Kahn v. James Burton Co.

• Decision Date: 20 May 1955
• Docket Number: No. 33216,33216
• Citation: 5 Ill.2d 614,126 N.E.2d 836
• Parties: Lee Roy KAHN, Appellant, v. JAMES BURTON COMPANY et al., Appellees.
• Court: Illinois Supreme Court

Page 836

126 N.E.2d 836

5 Ill.2d 614

Lee Roy KAHN, Appellant, v. JAMES BURTON COMPANY et al., Appellees.

No. 33216.

Supreme Court of Illinois.

May 20, 1955.

Louis G. Davidson, Chicago, for appellant.

Crowe, Yates, Abrahamson & Fisk, Chicago (Burt A. Crowe, Chicago, of counsel), for appellee James Burton Co.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago (Oswell G. Treadway, Chicago, of counsel), for appellee Malkov Lumber Co.

KLINGBIEL, Justice.

Petition for leave to appeal from the First District Appellate Court has been granted. The Appellate Court decision reversed the judgment of the superior court of Cook County and remanded the cause with directions to enter judgment for the defendants, James Burton Company, a corporation, and Malkov Lumber Company, Inc., a corporation, and against the plaintiff, Lee Roy Kahn. Defendants, Jacob A. Krieger and Bessie Krieger, were not involved in any proceedings subsequent to entry of judgment in the trial court, the trial court having directed a verdict in their favor and plaintiff having assigned no error for such action. This suit concerns personal injuries received by a minor upon a vacant lot in Chicago owned by the Kriegers and upon which a two-story brick home was being constructed for them by the defendant James Burton Company, a construction company. The child was injured when a pile of lumber upon which he had been playing toppled over and certain boards of the pile fell upon him. The lumber was delivered by the defendant Malkov Lumber Company, Inc., on the day prior to the occurrence.

Plaintiff, a minor, eleven years of age at the time of the occurrence, instituted the action by his father as next friend. He is the appellant here and shall hereinafter be referred to as plaintiff. Defendant James Burton Company will hereinafter be referred to as the contractor, and defendant Malkov Lumber Company, Inc., will hereinafter be referred to as the lumber company, said defendants being the appellees in this court.

Plaintiff's amended complaint alleges ownership of certain land in the city of Chicago to have been in the Kriegers, July 20, 1948, at which time the contractor was constructing a home for them; that the lumber company had piled planks and lumber on the land which also had thereon sand piles and other items of building materials, machinery and equipment readily visible to children upon adjacent public highways; that said conditions tended to allure and attract them to the premises; that on the date of the occurrence and prior thereto children were attracted and played on the premises near the materials and equipment; that the lumber piles were left on the premises without adequate support and that while the eleven-year-old plaintiff, who had been attracted by the condition of the premises, was playing upon a lumber pile the same collapsed causing the serious injuries complained of. The usual allegations of plaintiff's due care for a child of his age, and proximate cause were made. The negligence charged was to the effect that the piles of lumber were permitted to remain in an unsafe condition without adequate support; failure to warn plaintiff of the danger of coming close to such piles of lumber and failing to take reasonable precautions to guard the premises in order to prevent children from coming into contact with the lumber piles as they allegedly existed. The defendants were charged with actual or constructive knowledge of the fact that the existent circumstances attracted children to the premises but failed to take reasonable measures to correct the alleged dangerous conditions.

The contractor denied plaintiff's allegations and also alleged that it was not in possession or control of the premises before and on the date of the occurrence. The lumber company denied plaintiff's complaint and charged plaintiff with negligence. A jury's verdict in the amount of $20,000 was returned in favor of plaintiff, and after the usual post-trial motions judgment was rendered thereon against the contractor and the lumber company.

