City of Bloomington v. Perdue

1. Instruction — repeating. ' There is no error in refusing an instruction, where another one given fully expresses the law expressed in the one refused. 2. Negligence — standard of care on part of plaintiff. In an action by a young lady against a city, to recover damages for an injury based upon the negligence of the defendant in not keeping a sidewalk in repair, involving the question of the plaintiff’s freedom from negligence, instructions which do not refer as a standard of caution to “ what ordinary young ladies would do,” but to the conduct of “an ordinarily prudent person,” and of “a woman of common or ordinary prudence,” are not faulty in respect to the standard referred to. 3. Same — evidence as tending to disprove want of due care and caution. In a suit by a young lady against a city to recover damages for an injury to the uterus, caused by a fall from a defective sidewalk, the defendant proved that she did not take proper care of herself after the injury, by remaining quiet, as showing negligence on her part increasing the injury. On cross-examination of the physicians called by the defence, the plaintiff proved, over defendant’s objection, tha{, an unmarried woman, not acquainted with the anatomy of the injured part, could not be expected to act as promptly and intelligently as one understanding it, or as a medical man would, and that it was a common thing for women to suffer from a displacement or injury of the organ spoken of, without themselves knowing the trouble: Held., that there was no error in allowing the evidence. 4. Municipal inbebtebness — in excess of constitutional limitation — not applicable to liability for torts. In an action on the case against a city to recover for a personal injury growing out of negligence on the part of the city, it can not raise the question that it is already indebted to an amount in excess of the constitutional limitation.

Appeal from the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of McLean county; the Hon. N. J. Pillsbury, Judge, presiding. i This was an action on the case, brought by Amanda Perdue against the city of Bloomington, for damages for an injury claimed to have been received from a defective sidewalk. The plaintiff was a young woman twenty-eight years of age. At the time of the injury she was living at the ladies’ boarding hall, and attending school at the Wesleyan. She, on her way home from school in company with another lady, while on the sidewalk, met with the accident. It seems the stringers were decayed, so as not to hold the nails in the boards, and her companion stepping on a board in the walk, tipped it up so as to trip her, and. she fell. The fall strained the ligaments that support the uterus, and the plaintiff claimed that she was thereby seriously injured. The proof showed that the injury was severe, causing intense pain and suffering, and that the sidewalk had been out of repair for some time before the injury, although there was evidence that some of the city officers had notice of the same. On the trial, the city in defence called physicians, who testified that a young lady receiving an injury as described by the plaintiff should have taken immediate rest and medical treatment, and that it was imprudent and improper in the plaintiff to go to school ón the next day after the injury, and on the second day after to go into the kitchen and bake pies for an hour or so. On the cross-examination it was elicited, against the defendant’s objection, that an unmarried woman, not acquainted with the anatomy of the womb, could not b& expected to act as promptly and intelligently after the fall that resulted in the injury of the uterus, as though she understood it, or as a medical man would, and that it was a common thing for women to suffer from displacement or injury of the organ spoken of, without themselves knowing the trouble. Thecourt refused to give the defendant’s fourth instruction, which is as follows: “The court instructs the jury, on behalf of the defendant, that before the plaintiff can recover in this case, the law requires her to show, by the evidence, that at the time she sustained the injury complained of she was exercising ordinary care and caution, and if you believe, from the evidence, that the plaintiff, by the exercise of such care and caution, would have avoided the danger, you should find for the defendant.” The court, at the instance of the defendant, gave the following instruction, referred to in the opinion as Ho. 6-: “The court instructs the jury, on the part of the defendant, that the city of Bloomington is not liable for every accident or injury that happens or occurs on the streets of said city, but only in cases where the evidence shows the party seeking to recover has exercised such care and prudence as a reasonable, careful and prudent person would have used in the same circumstances, and that the city has been negligent.” The jury found for the plaintiff, in the sum of $3500, for which judgment was rendered, the court refusing a motion for a new trial. The defendant took the case by appeal to the Appellate Court for the Third District, where the judgment was affirmed, and the case is brought here by appeal from the Appellate Court.