This was a suit by the plaintiff in error to recover damages for injuries received on account of the alleged defective condition of a sidewalk in the defendant village.
The alleged facts, which seem to be sustained by the evidence, are, in brief, that on the morning of July 1, 1889, plaintiff in error was traveling over a sidewalk in the defend ant village, which it was bound to keep in repair, from the business portion thereof to his dwelling place situate therein, accompanied by his two daughters, the one six and the other about thirteen years of age, plaintiff in error carrying in one hand a scythe and hoe and in the other a package of coffee, the elder daughter walking by his side and the younger a few steps in advance. Hear the steps of the United Brethren Church in that village, the elder daughter—walking on the outside—stepped on the end of a loose board or plank, of which the sidewalk was in part composed, which flew up, tripped the plaintiff in error and he fell upon the scythe, splitting his left hand open between the fingers nearly to the wrist, by which injury he is permanently disabled. The fact as to the injury, the extent and manner of its occurrence, is conceded. Ho claim is made that plaintiff in error was negligent, or that he in any way contributed to the resulting injury.
The only question involved in this contention now is, was the defendant in error guilty of negligence in not keeping its sidewalk at the time and place when the injury occurred in a reasonably safe condition for the use of a person traveling upon it, using due care, and if the same was not in such repair, had defendant in error actual or constructive notice (by lapse of time or otherwise) of such defect.
If an affirmative answer be given, then the judgment of the Circuit Court should be reversed; if in the negative, that judgment must be affirmed.
In the Circuit Court a verdict and judgment was rendered against the plaintiff in error. He brings the suit to this court by writ of error, and complains that the trial court erred in refusing evidence offered on behalf of plaintiff in error, in modifying the instructions offered by plaintiff in error, and in giving erroneous instructions to the jury in behalf of the defendant in error, in excluding proper evidence offered by plaintiff in error and in refusing a new trial. The controversy in the trial court was purely one of fact, sharply contested on both sides; the evidence was conflicting, and consequently it became important that the jury should have been accurately instructed as to the law of the case.
It might not be proper for us to discuss in detail the testimony in this record, in the view we take of the case, but a mere reference to some of the established or undisputed facts may be allowed, to the, better understanding and applications of the principles hereafter stated. The walk in question has been in use for a period of thirteen or fourteen years, and' is situate upon one of the main streets of the village of Alexis. It was originally constructed of two-inch pine plank placed upon and nailed to pine wood stringers two by six inches, laid upon the ground.
Some six or seven years prior to the injury the walk had been relaid by the village authorities; in so doing some new material and some of that taken from the old walk was used, planks as well as stringers.
The old stringers were then more or less decayed; those then unfit for use were replaced by new ones, but what proportion of the old stringers were used in relaying the walk does not appear. The planks in this walk near where the injury occurred had become loose in consequence of the stringers hot holding the nails, either from decay or use, and the street commissioners of the village, pursuant to its orders, had notice of such defects several times within a few months prior to the injury, and had examined the walk and attempted to and, as they supposed, had repaired such defects by nailing the loose plank down, but without examination of the condition of the stringers to determine whether they were decayed or otherwise. These repairs last mentioned were commenced by one Crossly, acting street commissioner of the village, on the 27tli of April, 1889, who in passing over the walk found several loose plank near where the injury subsequently occurred, and he nailed the loose plank to the stringer, and he testified that the nail did not drive as if the sill or stringer was solid at that time; and he further testified that the cause of the planks being loose was that the nails drew out of the stringers.
About the middle of June, 1889, one McBride, then street commissioner of the village, carefully examined this walk, and then found a number of plank loose near where this injury complained of occurred, and he also nailed the plank down found loose. Again, about ten days thereafter, and shortly prior to the injury, he went over and examined the same walk again, for the purpose of repairs, and then found loose planks in that walk and again nailed them down, and he says the occasion of the planks being loose was that the stringers did not hold the nails. Six or seven other witnesses testified that they passed over the walk in question varying from one day to six weeks prior to the injury; that they saw loose planks in the immediate vicinity of where the injury occurred-some of these witnesses were tripped by the loose plank in the walk as they testify.
To rebut this, much testimony of facts and circumstances was heard, a large part being negative in character.
The rule of law is, that notice of the unsafe condition of a sidewalk may be implied, if the defects complained of have existed for such a length of time that the municipal authorities of the city or village, or any of its officers or agents^ whose duty it was to give notice thereof to the city, by the exercise of reasonable care and diligence, might have known of such defect. Hearn v. Chicago, 20 Ill. App. 249; Sheridan v. Hibbard, 19 Ill. App. 442; Aurora v. Dale, 90 Ill. 46; Aurora v. Hillman, 90 Ill. 61. Nor was it necessary to a recovery that appellee should have had notice of the condition of this particular plank which occasioned the injury. Weisenberg v. Appleton, 26 Wis. 59; Aurora v. Dale, supra. Notice of the condition of the walk and the soundness or unsoundness of its materials to the street commissioners was notice to the village. Fuller v. Jackson, 46 N. W. R. 721; Wheaton v. Hadley, 30 Ill. App. 564.
The case last cited is in many of its facts similar to the case at bar.
The repairs being made by the village, of the walk in question, it was bound to take notice of the character of the repairs and the condition of the walk when so repaired? whether safe or dangerous. Chicago v. Brophy, 79 Ill. 277; Chicago v. Herz, 87 Ill. 541.
Neither actual nor constructive notic e is required in cases of defective construction, whether such defects exist in method or material. Village of Mansfield v. Moore, 21 Ill. App. 326; Wheaton v. Hadley, supra. We think the trial court erred in confining the plaintiff’s evidence to that particular part of the walk in question where the injury occurred. Weisenberg v. Appleton, 26 Wis. 56; Sheridan v. Hibbard, supra; McLeansboro v. Lay, 29 Ill. App. 478; Aurora v. Hillman, supra; Chase v. Chicago, 20 Ill. App. 274; Shaw v. Village of Sun Prairie, 42 N. W. R. (Wis.) 271. The trial court erred, we think also, in not allowing the witness, Charles Clute, called by plaintiff in error, to testify as to notice by the village authorities of the bad condition of the walk in question, and its need of new material for its repair in 1888. It was not so remote .under the evidence as to warrant the court in excluding it from the jury. Chicago v. Bixby, 84 Ill. 85; Chicago v. Herz, supra; Chicago v. Crooker, 2 Ill. App. 279; Aurora v. Dale, 90 Ill. 48; Aurora v. Hillman, 90 Ill. 64.
We are also of the opinion that the trial court erred in modifying plaintiff in error’s instructions numbers two, five, seven, nine and fifteen, and giving the same to the jury as modified.
The law is, as we understand it, that municipalities are required to use reasonable diligence and care to keep its sidewalks in a reasonably safe condition.
The instructions as modified informed the jury that such walks were required to be kept in ordinarily good and safe condition. The distinction between what is reasonable and what is customary must be apparent.
We think the trial court was in error in its modification of plaintiff in error’s instructions numbers thirteen and fourteen as modified and read to the jury. We think they were misleading. We are also of the opinion that the trial court erred in reading and giving to the jury the defendant in error’s instructions numbers eight, nine and ten, and that the same were misleading.
We have carefully examined this record in the light of the able arguments of the learned counsel for the respective parties, and we are clearly of the opinion that the verdict in this case can not be supported by the evidence in this record.
The judgment of the Circuit Court is therefore reversed, and the cause is remanded for further proceedings not inconsistent with the views above expressed.
Reversed and remanded.