This was an action on the case for alleged injuries received from a fall upon a sidewalk in the appellant city, called 5tli avenue, between 25th and 26th streets, which the city was bound to keep in repair, which injuries to appellee, it is claimed, arose in consequence of the negligence of the city in not keeping the planks, constituting in part the sidewalk in question, properly nailed to the stringers, and suffering the planks to be and remain loose, so that in passing over the walk with her husband on the 1st of January, 1890, using due care, the loose plank flew up, caught appellee’s foot, and she unavoidably fell and seriously injured her arm and shoulder, for which injuries, and the pain and suffering and loss of time consequent thereon, with the cost and expenses in her endeavor to effect a cure, this suit is brought.
The case was heard by a jury in the court below, who returned a verdict for the appellee for 8700 damages, upon which, after overruling a motion for a new trial, the court entered judgment, to reverse which this writ of error is prosecuted. The points specially insisted upon for the reversal of the judgment below, are, first, that the verdict of the jury is not supported by the weight of the evidence; second, that, instruction number three, given for the appellee, is erroneous, in that it assumes that the city was negligent.
First. The rule of law applicable to this contention is so well settled and so generally understood as to render citation of authorities or discussion needless.
Perhaps as favorable a statement of the general rule of law for the appellant as can be deduced from the adjudications in this State is, that the verdict of a jury will not be set aside when the evidence is conflicting, even though it may seem to he against the weight of the evidence, unless it is apparent that the jury have been actuated by passion or prejudice. Miller v. Balthasser, 78 Ill. 306.
It is apparent, as this record shows affirmatively, if the testi mony of Mrs. Deis, Mr. Brigham, Mr. Pierce, Mr. Deis and Dr. Casler, Policeman Cary and Mrs. Dockle are to be believed, that appellee fell upon the sidewalk on the street of the appellant city, while using due care, and in consequence of the negligence of the city in not keeping the sidewalk at the place and time of the injury in reasonable repair, in the way and manner as stated and set forth in appellee’s declaration, and that such defect had existed for such a length of time that the city should be presumed to have had notice of its defective condition; that such walk was old and decayed, and had been in that condition for along time prior to the injury, and that the injuries to the appellee were of a permanent and serious character, and occasioned no inconsiderable loss of time and expense in attempting to effect a cure, as well as pain suffered in consequence of the injury, and that the street and sidewalk on which the injury occurred was one of the principal streets and walks in the city; that the manner of receiving the injury was by the foot of the appellee being caught under a loose plank in the walk, throwing her down with some force upon her left arm and shoulder, and that the walk was soon thereafter taken up by the city and another substituted in its place.
To overcome this evidence appellant introduced Dr. Barth, Mr. Meenan, Mrs. Fitsgerald, Mrs. Connell and Mr. Brenan, all of which latter evidence was of a negative character, substantially.
In view of this evidence we can not say the jury were not fully warranted in the finding, as by the verdict rendered. Much less can we say they were apparently influenced by passion or prejudice in such finding. We think the decided weight of the testimony supports the verdict.
Second. Appellee’s instruction No. 3, complained of, is not obnoxious to the criticism upon it, by appellant’s counsel.
It is based upon a hypothesis fully warranted by the evidence in the case, and we think the objection thereto is not well taken. In no legal sense did that instruction assume the negligence of the city. It is urged that appellant’s 11th and 13th instructions were improperly refused, but the same principle therein contained, was clearly contained in others given for the appellant, viz., the 5th, 6th, 7th, 8th, 9th and 10th, and there could be no need for repetition, and hence no error in the refusal thereof.
It is contended that the court erred in admitting the husband of appellee to testify in her behalf over appellant’s objection thereto. It is settled in this State that the right of action for personal injuries to the wife is property—her property; she alone must sue for the recovery of damages for such "injuries, and her husband can not without her consent release them. C.,B. & Q. Ry. Co. v. Dunn, 52 Ill. 260; Martin v. Robson, 65 Ill. 137; Chicago v. Spear, Ex’x, 66 Ill. 154; Hennies et al. v. Vogel et al., 66 Ill. 401; C., B. & Q. Ry. Co. v. Dickson, 67 Ill. 122. Sec. 5, of Chap. 51, R. S. Ill., provides, “ That no husband or wife shall by virtue of Sec. 1 of this act, be rendered competent to testify for or against each other, * * * except in cases where the litigation concerns the separate property of the wife, or the wife would be plaintiff or defendant if unmarried, etc.” In the case at bar it is seen she must be plaintiff, whether she is married or unmarried, and the litigation, as we have shown, concerns the separate property of the wife. Mueller v. Rebhan 94 Ill. 148; C., B. & Q. Ry. Co. v. Dunn, supra.
The husband of appellee was therefore a competent witness for appellee, and the court below did not err in so holding.
Upon the whole record, which we have carefully examined, we think the evidence fully supported the verdict, the damages were not excessive, and that the trial court did not err in the admission or rejection of evidence on the trial, or in giving or refusal of instruction, and finding no reversible error in this record, the judgment of the trial court must be affirmed.
tJudgment affirmed.