Heimann v. Kinnare

• Decision Date: 18 April 1901
• Citation: 190 Ill. 156,60 N.E. 215
• Parties: HEIMANN v. KINNARE.
• Court: Illinois Supreme Court

190 Ill. 156

60 N.E. 215

HEIMANN

v.KINNARE.

Supreme Court of Illinois.

April 18, 1901.

Appeal from appellate court, First district.

Action by Frank T. Kinnare, as administrator of the estate of Casimir Wojciechowski, against Ferdinand Heimann. From a judgment in favor of plaintiff affirmed by the appellate court (92 Ill. App. 232), defendant appeals. Reversed.

Loesch Bros. & Howell, for appellant.

J. G. Grossberg and Claudius Peters, for appellee.

HAND, J.

This is an action on the case, brought in the superior court of Cook county by the appellee, as administrator, against the appellant, to recover damages for negligently causing the death of his intestate. The declaration contains three counts. The first count charges that the defendant was the owner of certain premises located in said county, on which there was a certain dangerous hole of great depth, to wit, of 24 feet, hidden from view, and which was filled with water and covered with ice, on and to which the public had free access; yet the defendant, well knowing the matters aforesaid, wrongfully and unlawfully kept said hole so insufficiently guarded, covered, and protected that by reason thereof said intestate, who was using all due care and caution for his own safety, in passing over said premises, without any fault or negligence on his part, unavoidably slipped and fell into said hole, and was then and there drowned. The second count charges that the defendant, being the owner of said premises, had caused a dangerous hole to be made thereon, and permitted water to accumulate and remain therein, so that it became and was a nuisance, and was dangerous to the lives of children of tender years, incapable of exercising ordinary care and discretion, who might be attracted thereto, and that it became and was the duty of the defendant to cause the same to be drained so as to remove the water therefrom, which he wholly failed and neglected to do; that, the water in said hole being partially frozen over, the decedent, a child of tender years and incapable of exercising ordinary care and discretion, was attracted thereto, and without any fault or negligence on his part fell into said hole and was drowned. The third count charges that the defendant, being the owner of said premises, caused a dangerous hold or pit to be made thereon, and permitted water to accumulate and remain therein, so that it became and was a nuisance, and was dangerous to the lives of children of tender years, incapable of exercising ordinary care and discretion, who might be attracted thereto; that it was the duty of the defendant to cause said hole or pit to be safely guarded and inclosed, so as to render it reasonably inaccessible to children of tender years; that the defendant neglected and failed to cause the said hole or pit to be so safely and securely inclosed, and that the same was wholly uninclosed and unfenced, and open and accessible to children; that, the water in said hole or pit being partially frozen over, the decedent, a child of tender years and incapable of exercising ordinary care and discretion, was attracted thereto, and without any fault or negligence on his part, or the part of his parents, fell into said hole or pit, and was then and there drowned. The defendant pleaded the general issue. A trial resulted in a verdict in favor of appellee for $600, upon which verdict, after overruling a motion for a new trial, the court rendered judgment, which judgment has been affirmed by the appellate court for the First district; and, a certificate of importance having been granted, a further appeal has been prosecuted to this court.

The defendant introduced no evidence, but at the close of the plaintiff's evidence moved the court to withdraw the evidence from the jury, and instruct them to find for the defendant, which the court declined to do, to which action of the court in that behalf the defendant excepted. The evidence for the appellee shows that on December 25, 1893, the decedent, a boy between 13 and 14 years of age, in company with his brother, who was between 15 and 16 years of age, went to a clay hole, known as ‘Heimann's,’ located upon a 40-acre tract of land situated in the city of Chicago, bounded by Southport, Ashland, Wrightwood, and Diversey avenues, for the purpose of ascertaining if the ice thereon was strong, said hole being about 150 feet by 200 feet in dimensions, and located about 100 feet from Southport avenue. It was partially filled with water, which was frozen over. As the boys drew near the clay hole, the decedent started ahead of his brother on the run, and, without stopping, dashed down the incline to the ice, about 35 feet below, jumped over an open space of water around the edge of the ice, and ran or slid out towards the middle of the hole or pond, when the ice gave way, and, the water being over his head, before help could reach him he was drowned. The decedent had resided in the vicinity of this clay hole for a number of years, had been in the habit of fishing and swimming therein during the summer time, and skating thereon during the winter, and had skated thereon two days prior to the accident. The brother of the decedent, who was the only one present at the time of the accident, testified: ‘The time my brother was drowned he was between thirteen and fourteen years old, attended school, and had never worked. My brother swam in this hole. We could not touch the bottom when we were swimming. He used to go to swim in this hole with me or the other boys two or three times a week for a year or more. From the top of the bank it was about thirty-five feet down to the water. There was a hill sloping down. My brother was about twenty-five feet ahead of me. He was running fast. I did not see him go down the bank. The ice was broken around the bank. He had to jump over the water to get on the ice. My brother said to me that morning, ‘Come; let's go and see if the ice is strong.’ We went there for that purpose. We were outside, snowballing, and he said, ‘Let's go and see if the ice is strong.’ There was a lot of water on the ice,-about one-half inch or an inch; somewhere around an inch and sometimes two inches. The water extended from the shore about three or four feet. The ice was not broken; it was just rotten. There was water on it, and the water ran through the ice. It was broken around the shore. It was thin. Out in the middle it was two inches thick. When he got to the ice, he slid out on the ice, and then he went down.'

If the decedent had been an adult, it is admitted no recovery could have been had under the circumstances of this case, as it is conceded that the general rule is that the owner or occupant of land, as against trespassers, is not required to keep his premises in a safe condition, and that if a person goes upon such premises to gratify his curiosity, or for pleasure, without invitation, express or implied, he does so at his peril, and, if injured while so doing, he can only recover for the gross negligence or wanton conduct of the occupant or owner. It is, however, said that a child between 13 and 14 years of age does not possess the same discretion and judgment as an adult, and that while the decedent may have been a technical trespasser, yet if the owner of said clay hole left the same exposed and unguarded, and the decedent, by reason of his tender years and inexperience, was attracted thereto for the purpose of skating thereon, a recovery may be had if he exercised such reasonable care as one of his age and capability might be expected to exercise under the circumstances, and that whether he exercised such care is a question to be determined by the jury under the...