Syllabus. The effect of this provision is decisive. No case more proper than the one before us, for its application, can be presented. The judgment below is AFFIRMED, WITH COSTS. ROBBINS v. CHICAGO CITY. 1. Parties having notice 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 wilfully shut their eyes to the means of knowledge which they know are at hand to enable them to act efficiently, they cannot subsequently turn round and evade the consequences which their own conduct and negligence have superinduced. 2. The term "parties,” as thus used, includes all who are directly interested in the subject-matter, and who had a right to make defence, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. 3. Express notice to defend is not necessary in order to render a party liable over for the amount of a judgment paid to an injured plaintiff. If the party knew that the suit was pending, and could have defended it, he is concluded by the judgment as to the amount of the damages. Chicago City v. Robbins (2 Black, 418), affirmed. 4. Absence of objection by municipal officers to a person's building an area in a public sidewalk, may infer a permission to build the area but cannot infer a permission to leave it in a state dangerous to persons passing by. 5. A person building a storehouse on a street, who, in consequence of the city's raising the carriage-way of the street, raises a sidewalk so as to make it conform to the grade of the carriage-way—such person obtaining by his mode of raising the sidewalk, vaults and an area for the benefit of his building-does not do a public work, nor relieve himself from the penalty of making a nuisance if a nuisance is made by what he does. 6. In a suit caused by a person's falling into an area in a public sidewalk, a declaration charging that the defendant "dug, opened, and made,” the area is sustained by proof that he formed it partially by excavation and partially by raising walls. 7. Where work done on a public highway necessarily constitutes an obstruction or defect in the highway which renders it dangerous as a way for travel and transportation unless properly guarded or shut out from public use, in such case a principal for whom the work was done cannot defeat the just claim of a municipal corporation which has had to pay Statement of the case. damages, or of a private party who has suffered injury, by proving that the work which constituted the obstruction or defect was done by an independent contractor. Chicago City v. Robbins (2 Black, 418), affirmed. 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. The case was this: 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. En Statement of the case. croachments 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 sidewalkeleven 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, Statement of the case. 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, somebody would be hurt-'a neck or a leg broke'-and the city have damages to pay. To this Robbins replied, that it was "more the contractor's business than his," or was "wholly the contractor's business," but that he would speak to him. Previously to this the chief clerk of the superintendent's office, by direc tion of the superintendent, had written to Robbins, giving him notice of the dangerous condition of the place; and the clerk and superintendent, who were often in that neighborhood, and were struck with this condition, had, themselves, once or oftener, covered it with plank. The contractor was told about it also, and he spoke several times to his foreman on the subject. On Sunday evening, December 28th, 1856, the night being stormy, Woodbury, who was passing the place, and in walking had to face the storm, fell down the area, which had been left or had become uncovered from Saturday night, and was severely hurt. He soon after brought suit against the city for damages. The city attorney, Mr. Marsh, whose duty it was to defend the suit, now applied to Robbins to assist him in procuring testimony. Robbins told him of one Livingston, who had boarded at the same place with Woodbury at the time of the accident, whose idea was that Woodbury's injuries were not so great as he pretended, and who would therefore be a good witness for the city. Robbins promised Statement of the case. to write to him, and afterwards informed Marsh that he had done so. The day of the trial or the day before it, Marsh, casually meeting Robbins at the foot of the stairway of the court-house, remarked to him that the suit was about to be tried, or was coming on; but he did not tell him in what court the suit was, nor did he ever give Robbins any notice that the city would look to him for indemnity for what it might have to pay Woodbury; he "never having talked with Robbins in reference to the case with any such idea as that," the only object being to prepare the defence. Marsh did not state to Robbins that he was the city attorney, but the parties were long and intimately acquainted with each other, meeting almost daily, and Marsh presumed as of course, that Robbins knew that fact. Woodbury recovered in his suit $15,000 damages, which the city paid. A provision of the city charter in force at the time when Robbins built his area, declared that "All owners in front of whose premises the common council should direct sidewalks to be constructed, should make such sidewalks at their own cost, and if not so made, that the council might make them and assess the cost against the premises." The controversy had already been before this tribunal, when a judgment in favor of Robbins had been reversed.* The court below now charged the jury, in substance, as follows: "The law is, that although the city is primarily liable for an injury suffered by reason of the dangerous condition of the streets and sidewalks, yet the corporation has a remedy over against the party that is in fault, and has so used the streets and sidewalks as to produce the injury. "The question, then, is, whether Robbins is answerable to the city for the judgment recovered by Woodbury. "If it was through the fault of Robbins that Woodbury was injured, he is concluded by the judgment recovered against the *Chicago City v. Robbins, 2 Black, 418. |