unfit to transact business, and that he remained 474] in such condition *when he left the place of said entertainment with the other guests who were there, and that he left in such condition between one and two o'clock in the morning of the first of January, 1857, and also that the body of said notes was written ir the handwriting of John R. James, who not only frequented the gaming house of the said Steer, but other gaming houses; and then gave evidence to prove that said James was a gam bler by profession. And the defendant then of fered to prove that a note, dated on the first January, 1857, for $1,000, was given by the defendant payable to John Campbell, and indorsed by him, to one Horace L. Johnson, and that said Campbell was a frequenter of the said gaming house, and assisted in dealing for the said Steer. And the plaintiff objected to the said note to John Campbell being admitted in evidence, but the court overruled the objection and admitted the said note to be read in evidence. After the reception of this testimony, of which this court has found no fault, the defendant proposed to add another fact, to wit: "that when the defendant was under the influence of liquor he had a propensity to gamble."

This admission of evidence of a fact, of little consequence in the decision of the case, has been seized upon here and treated as the only fact in the case, and not a circumstance, which, unless connected with others, of itself formed no defense. Now, if it was wholly irrelevant, it did no harm to either party. If it was a fact which might influence the mind of a jury, why should it be withheld from them? In a charge of fraud courts have said, what is evidence to affect the mind of a jury is often difficult to decide or distinguish. But any fact, though in itself of slight importance, will not be withheld. In such cases it is not for the court to treat the jury as persons without discernment, where the issue is one purely of fact. Now, there is not a fact stated as having been proved, taken by itself, as per se a defense to the action, which counsel might not with equal justice have treated as absurd or ridiculous. But if the court below had selected this fact from all the others as peculiarly liable to objection, their judgment might have been liable to the same charge.

It is not necessary to notice certain metaphysical distinctions which have been urged, such that a fact is not a circumstance, and eo contra, as the court below seems not to have given them any weight.

ALLEN ROBBINS, Plff. in Err.,

v.

THE CITY OF CHICAGO.

(See S. C. 4 Wall. 657-679.) Municipal corporations, remedy over, against party obstructing street-when notice to him of suit against city not necessary-license to construct sidewalk is not license to neglect precautions when principal, when contractor, liable for injuries.

Although municipal corporations are primarily

NOTE.-Liability of third persons, to city or town for damages recovered against it for injuries from obstructions or defects in streets-see note to Chicago v. Robbins, 17 L. ed. U. S. 298.

lable for injuries occasioned by obstructions or 'efects in their streets or sidewalks, yet they may have a remedy over against the party who is in 'ault, and who had so used the streets or sidewalks s to produce the injury.

Express notice to such party to defend the prior suit against the corporation is not necessary in order to render him liable to the corporation for the amount of the judgment paid to the injured party. If he knew that the suit was pending, and could have defended it, he is concluded by the judgment as to the amount of damages.

Although the defendant, in constructing a sidewalk, acted under the implied license of the corporation, no license can be presumed to leave an area open and unguarded to the injury of others.

The principal, for whom the work was done, cannot defeat the just claim of the corporation or of the injured party, by proving that the work which constituted the obstruction or defect was done by an independent contractor.

Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the employer is not liable. Where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party. [No. 132.]

Argued Jan. 28, 1867. Decided Feb. 18, 1867.

'N ERROR to the Circuit Court of the Unitnois.

This was an action on the case brought to recover from Allen Robbins the amount of judgment obtained by William H. Woodbury against the city of Chicago for injuries sustained by reason of a defective sidewalk.

suit

The declaration alleges that Robbins wrongfully dug, opened and made a pit or hole in a public street, next to and adjoining his property, and improperly suffered it to remain open so that Woodbury fell into the same and was injured; that Woodbury commenced against the city to recover damages, of which Robbins had notice, and recovered judgment for $15,000, which the city was obliged to pay. The accident from which the present controversy arises occurred on Wells street.