The Appellate Court's opinion, reported in 1 Ill.App.2d 370, sets out the facts of the case in detail and no purpose will be served by further particularization. Only essential portions of the evidence will be dealt with herein. On July 20, 1948, plaintiff was a boy eleven years and four months of age. The Krieger premises were open, unenclosed premises, upon which their two-story home was to be constructed in a residential neighborhood in the city of Chicago. When the excavation was completed and the foundation had been poured, the masonry contractor notified Krieger that the carpenters could start their work. On July 19, an officer of the contractor ordered lumber from the lumber company and delivery was made on the same day. The order consisted of two pieces 2 X 10 ten feet long; 50 pieces 2 X 10 twelve feet long; 14 pieces 2 X 10 fourteen feet long; 50 pieces 2 X 10 sixteen feet long, and 267 pieces 1 X 6 twelve feet long. The delivery was made about 4:30 in the afternoon. The delivery and unloading were made in the usual and customary manner in accordance with the uniform practice in the city of Chicago. The load was conveyed by a tractor-trailer and the bed of the trailer had metal rollers operated by a ratchet wrench. The load was arranged so that when unloaded the lumber needed first would be at the top of the pile. Chains are wrapped around the load, drawn tight and locked with a binder and the load was four and one-half feet high and six feet wide. Upon finding a level spot the load is rolled half-way off and bound with a chain, two-by-fours are placed on the ground as cross-pieces and then the load is dropped from the bed of the truck which is approximately 4 feet from the ground. The entire load is approximately 7 or 8 tons and a single 2 X 10 sixteen feet in length weighs approximately 150 pounds. The truck driver testified an apron on the trailer kept the load from falling hard but that it dropped 2 1/2 feet from the bottom of the apron. The chains were removed after delivery and the lumber pile left without bracing or support. The lumber was placed on the southwest corner of the lot within 15 feet of the intersection of two public alleys. The boards on top of the pile were larger than the lower boards. There is no evidence as to any change in the pile from the time of delivery to the instant of the occurrence. On prior occasions several children had played on the mound of dirt thrown up by the masonry contractor. Plaintiff had never played on the lot before he and a companion stopped their bicycles and went upon the piled lumber on the day in question. In plaintiff's childish fancy the lumber pile resembled a boat. Plaintiff testified the prow of the ship was to the south and that there were two piles, the piles coming together and to a point at the southern end. Plaintiff climbed up the pile, using the steplike formation created by the uneven piling of the boards and remained on the south end of the pile. While reaching up to tie a piece of string to a branch of a nearby tree for the purpose of having a 'toll bell' the planks gave way causing plaintiff to fall, with some of the heavier planks falling upon him. Plaintiff stated he did nothing to disturb the boards or dislodge them before he fell and as far as he knew had done nothing in the way of moving around to knock the boards down or bump them over.

The Appellate Court held that as a matter of law the supplier of the lumber was not guilty of any negligence. It held there was no duty on the supplier to guard or protect the premises since it was not in possession or control thereof. The Appellate Court also found there was no proof that the lumber was unloaded at a place where children had been playing in large numbers but that the children had been playing on the mound of dirt thrown up by the masonry contractor and not where the lumber was deposited. It also pointed out that there was no evidence that any child was present at the time the lumber was unloaded or that the supplier had any knowledge that any children had ever played on the premises. The court then distinguished cases holding a liability where the injury occurred in a public street, where plaintiff could not be a trespasser, and not on private premises.

After a discussion of cases cited by plaintiff the court noted wherein they were distinguishable and then held as a matter of law that the supplier was not guilty of any negligence and that the trial court's judgment on the verdict should be reversed. The court in its opinion declared that the supplier owed the plaintiff no duty to stack the lumber in any particular way and further that there was no evidence from which it can be inferred that the lumber left on the premises by the supplier required any support or brace to keep it in position.

The lumber company contends in this court that it owned no duty to anyone other than the owners and the contractor, and that since it was not in possession or control of the premises it could not be held liable for the injuries to plaintiff. The position cannot be sustained. In so far as the lumber company is concerned plaintiff was not a trespasser; and if it should have reasonably anticipated that children might come upon the premises and be injured, the fact that it did not own or control the premises cannot relieve it from liability for the consequences of its negligence. Stedwell v. City of Chicago, 297 Ill. 486, 130 N.E. 729, 731, 17 A.L.R. 829. In the case cited the city owned an electric light wire strung on posts twenty-five feet in height. At a street intersection the wire passed under an elevated railway structure, and was fastened by brackets to steel posts supporting the structure. The wire at that point was about thirteen feet above the street. The posts and the crosspieces attached thereto were owned by a railroad, and not by the city. The plaintiff, a boy eleven years and seven...