.
The special findings seem to consist with the general verdict, and in view of the great mass of evidence in the record it may be presumed the case was as fully presented, on the facts, as it ever can be.
The judgmént will be affirmed.
Judgment affirmed.