The circumstances from which the obligation of Robbins is claimed to arise are that in the spring of 1856 he was the owner of a vacant and unimproved lot in the southeast corner of Wells and South Water streets.

The city had, in 1855 ordered the grade of Wells street to be raised about 7 feet, and the carriageway to be filled with earth, and paved with "Nicholson pavement." In September, 1856, the city superintendent, in order to make a more easy approach to Wells street bridge, then being built, directed the grade of the street at this point to be raised eight inches

more.

In February, 1856, Robbins designed, planned, and let out to contractors, the erection of a building on his lot, and also the construction of a sidewalk in front thereof.

Robbins, in the erection of his building, was required by the city authorities to conform to the new grade, although the street had not then been filled, and he must have known of the proposed raising and paving of the carriageway at the time he contracted for the erection of his building. He must also have known that the filling of the carriageway would leave the old sidewalk about seven feet below the

erned in relation to it, nor in what court the ase was pending.

The finishing of the vacant space beneath the covering of the walk did not render it any more dangerous for the public. The accident to Woodbury occurred on Sunday evening, December 28th, 1856. On the night previous, the servants of Letz & Co., contractors of Robbins, not having wholly laid their prismatic iron grating to complete the permanent covering of the new sidewalk, left the unfinished portion with a temporary covering of boards and joists, which proved insufficient to prevent Woodbury from falling into the hollow space beneath. This temporary covering, to be replaced by the grating, had been previously ordered by Granger, the city superintendent of public works. The place was kept covered by the temporary covering after the order requiring it was made. The city superintendent was about the work every day, and had no recollection that the place was in a dangerous condition after the order requiring a temporary covering.

The power to erect lamps, and regulate the lighting thereof was exclusively vested in the common council of the city (city charter, chap. 4, § 4, par. 47); but no lamps were erected, and there were no lights at the corner of Wells and South Water streets when the accident to Woodbury occurred.

It appears from the evidence that Robbins was sick at the Tremont House from November, 1856, to February, 1857, and the accident occurred and suit was brought by Woodbury therefor in the meantime.

In the spring of 1856, before the city actully entered upon the improvement of Wells nd South Water streets, these streets, including the sidewalks, were in public use, by the city. Charter, chap. 4, § 4, par. 30 and 54, Municipal Laws, Chicago, ed. 1856, pp. 23, 26. The corporation had exclusive power to control, regulate, repair, and amend all streets and sidewalks; and the further power (chap. cause the streets and highways to be graded, leveled, and paved; and also the power (charter, chap. 7, § 1, par. 2) to cause sidewalks to be constructed, relaid, and repaided. These were classed by the charter (chap. 7, supra) as public improvements, and all of them, except sidewalks, were to be made at the expense of the property deemed benefitted by any natural division of the city (chap. 7, § 2, supra).

The city also passed an ordinance directing the repair and relaying of all old sidewalks, whenever their condition was such as to require it; and giving authority to the street commissioner to require of the adjoining lot owner to do the work; and in default thereof that the city should do it and charge the expense on the owner's lot.

Sec. 14, chap. 53, Ord. Mun. L. 1856, p. 399. This case is here for the second time on error, a former judgment in favor of Robbins having been reversed by this court. (2 Black, 418, 17 L. ed. 298).

At second trial the verdict and judgment were for the plaintiff, and the defendant excepted and sued out this writ of error.

The errors alleged at the trial have respect to so much of the charge of the court as related to the notice to the defendant of the pendency of the suit of the injured party against the city, and also to so much of the charge of the court as relates to the construction of the area described in the declaration.

The case further appears in the opinion. See also the report of the same case on the former appeal, above mentioned.

Messrs. F. H Kales, C. Beckwith, and S. W. Fuller, for plaintiff in error:

In this case, as reported in 17 L. ed. 298, it appeared that Robbins, under an implied license from the city, entered into a portion of the public street, and there made and excavated an area appurtenant to his building.

ord.

