City of Pekin v. McMahon

CourtIllinois Supreme Court
Writing for the CourtMAGRUDER
Citation39 N.E. 484,154 Ill. 141
PartiesCITY OF PEKIN v. McMAHON.
Decision Date14 January 1895

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.


[154 Ill. 145]

[39 N.E. 485]

G. W. Cunningham, W. L. Prettyman, and Wm. Don Maus, for appellant.

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


[154 Ill. 142]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 [154 Ill. 143]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 [154 Ill. 144]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.

[154 Ill. 147]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 [154 Ill. 148]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,...

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128 practice notes
  • Lucas v. Hammond, 27014
    • United States
    • Mississippi Supreme Court
    • April 9, 1928
    ...have been prevented by locking the turntable, which could have been done at an inconsiderable expense. In City of Perkins v. McMahon, 154 Ill. 141, 39 N.E. 484, the city owned several lots partially inclosed where it dug sand and gravel. Rains had made a pond out of these holes, and in this......
  • City of Shawnee v. Cheek, Case Number: 2841
    • United States
    • Supreme Court of Oklahoma
    • December 23, 1913
    ...like Brown v. Salt Lake City, 33 Utah 222, 93 P. 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004; Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Indianapolis Water Co. v. Harold (Ind. App.) 79 N.E. 542; and Price v. Atchison Water Co......
  • Plotzki v. Standard Oil Co. of Ind., No. 28638
    • United States
    • Indiana Supreme Court of Indiana
    • June 2, 1950
    ...this case was wrongfully decided and is based upon the minority view originally stated in the case of City of Pekin v. McMahon, 1895, 154 Ill. 141, 39 N.E. 484, 27 L.R.A. 206, 45 Am.St.Rep. 114, which case has been many times severely criticized by the courts of other states. See Barnhart v......
  • Stark v. Holtzclaw
    • United States
    • United States State Supreme Court of Florida
    • July 25, 1925
    ...against the trespasses of children. See Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am. St. Rep. 106; City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Stendal v. Boyd, 73 Minn. 53, 75 N.W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597; Moran v. P......
  • Request a trial to view additional results
128 cases
  • Lucas v. Hammond, 27014
    • United States
    • Mississippi Supreme Court
    • April 9, 1928
    ...have been prevented by locking the turntable, which could have been done at an inconsiderable expense. In City of Perkins v. McMahon, 154 Ill. 141, 39 N.E. 484, the city owned several lots partially inclosed where it dug sand and gravel. Rains had made a pond out of these holes, and in this......
  • City of Shawnee v. Cheek, Case Number: 2841
    • United States
    • Supreme Court of Oklahoma
    • December 23, 1913
    ...like Brown v. Salt Lake City, 33 Utah 222, 93 P. 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004; Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Indianapolis Water Co. v. Harold (Ind. App.) 79 N.E. 542; and Price v. Atchison Water Co......
  • Plotzki v. Standard Oil Co. of Ind., No. 28638
    • United States
    • Indiana Supreme Court of Indiana
    • June 2, 1950
    ...this case was wrongfully decided and is based upon the minority view originally stated in the case of City of Pekin v. McMahon, 1895, 154 Ill. 141, 39 N.E. 484, 27 L.R.A. 206, 45 Am.St.Rep. 114, which case has been many times severely criticized by the courts of other states. See Barnhart v......
  • Stark v. Holtzclaw
    • United States
    • United States State Supreme Court of Florida
    • July 25, 1925
    ...against the trespasses of children. See Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am. St. Rep. 106; City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Stendal v. Boyd, 73 Minn. 53, 75 N.W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597; Moran v. P......
  • Request a trial to view additional results

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