Burns v. City of Chicago

• Decision Date: 13 February 1930
• Docket Number: No. 18946.,18946.
• Parties: BURNS v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

338 Ill. 89

169 N.E. 811

BURNS

v.CITY OF CHICAGO.

No. 18946.

Supreme Court of Illinois.

Dec. 20, 1929.

Rehearing Denied Feb. 13, 1930.

Error to the First Branch, Appellate Court, First District, on Appeal from Superior Court, Cook Countyf Joseph B. David, Judge.

Action by Elinor Burns, as administratrix of the estate of Robert E. Burns, deceased, against the City of Chicago. A judgment for plaintiff was affirmed by the Appellate Court (248 Ill. App. 204), and defendant brings certiorari.

Judgments reversed.

Samuel A. Ettelson, Corp. Counsel, and William D. Saltiel, City Atty., both of Chicago (Charles M. McDonnell, E. Marshall Amberg, and Roy S. Gaskill, all of Chicago, of counsel), for plaintiff in error.

Charles C. Spencer and Arthur A. House, both of Chicago, for defendant in error.

EDMUNDS, C.

Elinor Burns, as administratrix, brought action against defendant, the city of Chicago, to recover damages for the wrongful death of her intestate, Robert E. Burns, a minor aged eight years and three months. At the close of plaintiff'scase defendant moved for a directed verdict in its favor. The motion was overruled; defendant offered no evidence and renewed the motion, which was again overruled; and the cause was submitted to the jury, which returned a verdict in favor of the plaintiff in the sum of $4000. Judgment was entered on the verdict in this amount and on appeal was affirmed by the Appellate Court. 248 Ill. App. 204. The case is here on certiorari.

Defendant's motion for a directed verdict in its favor raises in this court the question whether there is evidence in the record which, taken with all its reasonable inferences, would be sufficient in law to support the cause of action. Wheeler v. City of Le Roy, 296 Ill. 579, 130 N. E. 330;Curran v. Chicago & Western Indiana Railroad Co., 289 Ill. 111, 124 N. E. 330;Jenkins v. La Salle County Coal Co., 264 Ill. 238, 106 N. E. 186.

The death of plaintiff's intestate was occasioned by an electric shock received while he was at the top of a 26-foot steel tubular pole owned and controlled by the defendant and from which was suspended an electric light used for the purpose of lighting Langley avenue, a public street in the city of Chicago. The pole was situated in the parkway space in the public street, at the curb. It rested in an iron collar about a foot from the ground. About 4 1/2 feet above the ground there was an opening in the pole, the exact size of which is not disclosed by the record. This opening had at one time been closed by a door. Nine feet and seven inches above the ground commenced a series of steps, which continued to the top. At the top there was a bracket, which extended horizontally over the street, and from it there was suspended an electric lamp. Two electric wires extended from the bracket to this lamp. The feed wire was fastened at the top of the pole, and extended in a northerly and southerly direction to other poles along the street, 125 feet north and south of the one in question. Where the wires were attached to the pole they had a weather-proofing covering, designed to preventcorrosion, but which did not prevent the escape of electricity, if grounded. While the record does not disclose the exact voltage of the electric current at the place of the accident, it is shown to have been more than ample to cause the death of a human being.

Before dark on the evening of August 28, 1924, plaintiff's intestate and other boys were playing ball in the vicinity of the pole in question. After dark they continued to play at other games. They had a quantity of street car transfers which they used as money, and a bet was made that plaintiff's intestate could not climb the pole and touch the lamp. He accepted the challenge. The testimony tended to show that he stepped first on the iron collar, then put his hand in the hole to assist in drawing himself up, put his knee in the hole, seized the step above, and made his way on the steps toward the top. When he was about three-fourths of the way up, one boy said: ‘You come down, Robert; it is dangerous up there.’ This advice was not heeded. He went on to the top, then started down, whereupon one of the boys below ‘hollered’ that he would not win the transfers unless he touched the light. Plaintiff's intestate then went back to the top, seized the wire beside the lamp, and fell to the ground. The evidence tends to show that boys had climbed the pole before, though there was no testimony that they had ever been seen around the top of it. A housewife in a nearby residence testified that on several occasions when she had seen boys on it she had warned them to get down.