It now appears that Robbins, instead of enering under an implied license to construct an area, entered upon the street by express authority of the statute giving him that right, to relay an old sidewalk, a public improvement at that time required for the public use in front of his lot, and then authorized by the or

The city was bound by its obligation to the public, to have ordered the sidewalk relaid at grade, at the time the work was done. The obligation resting on the city creating a corresponding obligation on Robbins to do the work or pay the expense. The obligation of the city was absolute; that of Robbins was imperfect only as to the time of its performance;

but the city officers could at any time, by order, compel him to perform it. Robbins, by his contractors, entered upon the discharge of his obligation, and it will be presumed that he did so in pursuance of a proper order.

1. Where a public body is clothed by statute with power to do an act which the public interests require to be done, and the means of doing it are under the control of the corporation and at its disposal, it is in duty bound to exercise the power and cause the act to be done.

People v. Albany, 11 Wend. 540; Mayor v. Furze, 3 Hill, 612; Wilson v. Mayor, 1 Den. 601; Hutson v. Mayor, 9 N. Y. 163; Browning v. Springfield, 17 Ill. 143.

Especially is this the rule where a public necessity for the performance of the act is created by some other act done by the corporation itself.

Barton v. Syracuse, 37 Barb. 292; Mills v. Brooklyn, 32 Ñ. Y. 489; Rochester White Lead Co. v. Rochester, 8 N. Y. 463; Goodrich v. Chicago, 20 l. 445.

Robbins, having entered upon the street in discharge of his obligation to the city, was in as of right, and not by virtue of a license expressed or implied.

A license expressed or implied, is a permission to do something, which without it would be unlawful.

Thomas v. Sorrell, Vaugh, 330, 351; Wood v. Leadbitter, 13 Mees. & W. 845; Cook v. Stearns, 11 Mass. 533; Woodward v. Seely, 11 Ill. 157.

If Robbins entered upon the street under his right so to do, and let the work of constructing the sidewalk to skillful contractors, he is not responsible for their negligence.

Reedie v. Railway Co. 4 Exch. 244; Peachey v. Rowland, 76 Eng. C. L. 182; Gray v. Hubble, (Q. B.) 32 Law. Jour. (N. S.) 169; Gray v. Pullen, Q. B. 32 Law. Jour. (Law) N. S. 169, 1863; Blake v. Ferris, 5 N. Y. 48; Painter v. Pittsburgh, 46 Pa. 213; Pack v. Mayor N. Y. 8 N. Y. 222; Kelley v. Mayor N. Y. 11 N. Y. 432; Overton v. Freeman, 73 E. C. L. 867; Allen v. Hayward, 7 Ad. & E. (N. S.) 960; Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, 8 N. Y. 222; Scammon v. Chicago, 25 Ill. 425. Although Robbins was the owner of the lot, he is not on that account responsible for the negligence of his contractors in contructing the sidewalk required in front of his premises. The injury resulted immediately from the negligence of the contractors' servants, in leaving uncovered or improperly covered, over Sunday, the hole which Robbins had by contract directed them to cover.

Aside from the character and plan of the work, for which, from its origin and nature, Robbins could not be held responsible, the omission to put on the covering was the direct and only cause of the injury. That omission was never directed by Robbins, but was the wrongful act of the contractors' servants.

The court is bound to presume that this plan, authorized by the common council, could be carefully executed without the necessity of such a negligent omission; and Robbins had the right-as against the city, which had forced the plan upon him-to suppose the same thing. Under these circumstances, if the contractor,

while invested with the control of the work, unnecessarily committed a nuisance, Robbins is not liable therefor.

Peachey v. Rowland, 76 E. C. L. 181; Overton v. Freeman, 73 E. C. L. 867; Allen v. Hayward, 53 E. C. L. 960; Reedie v. Railway Co. 4 Exch. 244; Hobbitt v. Railway Co. 4 Exch. 255; Saltonstall v. Banker, 8 Gray, 195.

