It is urged that appellant had no notice of the dangerous condition of the walk, and consequently no recovery can be had.
As the work was ordered by appellant and done under Ins daily supervision, the rule as to notice, existing in the case of municipal corporations who are only bound to the exercise of reasonable diligence in ascertaining defects and keeping public streets in a safe condition, has no application to this case. ¡KTor is this one of those instances in which a person having let work to competent contractors, relinquishes to them such entire control over his premises and the work that he is not responsible for injuries the result alone of their negligence. There is no evidence that appellant surrendered control over either the work or his premises.
If it were clearly established that all necessary precautions in the way of coverings, guards, lights, etc., had been placed by appellant, and that the accident had been caused by the removal by some unauthorized hand of some of those coverings, lights or guards, without notice to appellant, and at such a time before the accident that no duty of inspection could be charged upon appellant, then the case would be analogous to that of Martin v. Pettit, 117 N. Y. 118. As it was, the question of appellant’s negligence, if any, and of appellee’s exercise of care, was fairly debatable, and the verdict of the jury can not be said not to be sustained by the evidence.
The witnesses called by the defendant to show the condition of the walk seem to have testified fully as to their knowledge upon that matter, and we do not think the defendant was injured by the refusal of the court to permit them to say whether, if any hoards had been absent so as to leave an open space, they would have noticed it. The answers, if given, would have been mere matters of opinion. Sahlinger v. The People, 102 Ill. 241-248.
There is not the inconsistency suggested between the acquittal of the mason who did the work and the finding of appellant guilty. The mason left the premises on the 22d of November the accident happened December 3d. It was for a negligent condition existing December 3d, that appellant was sued; that this had existed since November 22d, the jury might not have thought. The jury were fairly instructed and the damages are not excessive.
We find no error requiring a reversal of this judgment and it must be affirmed.
Judgment affirmed.