Collins v. City of Chicago

• Decision Date: 14 December 1943
• Docket Number: Gen. No. 42088.
• Citation: 321 Ill.App. 73,52 N.E.2d 473
• Parties: COLLINS v. CITY OF CHICAGO.
• Court: United States Appellate Court of Illinois

321 Ill.App. 73

52 N.E.2d 473

COLLINS

v.CITY OF CHICAGO.

Gen. No. 42088.

Appellate Court of Illinois, First District, Second Division.

Dec. 14, 1943.

Appeal from Circuit Court, Cook County; John T. Cummings, Judge.

Action by Jerry R. Collins, a minor, by Howard L. Collins, his father and next friend, against the City of Chicago, to recover for injuries sustained by the minor when a flare near a ditch exploded. From a judgment for plaintiff, defendant appeals.

Affirmed. Barnet Hodes, Corp. Counsel, of Chicago (James A. Velde, Paul A. H. Shults, and John F. O'Malley, Asst. Corp. Counsel, all of Chicago, of counsel), for appellant.

H. H. Patterson and Norman Peters, both of Chicago (Edmund C. Maurer, of Chicago, of counsel), for appellee.

SCANLAN, Justice.

In an action to recover damages for personal injuries sustained by plaintiff, a minor, a jury returned a verdict finding defendant guilty and assessing plaintiff's damages in the sum of $20,000. Defendant's motions for a directed verdict, for judgment notwithstanding the verdict, and in arrest of judgment were overruled and judgment was entered upon the verdict. Defendant made no motion for a new trial. Defendant appeals.

This case seems to have been well tried and the many points usually raised in personal injury cases are not raised here.