Robbins was under no obligations to guard the work by lights; he would have been guilty of a public nuisance had he undertaken to do so. City charter, chap. 4, § 4, par. 47; Mun. Laws of Chicago, p. 24; Buffalo v. Holloway, 7 N. Y. 493.

As the city did not request Robbins to defend the suit brought by Woodbury, nor communicate to him all the facts in relation thereto, it should have been submitted to the jury, whether the facts communicated-considering the circumstances under which the communication was made were such as would have caused a prudent man to act.

Messrs. Elliott, Anthony and S. A. Irvin for defendant in error.

Mr. Justice Clifford delivered the opinion of the court:

Municipal corporations having the care and control of the public streets within their limits are obliged by the laws of the state of Illinois to keep the same in good repair "for the passage of persons and property," and in case of neglect, any person receiving injury in consequence of any obstruction or defect may have an action on the case to recover compensation for such injuries. Statutes to that effect exist in most of the states, but the principle is now well settled that in all cases where it appears that the obstruction or defect which occasioned the injury was caused, constructed, or created by a third person, the corporation, if it was without their concurrence, may have a remedy over against the party immediately in fault.

Severe injuries were received by one William H. Woodbury, on the 28th day of December, 1856, while passing over Wells street, within the limits of the plaintiff corporation. He sued the corporation in the state court to recover compensation for the injuries so received. Declaration alleged that the defendant in this suit was the owner of a building lot fronting on that street; that in making improvements thereon he wrongfully excavated an area in the sidewalk in front of his lot, and adjoining the same, of great length, width, and depth, and wrongfully suffered it to remain *un- [*671 covered and unguarded, so that the injured party, while passing over the sidewalk during the night of that day, and while in the exercise of reasonable care and prudence, fell into the excavation and was greatly injured. Parties went to trial in that suit at the June term of the court in 1857, and judgment was rendered for the plaintiff in the sum of $15,000 damages and costs of suit, which the corporation was compelled to pay.

Present suit was an action on the case to recover of the defendant, as the party who constructed, caused, or created the obstruction or defect in the street, the amount of that judg ment and the expenses of the litigation. Gravamen of the charge in the declaration was that the defendant made the excavation and negli

gently left it open and unguarded, and that the injury to the plaintiff in the suit against the corporation was caused by that obstruction or defect, and that the defendant by reason of the premises became and was answerable over to the plaintiffs in this suit for the amount of that judgment, and for their reasonable expenses in defending the action. Plea was the general issue, and the verdict and judgment at the first trial were for the defendant. Corporation plaintiff removed the cause into this court by writ of error, and the judgment of the circuit court was reversed and the cause remanded for a new trial. Pursuant to the mandate of this court, a new venire was issued, and the verdict and judgment at the second trial were for the plaintiffs, and the defendant excepted and sued out this writ of error.

Errors alleged at the trial, as stated in the bill of exceptions, have respect to so much of the charge of the court as relates to the notice to the defendant of the pendency of the suit in which the injured party recovered judgment against the corporation, and also to so much of the charge of the court as relates to the construction of the area described in the declaration. Exceptions were also proposed to one of the rulings of the court in excluding certain testimony, but the objection appears to have been waived, as it was not made the subject of any consideration in the argument. 672*] *I. Charge of the court in respect to the notice to the defendant of the pendency of the suit against the corporation, presents the first question for decision. Preliminary to that part of the charge which is the subject of complaint, the court remarked that although municipal corporations were primarily liable for injuries occasioned by obstructions or defects in their streets or sidewalks, they yet might have a remedy over against the party who was in fault, and who had so used the street or sidewalk as to produce the injury. Instruction was then given to the effect that if the defendant knew that the suit was pending and could have defended it, and it was through his fault that the party was injured, he was concluded by the judgment recovered against the corporation. Express notice, said the presiding justice, was not required, nor was it necessary that the officers of the corporation should have notified him that they would look to him for indemnity. Just exception certainly cannot be taken to those instructions, as they are in precise accordance with what this court decided in this case when it was before the court on the former occasion. Same principle was adopted and applied in the case of Lovejoy v. Murray [ante, 129], in which the leading authorities upon the subject were collated and examined. Conclusive effect of judgments respecting the same cause of action and between the same parties rests upon the just and expedient axiom, that it is for the interest of the community that a limit should be opposed to the continuance of litigation, and that the same cause of action should not be brought twice to a final determination. 2 Taylor, Ev. § 497.

