ERROR to the Circuit Court for the Northern District of Illinois.
This was an action on the case brought by the city of Chicago against Robbins. The declaration alleged that the city had by law exclusive control over the public streets and was bound to protect them from encroachment and injury. That Robbins owned a lot on the corner of Wells and Water Streets, and wrongfully dug, opened, and made an area in the sidewalk adjoining, and left it so unguarded that one Woodbury fell into it and was severely injured; that Woodbury had recovered, for his injuries, $15,000 damages against the city, which sum the city had paid, and which, though the city had been primarily liable for it, Robbins was bound to refund. Plea, the general issue.
Robbins owning an unimproved lot, at the southeast corner of Wells and Water Streets, in Chicago, contracted, in February, 1856, with one Button to build a storehouse on it; Button's principal work being the masonry, and there being seven different contractors on the building in all, on different parts of it. The whole was under charge of an architect appointed by Robbins, the duty of which person was to see that the work was done according to contract.
The city had, in 1855, ordered the grade of Wells Street to be raised about seven feet and the carriage-way to be filled with earth. This improvement-as Robbins wished to have vaults to his new store-rendered necessary a curb-wall from the natural surface of the ground to the height of the grade. By its position-about sixteen feet from the building-this wall would give, so far as the space beside it was covered over (an extent of about eleven feet), a vault for storage, and where open-as five feet would be left by another or area-wall-an area immediately adjoining the edifice, by means of which light and air would be given to it. Encroachments on the street to the width of five feet were apparently allowable by the city ordinance.
In making this area there was some excavation or digging away of the natural soil, but the testimony of Button tended to show that what earth was thus removed was replaced by sand and other material used in flooring the space, and that the principal space was procured by the raising of the street and the erection of the wall and the edifice beside it. The depth of the space was seven or eight feet.
By his contract, Button was to be liable for any violation of the city ordinances in obstructing the sidewalks or for accidents arising therefrom; but there was no specific provision that he or any other contractor should provide proper lights or guards. There were lamps at a bridge not very far off, and one at an alley sixty-four feet from the area.
Possession of the ground was given to Button on the 1st of April, 1856, and the excavation and walls making the space were in effect raised some time during the spring; the city about the same time filling the carriage-way with earth.
Button, by the terms of his contract, was to finish his work by the 1st September, 1856, but he did not in fact complete it till February, 1857. However, the sidewalk-eleven feet-which was made by broad flagging stones placed over the two walls, was finished in the autumn; the area, which was intended to be covered with iron grating, and which when so covered would have been thrown, in a manner, into the sidewalk, not being as yet so covered.
In all respects, however, except this protection of grating to passers by, the area, it seemed, was substantially finished and ready to be covered by grating before the 19th of December. With the grating Button had nothing to do; that being a matter, with the rest of the iron-work of the building, contracted for by another person.
From the time that the area was made until the grating was put there, it was covered, as the whole space, before the sidewalk was completed, by laying flagging, had been, more or less by joists, the covering being sometimes very slight, and the area-which ran along the whole side of the building, one hundred and fifty feet-sometimes wholly uncovered.
Robbins was in Chicago, and during the summer and early autumn occasionally at the building. Later in the season, when ice was on the sidewalk, the city superintendent spoke to him about the dangerous condition of the area; suggested a mode in which, at a small cost, it could be made safe; telling him, at the same time, that if it happened any time to be sleety, and people should be passing by his building rapidly, and the covering was not attended to, smoebody would be hurt-'a neck or a leg broke'-and the city have damages to pay.