Cicero State Bank v. Dolese & Shepard Co.

• Decision Date: 30 January 1939
• Docket Number: Gen. No. 40205.
• Citation: 18 N.E.2d 574,298 Ill.App. 290
• Court: United States Appellate Court of Illinois
• Parties: CICERO STATE BANK v. DOLESE & SHEPARD CO.

298 Ill.App. 290

18 N.E.2d 574

CICERO STATE BANK

v.DOLESE & SHEPARD CO.

Gen. No. 40205.

Appellate Court of Illinois, First District, First Division.

Jan. 16, 1939.

Rehearing Denied Jan. 30, 1939.

Appeal from Superior Court, Cook County; Peter H. Schwaba, Judge.

Action by Cicero State Bank, administrator of the estate of Lottie Jerzak, deceased, against Dolese & Shepard Co., a corporation, for the death of Lottie Jerzak. From a judgment for plaintiff, defendant appeals.

Affirmed. Howard & Greene, of Chicago (H. L. Howard, of Chicago, of counsel), for appellant.

Julius H. Selinger and Julius T. Skrydlewski, both of Chicago (Julius H. Selinger, of Chicago, of counsel), for appellee.

McSURELY, Presiding Justice.

On July 17, 1933, Lottie Jerzak, a month over 14 years of age, was drowned while on the premises of the defendant; the administrator of her estate brought suit alleging that defendant owned and possessed certain premises used as a dumping ground for waste material; that water to the depth of forty feet had accumulated on the premises on which were floating planks, scum and other objects; that the premises were attractive to children of tender years and that plaintiff's intestate was attracted to the negligently unguarded water hole and while at play she fell into the water and was drowned. Upon trial the jury found defendant guilty and assessed plaintiff's damages at $4,000. Judgment for this amount was entered and defendant appeals.

The premises on which this accident happened covered a large area at the western boundary of the City of Chicago; the place was originally a quarry operated by the defendant, but for some years prior to the accident had been used as a dumping ground for garbage and refuse.

The premises extended south from 30th street to 33rd street, about three city blocks, and west from 46th avenue to 48th avenue, about two city blocks; garbage had been dumped on the premises for some years before and it had been filled up except about a square block in the middle of the premises; this hole was filled with water on which was floating all kinds of rubbish which at some places became thick enough to form a scum or muddy soft ground; there was no regular roadway across the premises; the eastern boundary was the railroad tracks of the Belt Line railroad and the M. & I. railroad; east of these tracks was 31st street running east and west, and the pavement and sidewalk on 31st street stopped some distance east of the Belt Line tracks, but the evidence shows that people wishing to cross defendant's premises would cross the railroad tracks and walk on what might be called an extension of 31st street across the property going west.

The trucks of the concerns dumping garbage at this place in 1933 would enter a gate on the west side and drive into the premises in an easterly direction; the garbage would be dumped at the edge of the water hole and part of it would roll down the embankment into this hole and part of it would remain on top, from where it would be shoved by a tractor over the embankment down into the water hole; the embankment was from 8 to 12 feet higher than the water hole and extended east and west for a distance of a city block, not in a straight line, but jagged. There was evidence that below this embankment, at the north edge of the water hole was a strip of water, but there is a conflict in the evidence as to whether it was all open water or partly covered with scum and rubbish; the water varied in depths at different places but is described as “deep”.

Lottie Jerzak, the deceased, was living at home with her mother, a widow, on west 39th street; she was having her vacation from grammar school where she had just graduated. Lottie, with her sister Sophie, then 12 years of age, and a neighbor, Florence Noga, 11 years of age, decided to go to this garbage dump to look for toys. This was a customary thing for the children in the neighborhood to do. The path or driveway was used generally by people in the community desiring to cross the premises; from this pathway running across the premises the dumping into the water hole was visible and accessible; in the material brought by the trucks and dumped were toys, dolls and bright, shiny metals, and the evidence shows that children customarily went to the place of the dumpings to salvage such articles.

The deceased, with the two other girls, had crossed over the railroad tracks onto defendant's premises at about 31st street and walked first in a westerly direction and then southwesterly towards the water hole; they picked up some toys and then proceeded down the embankment to the level of the water hole. Except for the strip of water the surface of the water at this point was covered with a scum, which witnesses said looked like the pathway on which people walked. One witness said “It appeared to be ground”. Another witness testified that the scum at this point was about a foot and a half thick. The girls walked in single file over this place, unaware of the danger. The deceased led the way when “the ground beneath her gave way and she fell into the water”. Sophie, who was following, tried to reach her sister, but she also sank into the scum and water, as did the third member of the party, Florence Noga. Men nearby, hearing their screams, went to the scene and succeeded in rescuing Florence Noga and Sophie Jerzak, but Lottie sank into the water and her body was not recovered until two days afterwards.

Defendant first says that the attractive nuisance doctrine does not apply to a child 14 years of age. The attractive nuisance doctrine rests upon the proposition that it applies to children of such tender years that they cannot be guilty of contributory negligence as a matter of law. Defendant cites Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, 149 N.E. 23, as holding that as a matter of law the attractive nuisance doctrine cannot be applied to the case of a child above the age of 14 years. That case was not an attractive nuisance case. The negligence charged was the failure of the defendant to comply with a fencing ordinance and the...