Parties in that connection include all who are directly interested in the subject-matter, and who had a right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. Persons

not having those rights substantially are regarded as strangers to the cause, but all who are directly interested in the suit and have knowledge of its pendency, and who refuse or neglect to appear and avail themselves [*673 of those rights, are equally concluded by the proceedings. 1 Greenl. Ev. 12th ed. 599.

Evidence in the record shows that the defendant knew that the party was injured by falling into the excavation, and that the action against the corporation was commenced, that he was informed of the day of trial, that he was requested to assist in procuring testimony, and that he actually wrote to a witness upon the subject. Testimony of the attorney of the corporation shows that he called upon the defendant, soon after the suit was commenced, for the purpose of finding out whether he, the defendant, knew anything about the case which would be for the benefit of the corporation in preparing the defense, and made inquiries of him to that effect. Responsive to those inquiries the defendant mentioned, the name of a person who was boarding at the same place with the injured party, and whose testimony he, the defendant, supposed would be of benefit to the corporation. His idea was that the injuries of the party were not as great as he pretended, and for that reason the defendant suggested that the person named would be a good witness for the defense, and he agreed to write and get an exact statement of what he would testify if called and examined.

Inquiry was made of the witness if he told the defendant that he was the attorney of the corporation, and he answered that he was not able to say; but he further testified that he had long known the defendant, and that they were intimate acquaintances. Same witnesses testified that on the day of the trial of that case, or the day before, he met the defendant in the court house, at the foot of the stairs, and told him that the case was about to be tried.

Surely it cannot be doubted that the evidence justified the instructions of the court, and, it might be added, if need be, that it fully warranted the finding of the jury. Based on that testimony, the court further instructed the jury that if the attorney of the corporation informed the defendant of the suit and its nature, and of the day of the trial, and conversed *with him about the testimony for the [*674 defense, he was as much chargeable with notice as if he had been directly told that he could contest the right of the injured party to recover, and that the corporation would look to him for indemnity in the case of an adverse result. Argument for the defendant was that the notice was defective, because the attorney did not specify in what court the suit was pending, but the presiding justice instructed the jury that when the defendant was told that the injured party had sued the corporation for the injuries occasioned by his falling into an area which he, the defendant, had built, then it was his duty to have inquired and ascertained in what court the action was to be tried. Knowledge of the pendency of the suit in the most authentic form was brought home to him, and the legal presumption is that he knew that he was answerable over to the corporation, and if so, it must also be presumed that he knew he had a right to defend the suit. Being in the

court house on the day the trial commenced, or the day before, and having been informed by the corporation attorney that the case was about to be heard, the defendant cannot evade the effect of the judgment upon the ground that he did not know in which court the case was pending. Persons notified of the pendency of a suit in which they are directly interested must exercise reasonable diligence in protecting their interests; and if instead of doing so they willfully shut their eyes to the means of knowledge which they know are at hand to enable them to act efficiently, they cannot subsequently be allowed to turn round and evade the consequences which their own conduct and negli gence have superinduced. May v. Chapman, 16 Mees. & W. 355.

Decision of this court in his case, when it was here before, was that express notice to the defendant to defend the prior suit was not necessary in order to render him liable to the corporation for the amount of the judgment paid to the injured party; that if he knew that the suit was pending, and could have defended it, 675*] he was concluded by the judgment as to the amount of the damages, and we adhere to that rule as the settled law of the court.

