City of Pekin v. McMahon

• Citation: 39 N.E. 484,154 Ill. 141
• Parties: CITY OF PEKIN v. McMAHON.
• Decision Date: 14 January 1895
• Court: Supreme Court of Illinois

154 Ill. 141

39 N.E. 484

CITY OF PEKIN

v.McMAHON.¹

Supreme Court of Illinois.

Jan. 14, 1895.

Appeal from appellate court, Third district.

Action on the case by Patrick McMahon, administrator of the estate of Frank McMahon, deceased, against the city of Pekin. Plaintiff obtained judgment, which was affirmed by the appellate court. 53 Ill. App. 189. Defendant appeals. Affirmed.G. W. Cunningham, W. L. Prettyman, and Wm. Don Maus, for appellant.

T. N. Green and W. R. Curran, for appellee.

This is an action on the case, brought by appellee, administrator of the estate of his deceased son, Frank McMahon, against appellant, the city of Pekin, to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of said city. Verdict and judgment in the circuit court were in favor of the plaintiff. The appellate court has affirmed the judgment, and the present appeal is from such judgment of affirmance.

The declaration alleges that on April 12, 1892, the city owned lots 7, 8, 9, and 10, in block 11, in Bailey's addition to Pekin; that for a long time before that date it had caused a dangerous hole or pit to be made in said lots, by digging thereon, and removing sand and gravel therefrom; that it permitted water to accumulate and remain in said hole or pit, so that it became a nuisance, and dangerous to the lives of citizens, and ‘of children of tender years, incapable of exercising ordinary care or discretion, who might be attracted thereto’; that it was defendant's duty to cause the same to be drained, so as to remove the water therefrom; that the deceased, a child of tender years, and incapable of exercising ordinary care or discretion, was attracted thereto, and, necessarily and unavoidably, on account of defendant's failure to drain the water from said pit, without fault on his part or on the part of his parents, fell into the said pit, and was drowned. The plea was the general issue, with notice of special matter of defense to the effect that the premises were the property of the city; that it was incorporated under the general act of incorporation; that the lots were inclosed by a fence on the east and west sides thereof, and nearly inclosed on the south and north sides thereof; that the deceased entered and remained upon the premises as a mere trespasser, and engaged in play, without the knowledge, permission, or invitation of defendant, and carelessly, accidentally, or negligently fell into a pool of water thereon, and was drowned. The proof tends to show that the city became the owner of the lots in 1887; that they constituted about half a block in size; that they were bounded on the north by a public alley 10 feet wide, on the west by Capitol street, on the south by St. Julien street; that these streets were each 60 feet wide, and improved, and open to public travel; that there had originally been a natural water course across the lots from northeast to southwest, sufficient to carry off the surface water accumulating to the north, east, and southeast over an area of 200 or 300 acres; that this water had passed through said water course across said lots to the Illinois river; that the lots were in the thickly settled limits of the city; that, before its taking possession of the lots in 1887, the city had built a sewer, with an aperture of four feet, at the southwest corner thereof, under the junctionof Capitol and St. Julien streets; that thereafter it dug into the water course, to get gravel to improve its streets; that the excavation thus made was some 200 feet long and 100 feet wide; that its banks were steep; that the depth was about 10 feet below the mouth of the sewer, so that the water could not run off; that the deepest water was over 14 feet; that the city stopped taking out gravel in 1890 or 1891; that the fence along the west side on Capitol street was bad, and caved in somewhat; that there was a gap or opening in the fence, more than 40 feet wide, on the south side on St. Julien street, and another gap in the fence, 30 or 40 feet wide, upon the alley near the northeast corner; that, with a view of filling up the pit, a causeway or driveway had been thrown up across from the north gap southwesterly to the south gap by the dumping in of rubbish and cinders; that parties had been in the habit of passing along this causeway for a year before April 12, 1892, when deceased was drowned, using it to go across the lots, instead of going round the corner; that this driveway was open, so that the public could use it; that the boys had been in the habit of playing upon planks and logs in the water in the pit, and had fallen into the water; that the city authorities had been notified by parents of the danger, and requested to remove it; that the dangerous condition continued a year before the accident; that, after building the roadway, there were two bodies of water; that the deceased was eight years and two months old; that his father was a laboring man, and had gone to his work at 6 o'clock a. m. on April 12, 1892, and did not return until quarter past 6 p. m.; that the mother had been doing washing on that day; that she had four children besides the deceased, the youngest being eight months old; that she had heard of the pit, but had never visited it; that deceased came home from school at 4 p. m., and was given permission by his mother to play; that he and a boy named Harry Evans met one Soady, driving a wagon, who allowed them to get in and ride; that Soady drove to his barn, on the north side of said alley, opposite the opening or gap in the north fence; that there the boys dismounted from the wagon; that deceased went through the opening onto the causeway, and stepped upon a log in the water, which rolled, and threw him into the pond, and he was drowned at a point a few feet south from Soady's barn, near the northeast corner of the lots.