The position of counsel for defendant in error (plaintiff below) is that defendant's liability herein is settled by the law of this state, citing particularly Deming v. City of Chicago, 321 Ill. 341, 151 N. E. 886, 887, and Stedwell v. City of Chicago, 297 Ill. 486, 130 N. E. 729, 731, 17 A. L. R. 829. In addition to these cases counsel cite several other Illinois cases, as well as several authorities from other jurisdictions.

Counsel for the city of Chicago take the position that the cases of Deming v. City of Chicago, supra, and Stedwell v. City of Chicago, supra, as well as other cases cited by defendant in error, are not in point, that no negligence on the part of the defendant was proved, and that plaintiff's intestate was injured solely be reason of being a trespasser on the pole, without being lured or invited thereon by attractive appliances. Defendant also complains of one of the instructions given, but in view of the conclusion of the court on the broader issue of the case it is unnecessary to consider this assignment of error. Defendant cites and relies strongly upon the cases of Howard v. St. Joseph Transmission Co., 316 Mo. 317, 289 S. W. 597, 49 A. L. R. 1034, and Water & Light Co. v. Webb's Adm'r, 129 Ky. 395, 111 S. W. 712,18 L. R. A. (N. S.) 179, 130 Am. St. Rep. 469, in both of which, under circumstances quite analogous to those in the present case, it was held that there was no cause of action.

In Deming v. City of Chicago, supra, a boy nine years old climbed a poplar tree to get a kite which had caught in the branches. The tree was growing in the street and its lowest limbs were 6 or 7 feet above the ground. About 20 feet above the ground, and about a foot from the trunk, two electric wires, a few inches apart, ran through the tree. The covering on these wires was worn off and for several years sparks had been seen in the tree. While among the branches the boy came in contact with one of the wires and was killed. This court said that there was sufficient evidence of negligence to justify submitting the case to the jury, stating: ‘Whether the tree located in the public street was so attractive to children in their sports as to suggest the probability of such an accident as occurred, and whether the city was negligent in maintaining the wires as it did, were questions for the jury.’

In Stedwell v. City of Chicago, supra, a wire was attached to brackets under an elevated railway structure where the latter ran over a public street. The elevated structure was supported by means of iron posts, on two sides of which crosspieces were attached from the foundation to the superstructure,giving the appearance of latticework. The wire passed within 10 inches of certain of these supports, about 13 feet above the the street level. It was covered with a weather insulating compound, designed for weather protection, but which was not sufficient insulation to protect persons. While playing ‘tag,’ a boy 11 years and 7 months old climbed up the latticework to the top, came in contract with the wire, and was severely injured. The court said: ‘The wire was 13 feet above the surface of the ground, and, it is argued, was not attractive to children; that if anything was attractive to them it was the latticed pillar of the elevated rairoad company. The pillar was there when the wire was strung by plaintiff in error, and the wire was placed within 10 inches of the top of the pillar. If the pillar, constructed as it was, presented an attraction and allurement to children to climb it in their play, and they did so use it in their childish sports, and plaintiff in error placed the dangerous wire in such close proximity to it that in its play a child might come in contact with the wire and be injured, the fact that the plaintiff in error did not construct or own the pillar would not, itself, relieve it from liability. Where an attractive thing is so located that in yielding to its allurement a child is brought in direct contact with a danger placed there by some one else, the person responsible for creating the dangerous condition will be liable.’

The emphasis placed in these two decisions upon the element of ‘attractiveness' or ‘allurement’ follows a consistent indication, running through all the cases in which this general question has been before this court, that the ‘attractiveness' or ‘allurement’ of the dangerous agency, or of other agencies in intimate juxtaposition to such dangerous agency, is of paramount importance in determining liability. Thus, in City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 486,27 L. R. A. 206, 45 Am. St. Rep. 114, cited by defendant in error, where a boy was drowned while playing around a pond, the court said: ‘The city authorities had been notified of its attractiveness to children, and of its dangerous character.’ The element of allurement was provided by the pond, containing floating logs. In Stollery v. Cicero Street Railway Co., 243 Ill. 290, 90 N. E. 709, 710, where a boy was killed by a dangerous machine, the court said: ‘Under the decisions of this state, unguarded premises supplied with dangerous attractions are regarded as holding out an implied invitation to children, which will make the owner of the premises liable for injuries to them even though the children be technical trespassers.’...