delivered the opinion of the Court.
The points made by appellant in the argument, are: 1. That the judgment is not sustained by the evidence. 2. That instructions 1, 3, 4 and 10, given for the appellee, are erroneous. There is no complaint that the verdict was excessive or that the appellee did not sustain serious injury. Under the first head, it is claimed that appellee should have taken the old crossing, fourteen feet east of the new one, and which she reached in passing over Chestnut street before she reached the new crossing. As shown by the statement of facts, she was a stranger in the city, and had never been on that street before. Certainly, without some previous knowledge, she could not be expected to pass over a crossing that was fourteen feet out of its proper place; neither did the law require her to be looking for a crossing at such a place. From the point of the old crossing, had she seen it, the evidence does not show that she could have observed that the new crossing was not completed. In fact, we are impressed by the whole evidence that the night was dark, and only general outlines could be observed.
That the city was negligent in leaving the ditch unguarded and unlighted that night, we think is clearly established. It was gross negligence, for which no excuse is offered in this record.
It is also claimed appellee was negligent in allowing herself to be precipitated into the ditch, after stepping off the north end of the new crossing, some fourteen feet distant. There were only two witnesses who testified how that occurred, the appellee and her niece. They in effect say that it was so dark that they did not observe the end of the crossing, and when they stepped off, they were unable to recover themselves until they fell in the ditch. It would appear that they might have recovered themselves before proceeding that distance, yet this court can not say that they should have done so or could have done so.
There is nothing in this record to indicate that they voluntarily precipitated themselves into the ditch. Only a few ste]Ds were required to take them into the ditch after leaving the crossing; what is sometimes termed a “ running fall,” occasioned by a person attempting to gather or recover himself from starting to fall, would carry them that distance.
However, not knowing that there was another crossing at an unusual place in the street, had the appellee walked off the crossing and on the earth for fourteen feet, and then fell in the ditch, it could not be said from anything that appears in this record, that she would have been guilty of contributory negligence. She would have had a right to suppose, being a stranger, that there was not a pit-fall unguarded ahead of her. We are not prepared to say the evidence shows that there was sufficient light for her to have seen it.
The evidence sustains the verdict, which was for the sum of $550.
The first instruction given on behalf of appellee is subject to criticism and does not correctly state the law. The eighth instruction, however, states the law fully and fairly as to the doctrine of comparative negligence, and in the seventh instruction given on behalf of appellee, “gross negligence” is defined in terms of “ intentional wrong,” which is much stronger than was required. J. S. E. Ry. Co. v. Southworth, 135 Ill. 250.
There Avas no error in giving the third instruction for appellee. It Avrns not hypothetical, but stated a proposition of laAV correctly.
The tenth instruction is subject to the criticism of limiting the care required after appellee stepped off the crossing. But as there is no evidence to sIioav that appellee saw the other crossing, or reason assigned Avhy she, a stranger, should have seen it at the place it Avas located, this error was harmless.
The propositions of law asserted by appellant’s counsel are correct: that the city is not an insurer against accidents; that it only has to exercise reasonable care to make and keep its sideAvalks and crossings reasonably safe; that persons in using them, must on their part exercise ordinary care to avoid injury, and that care is measured by the known condition existing, and that where there is slight negligence on the part of the person injured, contributing to the injury, there must be gross negligence on the part of the defendant in comparison thereAvith, in order to justify a recovery. The first instruction violates this last proposition of laAV, yet it is not every error that will reverse Avhere substantial justice has been done.
The evidence is not deemed so conflicting as to the right of recoA’ery as to justify a reversal of this judgment on that ground, especially in view of the seventh and eighth instructions that Avere given for appellant. The judgment will be affirmed.