Stafford v. Rubens

• Decision Date: 14 November 1885
• Citation: 3 N.E. 568,115 Ill. 196
• Parties: STAFFORD and others v. RUBENS, Adm'r, etc.
• Court: Illinois Supreme Court

115 Ill. 196

3 N.E. 568

STAFFORD and others

v.RUBENS, Adm'r, etc.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from appellate court, First district.

R. W. Smith, for appellant.

Barnum, Rubens & Ames, for appellees.

SHELDON, J.

This is an appeal from a judgment of the appellate court for the First district affirming a judgment in favor of the plaintiff entered upon a verdict. The action was to recover damages for the killing of a child three years and five months old, alleged to have been occasioned through the defendant's negligence in leaving water-pipes in a street in an unsafe condition, from the rolling over of one of which upon the child it was killed. The only errors of law insisted upon are in refusing to give the following instructions asked by the defendants:

(1) If the jury believe, from the evidence in this case, defendants' teamsters, O'Donnell and Brophy, unloaded the pipes at the place testified to, and protected the pipes by placing a brick in front of the pipe nearest the ditch, and that said pipes remained in the position where they were left for 24 hours or more, and would have continued to remain on the spot where they were left by said teamsters if not disturbed by some outside force; and if the jury further believe, from the evidence, that said pipes were disturbed by the deceased, or by some persons other than said teamsters or the defendants, and that such disturbance caused the pipes to roll upon and kill the deceased,-then the plaintiff in this suit cannot recover. (5) If the jury believe, from the evidence, that the parents of the deceased, or either of them, negligently and carelessly allowed a child of the age of three years and five months to go unprotected upon the public street, and without which negligence on their part the injury would not have happened to her, then they were guilty of such negligence in the care of said child as will prevent a recovery in this suit, unless the jury believe, from the evidence, that the injury was caused by the willful, intentional, or wantonly reckless acts of the defendants, or their teamsters. (6) In this case, if the jury should find the defendants guilty, they can only assess such damages in favor of the plaintiff as the evidence in the case will warrant by reason of the death of Mary Schock; and if the jury find, from the evidence, that the father and mother of Mary Schock were not dependent on her for support, in whole or in part, then the jury can...