MAGRUDER, J. (after stating the facts).

1. The main question in the case arises out of the refusal of the trial court to give the second and third instructions asked by the defendant. Is an individual landowner obliged to respond in damages for the death of a child occurring upon his premises under such circumstances as are developed by the testimony in that case? The general rule is well settled that the private owner or occupant of land is under no obligations to strangers to place guards around excavations upon his land. The law does not require him to keep his premises in safe condition for the benefit of trespassers, or those who come upon them without invitation, either express or implied, and merely to seek their own pleasure, or gratify their own curiosity. 1 Thomp. Neg. p. 303; 2 Shear. & R. Neg. (4th Ed.) § 715. An exception, however, to this general rule exists in favor of children. Although a child of tender years, who meets with an injury upon the premises of a private owner, may be a technical trespasser, yet the owner may be liable, if the things causing the injury have been left exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts. Unguarded premises, which are thus supplied with dangerous attractions, are regarded as holding out implied invitations to such children. ‘The owner of land where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in safe condition; for they, being without judgment, and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers, and mere licensees.’ 2 Shear. & R. Neg. (4th Ed.) § 705; 4 Am. & Eng. Enc. Law. p. 53, and cases cited in note. In such case the owner should reasonably anticipate the injury which has happened. 1 Thomp. Neg. p. 304.

There is a conflict in the decisions upon this subject, some courts holding in favor of the liability of the owner, and others ruling against it. Where the land of a private owner is in a thickly settled city, adjacent to a public street or alley, and he has upon it, or suffers to be upon it, dangerous machinery, or a dangerous pit or pond of water, or any other dangerous agency, at a point thereon near such public street or alley, of such a character as to be attractive to children of tender years, incapable of exercising ordinary care, and he is aware or has notice of its attractions for children of that class, we think that he is under obligations to use reasonable care to protect them from injury when coming upon said premises, even though they may be technical trespassers. To charge him with such an obligation under such circumstances is merely to apply the well-known maxim, ‘Sic utere tuo ut alienum non laedas.’ It is true, as a general rule, that a party guilty of negligence is not liable if he does not owe the duty which he has neglected to the person claiming damages. Williams v. Railroad Co., 135 Ill. 491, 26 N. E. 661. But, although the private owner may owe no duty to an adult under the facts stated, the cases known as the ‘Turntable Cases' hold that such duty is due from him to a child of tender years. The leading one of the turntable cases is Railroad Co. v. Stout, 17 Wall. 657. There the company was held liable in an action by a child about six years old, who had injured his foot while playing with a turntable belonging to the company, although it was contended that he was a trespasser, and had received the injury because of his own negligence, and that the company owed him no duty; it appearing that the turntable was located upon the private grounds of the company, in a settlement of from 100 to 150 persons, about 80 rods from the depot, near two traveled roads, and was a dangerous machine, and was not guarded or fastened, and that a servant of the company has previously seen boys playing there, and had forbidden them to do so. And it was further held that the care and caution required of a child is according to his...