The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1878-01-19
Two Sidewalk Cases,

On the 18th of February, 1916, Mary +. Fay, OF
the city Of Mendoza, in this county, about I
O'Clock r. NJ, while passing over a side walk on
Main street. fell from the walk on the corner Of
the street and injured her forearm. 1t seems
that at the corner mentioned, corner Of Main and
Sth streets, were two or three steps leading up 10
the walk unprotected either by railing or light,
and though the appellee as she alleges cndcavor-
ed in the dark to find them by carefully feeling
along the edge Of the walk with her hands and
feet, she fell Off. She brought suit in the La
Sale Circuit Court, setting up the facts and the
alleging neglect on the part of the city and oh.
tanned Judgment for $500 damages.
The defence set up was that the appellee was
perfectly familiar with the walk, and did not use
due diligence upon this occasion. Upon the APP
peal TO the Appellate Court appellant assigned
for error the giving 10 the jury Of the second in
lstructiOn modified so to contain the following:
'If, however, there is no proof of a want Of care
on the part of the plaintiff, it should be presum-
ed that she was careful rather than that she was
careless"
Judge Pillsbury on Wednesday last announced
the decision of the Court, reversing and remand
ing the cause In his written opinion he says;
"Thc authorities sufficiently sustain
the doctrine that whether the plain
tiff is in the exercise of due care at the time of
the injury is purely question Of fact to be found
by the jury from all the evidence, aud not pre-
sumption of law, whatever fact is presumed 10y
the law TO exist in given ease is IA The absence
Of proof overcoming such legal presumption, cs-
Itablishcd, and the jury can find the fact from
such presumption alone. The party, therefore,
against whom such presumption arises, must
overcome the same by evidence or the presumed
fact will be found against him, or, If the evidence
/ be equally balanced, the presumption prevails,
and the like result must follow. Such was the
Icondition Of the defendant below under the in.
strction III question, and while tits true that the
Jury were told in the other instructions that they
must find that the plaintiff was exercising due
care at the time of injury, yet they were author
lied by this instruction 10 find the existence OF
such fact from the legal presumption alone, in
the absence of proof OF want Of care upon her
part, thereby casting the burden Of proof upon
dcfendent Of overcoming presumption
! We see no other error in the record,
but for the error indicated the judgment must b,
reversed and cause rcmandcd." Judge Leland
took no part in the decision.
THE sTREATog ,ASE.
/ On the 10Th Of September, 1874, between lOanl
I II O'Clock =. VI, Henry Hull, a miner, fell into
hole in n sidewalk at Strcator To recover. he
brought suit in La Sale Circuit Court, and oh
tanned judgment for 5000. The facts alleged
are that on the night in question Mr.. Hull left
his home, and in company with man named
Perry went down town to billiards saloon, pass
ling, on their walk, over the place where Hull AZ
forwards was injured, noticing and commenting
on the hole The hole was near the saloon; tn,
walk was rsisel some two or three feet above IA,
ground. and tht hole caused by the removal Of q