City of Chicago v. Gage.

tion mentioned was part and parcel. And that neither the $10,000, nor any part thereof, was paid to or received by him, the said Girault.

The plea was held bad on general demurrer. The court say: "The condition of the bond is, that Girault shall faithfully execute and discharge the duties of his office as a receiver of the public moneys. The defendants have bound themselves for the fulfillment of these duties; and are of course responsible for the very fraud committed upon the government by that officer, which is sought to be set up here in bar of the action on the bond.

"As Girault would not be allowed to set up his own fraud for the purpose of disproving the evidence of his indebtedness, we do not see but that, upon the same principle, they should be estopped from setting it up as committed by one for whose fidelity they have become responsible. And see Morley v. Town of Metamora, 78 Ill. 394; s. c., 20 Am. Rep. 266; Evans v. Keeland, 9 Ala. 42.

The official books, monthly statements or accounts and annual reports kept, made and rendered by Gage, during his second term, abundantly show a liability to the amount of the recovery in this case; and holding them to be of the conclusive character which we do, against both Gage and his sureties, it is needless to consider whether the books of Gage for the first term, showing a balance in his hands at the close of his first term, were properly received in evidence, or whether proof that the balance thus appearing was not at that time actually in Gage's hands, was improperly excluded. If there was error in such respects, it would be a harmless one, as such proof of any balance at that time was entirely superfluous and unimportant, in view of the other plenary evidence which there is in the case of the amount of the defendant's liability.

The question as to the balance shown by the record in Gage's hands December 16, 1873, being loaned out for the benefit of the city, is liable to the further objection that its tendency, if answered affirmatively, would be to prove a breach of the bond in that respect. Under the charter the treasurer was required "to keep safely without loaning or using" the city money, and was permitted to deposit it at interest only by the authority of the common council manifested by ordinance or resolution, and in the manner prescribed by the charter. There is no pretense that such authority was ever given; on the contrary, there is evidence tending to show it was not given.

City of Chicago v. Gage.

We find no material error in the ruling of the Circuit Court upon the admission or exclusion of evidence.

The judgment of the Appellate Court is reversed and the cause remanded, with directions to enter a judgment of affirmance of the judgment of the Circuit Court.

DICKEY, J., took no part in the decision.

VOL. XXXV-26

Judgment reversed.

CASES

IN THE

SUPREME COURT.

or

INDIANA.

BRUKER V. TOWN OF COVINGTON.

(69 Ind. 33.)

Negligence-contributory — defect in sidewalk.

One who attempts in the dark to pass an open cellar-way in a sidewalk, know ing, but for the time forgetting its existence, is guilty of such contributory negligence as will defeat his recovery for injuries sustained by falling into

it.*

A

CTION of negligence for personal injury. The opinion states the facts. The defendant had judgment below.

W. A. Tipton, S. F. Wood, L. Nebeker and S. M. Cambern, for appellant.

H. H. Dochterman and T. L. Stillwell, for appellee.

NIBLACK, J. The complaint in this case charged that prior to the 7th day of March, 1877, a deep and dangerous cellar-way or hole had been excavated in the sidewalk on the north side of Lib

* See King. Thompson (87 Penn. St. 365), 30 Am. Rep. 364. Compare Evans v. City of Utica (69 N. Y. 66), 25 Am. Rep. 165.

Bruker v. Town of Covington.

erty street, a public street within the limits, and under the jurisdiction and control of the defendant, the town of Covington; that for a long time previous to and up to and including that time, such cellar-way or hole had been permitted to remain open and exposed, and without protection or notice to travellers along and upon said street, of all which the defendant had notice; that on the night of the said 7th day of March, 1877, the plaintiff, John Bruker, was lawfully walking along and upon said sidewalk, unaware of danger, and without any fault or negligence on his part was accidently precipitated into said cellar-way or hole, whereby he was greatly injured, and his right wrist had become stiffened and permanently disabled.

The defendant answered in general denial. A trial by a jury; verdict for the defendant; motion for a new trial; and judgment on the verdict.

On the trial there was evidence tending to show that the excavation complained of was an old cellar-way to a building near by, and ran parallel with the sidewalk; that there was a stone wall about eighteen inches high between the cellar-way and the sidewalk, except at the east end of the cellar-way, where there had been some steps; that the place where the steps had been was filled up with cinders and ashes even with the sidewalk.

The plaintiff, among other things, testified that he had resided in the town of Covington since the 4th day of July preceding his injury; that he had seen the cellar way once or twice; that he had passed along the sidewalk adjoining it two or three times without observing it very closely; that he had passed along the opposite side of the street quite frequently; that he had gone on the opposite side because he regarded the sidewalk passing the cellar way as a bad sidewalk; that at the time of the accident he did not have the cellar way in his mind; that the night on which the accident occurred was very dark.

Other witnesses testified to having frequently seen the plaintiff on the street near the cellar way.

The court instructed the jury as follows:

"1st. If the plaintiff knew the opening or cellar way was in the sidewalk, and he attempted to pass the place where it was, when, in consequence of the darkness of the night, he could not see it, he has no legal reason to complain of the injury he received on account of the fact that the opening or cellar way was there. In such cases

Bruker v. Town of Covington.

he must be treated as having taken the risk upon himself, and this too although at the time the fact of the existence of the opening was not present to the plaintiff's mind.

"2. If the cellar way was an open one, and the plaintiff knew its location, and that it was an open one in the sidewalk, he must be held to know that there was danger of falling in it when passing the place in a dark night, and he cannot recover, if, with knowledge of the existence of the opening described in the complaint, he attempted to pass it in a dark night, and in such attempt was injured by falling into it."

The giving of these instructions was assigned as one of the causes for a new trial, and the objections urged to them by the appellant constitute the only questions discussed by him in his argument in this court.

The appellant objects to the instructions complained of because, First. He insists that his failure to remember the existence of the cellar way did not amount to contributory negligence;

Second. To make a disregard of his previous knowledge contributory negligence, it was necessary to show that he had also knowledge of the dangerous condition of the cellar way;

1

Third. The obstruction being only a partial one, the doctrine of the instructions does not apply, because it takes the question of negligence from the jury. A distinction exists between a total obstruction and only a partial one. In case of total obstruction, the court is allowed to pronounce upon the question of negligence, whereas, when a partial obstruction only is shown, the question of negligence is to be determined by the jury.

In the case of President, etc., of Mt. Vernon v. Desouchett, 2 Ind. 586, it was in substance decided, that if a person knows there is an obstruction in a street, and he attempts to pass the place, when, in consequence of the darkness of the night, or other hindering cause, he cannot see the obstruction and runs upon it, he has no reason to complain of the injury he may sustain. In such a case he takes the risk on himself. In other words, that a disregard of the knowledge of the existence of such an obstruction, by which an injury results, amounts to contributory negligence.

That case has been approved in principle and followed by this court in numerous cases, and the rule recognized by it as to contributory negligence may be regarded as the settled law of this State. Toledo, etc., Ry. Co. v. Goddard, 25 Ind. 185; Riest v. City of