II. Second exception is even more general in its terms than the first, and might well be rejected on that account as presenting no definite question for the decision of the court. Statement in the bill of exceptions is that the defendant excepts to so much of the charge of the court as relates to the construction of the area described in the declaration, and the record shows that the part of the charge referred to fills more than a page of the transcript, and for the most part is merely descriptive of the circumstances under which the area was constructed.

Purport of the description is that the defendant was engaged in erecting a large and valuable building on his lot fronting on the east side of Wells street, and that he caused an area to be constructed in the sidewalk in front of the building, appurtenant to the same, and for its convenience and accommodation.

Prior to that time the corporation had passed an ordinance requiring the grade of this street to be raised, and the work of raising the grade as ordered was accomplished during the summer preceding the accident. Change of grade in the street made it necessary to raise the sidewalk, so that the defendant in order to construct the area in front of his building, was not obliged to make much excavation.

Declaration alleged that the place for the area was excavated, and the defendant contended that the proofs did not sustain that allegation, as they showed that the depth of the area was chiefly created by filling and raising the sidewalk on each side of it, and not by excavation, as alleged. Charge of the court was that it was immaterial whether the depth of the area was obtained in the one or the other of these modes, or by both, and we have no doubt the charge was correct.

Material matter alleged and in issue was, that the defendant caused or created the obstruction or defect in the street which occasioned the injury and wrongfully left it open and unguarded, as alleged in the declaration; 676*] and if he did so, it surely was immaterial whether he constructed it by excavation

or in the manner described by the contractor. Strong effort was made to show in argument, that the defendant, in constructing the area, acted under the express orders of the corporation, and consequently that he is not liable in this action. Theory of his counsel is, that inasmuch as the ordinance of the corporation directed the grade of the street to be raised, he but executed the orders of the corporation in doing the work. Suppose all that be granted, still it is evident that it constitutes no defense to this action. His authority to raise the sidewalk to the new grade is not contested.

Neither the ordinance nor the evidence, however, shows that in excavating, or leaving unfilled, the place for the area, he acted under the directions of the corporation, or that his acts were in any way for their benefit. Absence of objections on the part of the officers of the corporation authorize the presumption that the defendant was not in fault in constructing the area so as to raise the surface to the even grade of the street, and justified the charge of the court that in constructing it, the jury might infer that he acted under their implied license; but no license can be presumed from that fact, or from any other evidence in the case, to leave the area open and unguarded, which was the gravamen of the charge in the declaration.

Instructions of the court were substantially in accordance with those views, and were quite as favorable to the defendant as he had any right to expect.

Remarks already made show that the defendant, in constructing the area, was not constructing a public improvement for the benefit of the corporation, but was constructing a private work exclusively for his own convenience. Attempt is made to give the work a public character, because, in constructing the area, it became necessary to raise the sidewalk to the new grade, but the argument is hardly plausi ble and is clearly without any solid foundation. Liability of the defendant, however, was not placed upon the ground that ne was not authorized to raise the sidewalk. *On the [*677 contrary, the jury were distinctly told that the gravamen of the charge was, not that the defendant was engaged in an unlawful work when he constructed the area, but the court placed his liability upon the ground that he left the area open and without guards to warn those who had occasion to pass in the street, so that the work, which was originally lawful, became a nuisance and was unlawful at the time of the injury. Correctness of that instruction, in view of the evidence as reported in the transcript, is so manifest that it needs no support.

Objection is also taken to the instruction in which the court told the jury that if they believed from the evidence that the area was built under the direction of the defendant, and for his benefit, and that it was left open and without guards, and that the plaintiff in the suit against the corporation, while passing along the street, fell into the area and was injured as alleged, then they would find for the plaintiff. Want of reasonable care on the part of the injured party was not alleged in defense or suggested in argument, and instructions as to notice to the defendant of the pendency of the prior suit had been previously given to the jury.

Argument for the defendant is that the in