JAMES L. BYNUM, and EDWARD MAHER, (GUERIN, GALLAGHER & BARRETT, of counsel,) for appellee.

Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:

The appellee, Dietrich M. E. Brun, brought this action on the case in the superior court of Cook county against the appellants, the P. Nacey Company and the Chicago City Railway Company, to recover damages for personal injuries received on October 15, 1906, alleged to have been caused by the concurrent negligence of the defendants. Upon a trial the jury returned a verdict finding defendants guilty and assessing the damages at $8500. The plaintiff remitted $2500 from the damages assessed by the jury and the court entered judgment for $6000 and costs. The defendants prosecuted separate appeals to the Appellate Court for the First District, where the appeals were consolidated. The Appellate Court being of the opinion that the judgment was clearly too large, even after the remittitur, ordered that the judgment should be affirmed only on condition that plaintiff would remit a further sum of $2000. The remittitur was entered and the judgment was thereupon affirmed to the amount of $4000 and interest, one of the justices dissenting. The court then granted a certificate of importance and appeals to this court, which were perfected, and the appeals have been consolidated.

The plaintiff, in the afternoon of October 15, 1906, while driving a one-horse express wagon in a walk or jogtrot on Archer avenue, in the city of Chicago, near the intersection with Keeley street, was thrown from the wagon to the pavement in going through a depression in the street, two feet wide, extending from the north curb to the middle of Archer avenue and variously estimated by the witnesses at from ten inches to two feet deep. The defendant the Chicago City Railway Company operated an electric street railway on double tracks on Archer avenue, and the street

was paved with asphalt from the curb to each side of the railway tracks and between the tracks with granite blocks. The defendant the P. Nacey Company, by the payment of $30 to the city of Chicago, secured a permit on September 7, 1906, to make an excavation at the place of the accident for the purpose of connecting drainage with the sewer in the middle of the street, and made the excavation on or about September 10, 1906, by cutting the asphalt in sections along the line of the trench, removing the granite blocks and throwing out the dirt. After laying the drain the trench was filled and the surface was left slightly higher than the surface of the street. The permit required the P. Nacey Company to re-fill the trench and tamp the dirt in doing so. The evidence for the plaintiff tended to show that the filling of the trench was not properly done; that soon afterward the dirt began to sink, making the depression into which the plaintiff drove, and that he drove into such depression between the tracks of the railway.

There were five counts in the declaration, and demurrers were sustained to the fourth and fifth and issues were formed on the first, second and third, which charged the P. Nacey Company with liability on account of negligently failing to properly fill the trench, and charged the Chicago City Railway Company with liability on account of a failure to keep so much of the street as was occupied by it in good repair and condition, as required by ordinances of the city of Chicago set out in the declaration, together with other alleged ordinances, licenses and agreements not set out therein, and in connection with certain acts of the legislature.

The declaration being based upon an alleged duty of the Chicago City Railway Company, created by ordinance of the city, to repair the street, and not upon any common law duty, the question going to the merits of the case, so far as that company is concerned, is whether any ordinance of the city imposed such a duty. Of course, it was incumbent

upon the plaintiff to sustain the declaration by proof of such an ordinance, and the only ordinance offered in evidence containing such a condition was passed in 1858. That ordinance authorized Henry Fuller, Franklin Parmalee and Liberty Bigelow, their executors, administrators and assigns, to lay and operate a single or double-track railway, to be operated with animal power, along certain streets, one of them being, "commencing at State street at the junction of Archer road, thence along said Archer road to the present limits of the city." That ordinance required the persons named therein to "keep such portion of the respective streets as shall be occupied by their street railway, or either of them, in good repair and condition during the whole time that the privileges hereby granted to said parties shall extend." To bring the locality within the ordinance so as to create a duty to keep the place where the plaintiff was injured in good repair and condition it was necessary for him to prove that Archer avenue, at Keeley street, was within the limits of the city in 1858, since courts do not take judicial notice that a certain locality is within the limits of a certain city. (Dougherty v. People, 118 Ill. 160; Gunning v. People, 189 id. 165.) There was no proof from which an inference of such fact could result. It was stipulated at the trial that the railway company was, when the injury to plaintiff occurred, operating a double-track electric street railway on Archer avenue, south-west from State street, to the city limits, passing Keeley street, and had been so operating the same for many years prior thereto, but that was not an admission, either in terms or legal effect, that such railway was constructed or authorized to be constructed under the ordinance of 1858, or that such railway was in existence in 1858, or that the company was subject to the provisions of that ordinance in regard to keeping the streets in repair.