In the latter part of October, 1938, the Water Pipe Extension Department of Chicago commenced the installation of a new water main in the west parkway of South Kolin avenue from 26th street to 24th place. Starting at 26th street and proceeding north, an excavation, approximately thirty inches wide and six feet deep, was made in the parkway. At the time of the accident, November 3, 1938, the excavation had “only reached 25th Street.” The accident happened at 25th place, which is halfway between 25th street and 26th street. The ditch was open in the parkway, which is located between the west curb of Kolin avenue and the sidewalk, no part of the ditch being in the part of the street reserved for vehicular traffic, except the excavation in 25th place, where the accident happened. Part of the ditch near 26th street, where the pipe had already been put in, had been “filled back.” There was a public school and playground at the northeast corner of Kolin avenue and 25th place. After supper on November 3, 1938, Jerry R. Collins, the plaintiff, then eight years old, and who lived near by, at 2652 Kolin avenue, went to play with a friend, Richard Schreiner, then ten years old, in the school playground, which had swings, slides, basketball baskets, etc., for the use and amusement of the children, and which was kept open in the evening until nine o'clock. On that evening “there were a lot of boys and girls” playing there. Plaintiff and Richard left the playground about 8:30 o'clock and crossed Kolin avenue. Plaintiff testified that there was a ditch there and some lanterns; that he did not see any wooden barriers; that on the other side of the sidewalk there were wooden horses, but not around this hole; that “these lanterns and the hole attracted us there and we thought we would play there for a while. I had never played there before;” that he and Richard went into the ditch and put sticks into the dirt around the sides and played a game that they called airplane; that the ditch at that place was “sort of cross-shaped;” it was about four feet deep and about up to his shoulders; that they put sticks in the walls and played that the sticks were airplane controls; that after they played airplane for a while they got out of the ditch and saw that one of the lanterns was not lit and Richard got a stick and tried to light it on a flare that was standing in the street; that they were both out of the ditch when this happened. “Q. And what did Richard do? A. He got a stick and he was trying to light it and this flare upset and it exploded. * * * Q. What, if anything, did you hear? A. It was sort of a hollow sound went off. Q. And when that happened, what did you see, what happened to you? A. There was a burst of flame, and I caught on fire and I jumped back and I fell in this hole. Q. And what, if anything, did you feel when this sound was heard? A. Well, there was some liquid was spread on me, then I caught fire.” The witness further testified that before that night he had been by this ditch when he went to the playground but that he had never played in it. “Q. What have you seen around there before? The Witness: I saw some boys were playing around there sometimes and they were lighting paper sticks from the fire on the flares.” Upon cross-examination the witness stated that on that evening before they went into the playground he saw boys playing around this ditch; that there were no lights in the ditch; that the lanterns and torches were on the dirt that had been spilled out from the ditch. Richard Schreiner testified that he called for Jerry at his home and they went to the playground, where they played on the slides; that there were many boys about his age playing there; that to reach the playground they had to cross Kolin avenue; that when they left the playground about 8:30 o'clock it was dark; that at Kolin avenue and 25th place they were “putting some kind of water pipes in” on the west side of Kolin avenue; that he and Jerry went to the hole on the northwest corner “out in the street;” that the hole at that place “was like a cross, and we were playing airplane there;” that they “stuck sticks inside the ground and alongside of the hole, and played for controls and things like that;” that while they were playing they saw that a kerosene lantern was unlit and they climbed out of the hole and found some sticks and tried to light that lantern, which was on a wooden horse alongside the sidewalk; that he got a twig and tried to light it on a flare which was standing alongside the curb in the street; that the flare was lighted. “Q. And just tell all of us here what happened. A. Well, I got the stick and I tried to light it on the--on that flare, and it didn't, of course, so I tried it again, and then that flare accidentally tipped over, and a burst of flame came from the flare, and I jumped over a dirt pile, and Jerry jumped back and fell in the hole and caught on fire. Q. What, if anything, did you hear when this happened? A. Like a bang, a noise.” The witness further testified that he tried to toss dirt on Jerry, who was in the hole, and then a man in a car came up and tossed dirt on Jerry and then the man went to the back of his car, got out a blanket and wrapped it around Jerry; that before that evening “the kids on the block played there,” “the kids were digging holes, you know. There was a long hole, then they started digging another hole, then they used these flares. They got paper and made torches out of it, and they have lights;” that before that evening he had seen a watchman around there but not that night; that from the time they started playing until Jerry was taken away he did not see the watchman; that at other times before the evening of the accident he had seen the watchman “walk along Kolin Avenue, where the ditches were, and chase the kids away.” Upon cross-examination the witness stated that he did not know what caused the flare to tip over; that neither he nor Jerry kicked it over and that the twig did not tip it over; that he and Jerry were kneeling on the ground at the time the flare tipped; that about two days before that evening he had lit paper from the flare but that he did not tip the flare; that the unlit lantern was right near the flare; that before he tried to light the stick he had opened the top of the lantern in order to light it; when the flare tipped over it did not stay tipped but “went back again.” Richard Jouza testified that he lived on 25th place about three or four houses from Kolin avenue; that he knew plaintiff but did not see the accident. “Q. What had you seen children doing there on the night before this boy was hurt? A. Well, lighting torches, running around, playing and all sorts of things. Q. Lighting torches from where? A. From oil lamps, Q. And torches, what do you mean by that? A. Well, take long sticks and wrap paper or something around them, and stick them in the fires, and run around with them. Q Fire from where? A. From the oil lamps. Q. Well, what kind of lamps do you mean? You mean a lantern? Do you mean a lamp or a flare, or what do you mean? A. It is a square sort of--I don't know what you call them. Q. Those open flares? A. Yes, sir. Q. Had you done that yourself? A. Yes, sir. Q. And had you seen other children do it? A. Yes, sir.” Upon cross-examination the witness testified that the watchman “was around there sometimes. I hardly had seen him though. * * * He was a stout man. * * * Q. And when he came around, you ran away from those torches, didn't you? A. Yes, sir.” Anton Motycka testified that he lived at 2213 South 56th avenue, Cicero, and for eighteen years had been engaged in the fruit and vegetable business; that about 8.30 o'clock on the evening in question he was driving east on 25th place in his automobile and as he approached Kolin avenue and 25th place he noticed the excavation and then he saw a burst of flames flare up into the air from the excavation; that he stopped when he reached the spot, jumped out of his car, “looked down into the hole and there was a boy on fire;” that he then dragged, pulled the boy out of the pit; that he was burning from the waist up, and “when I got him out of the hole I stood the boy up and the flames were shooting from his waistline to about three feet over his head. I tried to get the flames out with loose dirt that was there from the pit but it didn't work, so I thought of my robe in the car and I ran to the car and grabbed that robe and put it over the boy's head and smothered the flames;” that he, the witness, “called for help, but nobody showed up;” and that he then put the boy in his car and took him home. Upon...