The other ordinance was section 1945 of the general ordinances of the city of Chicago of 1905, as follows:

"Every person or corporation operating a street railroad in the city shall keep the tracks of his or its road in such a condition that such tracks shall not at any time be elevated above the surface of the streets on which they are laid, and so that vehicles can easily and freely at all times cross such tracks at all points, in any direction, without obstruction. They shall also keep in good repair such portions of the streets as they severally have agreed or may agree with said city so to keep in repair." This section imposed no duty upon the Chicago City Railway Company to keep in good repair any portion of a street except such portions as it had severally agreed or might agree with the city to keep in repair, and, of course, it had no tendency to prove that any agreement had been made. The requirement that tracks should not at any time be elevated above the surface of the streets on which they were laid, so that vehicles could easily and freely at all times cross the tracks, had no relation to the question of keeping the roadway in repair; and this is especially so in view of the subsequent requirement to keep such portions in repair as the companies had agreed or might agree with the city to keep in repair.

The statutes relied upon were enacted in 1859 and 1865. The act of 1859 (Laws of 1859, p. 530,) constituted Franklin Parmalee, Liberty Bigelow, Henry Fuller and David A. Gage, and their successors, a corporation by the name of Chicago City Railway Company, for a term of twenty-five years, and authorized the corporation to construct, maintain and operate a single or double-track railway in the city of Chicago, within the then present or future city limits, in the south and west divisions of the city, as the common council of said city had authorized the corporators, or any of them, or should authorize such corporation so to do, in such manner and upon such terms and conditions and with such rights and privileges as the common council had prescribed, or might by contract with said parties, or any or either of them, prescribe. All the rights and privileges

granted to Parmalee, Bigelow and Fuller were affirmed, and it was provided that such privileges should pass to and become vested in the corporation. That act did not limit the authority to construct and operate its railways to the then present limits of the city, but contemplated extensions to the future limits upon such conditions as the common council might prescribe, which necessarily included conditions as to keeping the streets in repair. The act of 1865 was amendatory and extended the duration of the life of the corporation to ninety-nine years, with precisely the same provisions as before, concerning the occupation of the streets upon such terms and conditions as had been or might be prescribed by contract.

The fact that the rights and privileges granted to Fuller, Parmalee and Bigelow by the ordinance of 1858 passed to the corporation and subjected it to the conditions of that ordinance has no tendency to prove that the locality where the plaintiff was injured was within the city limits in 1858 or that it came within the terms of the ordinance. The acts of 1859 and 1865 conferred no right upon the corporation to occupy any of the streets of the city but expressly provided that such right could be acquired only from the council, with such terms and conditions, rights and privileges as the council had prescribed or might prescribe. In the case of Blair v. People, 201 U. S. 400, in which the ordinance of 1858 and the acts of the General Assembly were under consideration, it was expressly stated (p. 460) that what was acquired by the act of 1859 was "the right to be a corporation for the period named and to acquire from the city the right to use the streets upon contract terms and conditions to be agreed upon." Of the act of 1865 it was said (p. 465): "It has the effect to extend the life of the corporation to ninety-nine years and to authorize the use of the streets of Chicago with the consent and upon the terms agreed upon with the council." Whether the railway tracks were laid in Archer avenue, at Keeley street, under