Kahn v. James Burton Co.
| Decision Date | 11 January 1954 |
| Docket Number | Gen. No. 46067 |
| Citation | 1 Ill.App.2d 370,117 N.E.2d 670 |
| Parties | KAHN v. JAMES BURTON CO. et al. |
| Court | United States Appellate Court of Illinois |
Hinshaw & Culbertson, Chicago (Oswell G. Treadway, Chicago, of counsel), for appellant.
Crowe & Abrahamson, Chicago (Burt A. Crowe, Chicago, of counsel), for co-party appellant.
Louis G. Davidson, Chicago, for appellee.
Lee Roy Kahn, a minor, filed a complaint in the Superior Court of Cook County against James Burton Company, a corporation, Malkov Lumber Company, a corporation, Jacob, A. Krieger and Bessie Krieger to recover damages for injuries caused by the alleged negligence of the defendants. Issue was joined. A verdict was directed in favor of the Kriegers. The jury found the corporate defendants guilty and assessed damages at $20,000. Motions by each of these defendants for a directed verdict, for judgment not withstanding the verdict and for a new trial were overruled. Judgment was entered on the verdict. The corporate defendants have appealed.
Jacob A. Krieger and Bessie Krieger were the owners in joint tenancy of a vacant lot at 6642 South Richmond Street, Chicago. The lot, which faces east, has a frontage of 58 feet on Richmond Street and is 125 feet in depth. A north and south alley runs parallel to and west of Richmond Street. An east and west alley extending from the north and south alley to Richmond Street adjoins the lot on the south. Sometime prior to July 20, 1948, Jacob Krieger made arrangements with the James Burton Company to build on the lot a two story brick house will full basement. He dealt with William Lipman and Harold Lipman, officers of the company. Krieger is an uncle by marriage to William Lipman. Under a verbal agreement the Burton Company was to do everything except the mason and concrete work. Krieger had already made arrangements with a mason contractor to do that work. The plans for the house were completed and turned over to the Burton Company. Thereupon the mason contractor proceeded with the excavation work and poured the foundation. When the foundation and masonry work were completed, the masonry contractor notified Krieger that the carpenters could start. On July 19, 1948, Harold Lipman called the Malkov Lumber Company and ordered certain lumber to be delivered. For convenience, we will call the Kriegers the owners, the Burton Company the contractor, and the Malkov Lumber Company the supplier.
The contractor seldom built homes, its work being chiefly commercial and industrial. The contractor was to do the mason work. He could not spare the men to do that work and a new agreement was entered into whereby the owner would arrange for the masonry and brick work. When the brick work was up about 2 feet above the foundation so that the floor joists could go in, the contractor was to carry on. Thereupon the contractor called the supplier and ordered the joists and flooring. The supplier delivered the lumber on the lot on July 19, 1948. The order consisted of 2 pieces 2 X 10, 10 feet long; 12 pieces 2 X 10, 12 feet long; 14 pieces 2 X 10, 14 feet long; 50 pieces 2 X 10, 16 feet long and 267 pieces 1 X 6, 12 feet long. The delivery was made by its driver, Roscoe Hart. About 4:30 p. m. on July 20, 1948, plaintiff, then 11 years and 4 months of age, was riding his bicycle south in the public alley west of Richmond Street. His friend, Alphonse Mikszta, 9 years of age, was with him on his own bicycle. They had turned into the alley at 66th Street to get away from traffic. They had just been riding around. It was a clear day. As they came south they saw the lot and the house under construction and the materials lying about, which plaintiff had seen about a week previously. Alphonse did not recall whether he had observed it previously. Quite a few boys and girls were playing on the lot when plaintiff saw it previously, but he had not been there before.
As they came south in the alley on their bicycles both boys saw the conditions and observed the lumber located on the southwest part of the lot, near where the two alleys intersect. It had the appearance of the prow of a boat to their imagination. They left the alley, got off their bicycles and went over to the stacks of planking and climbed up on them, using the steplike formation created by the uneven piling of the boards to get up. The lumber pile extended lengthwise north and south about 3 feet west of the trunk of a tree, a branch of which extended west towards or over the pile. Plaintiff climbed up the south end of the pile, the easterly tier, and it felt solid to him. He stayed at the south end of the pile which he called the 'front' end. He had picked a piece of string off the ground near the lumber pile, and standing on the planking, reached up to tie one end of the string to a branch of the tree which was within reaching distance. He did not have to stretch. The condition was supposed to represent 'a bell, a toll bell or something' on a ship to plaintiff. To Alphonse, plaintiff was tying the string to the tree 'to dock the boat to.' As plaintiff stood on the east side of the pile and Alphonse on the west side, the east tier suddenly slipped out from underneath plaintiff, the planks gave way and fell and the lumber pile toppled over. Some of the boards under him went down, then he went down on top of those, then more boards and planks came down on top of him. So far as he knew he had not done anything in the way of moving around to knock the boards down or bump them over. He did nothing to disturb the boards or dislodge them before they fell. Mr. and Mrs. Madsen, who lived just to the north of the house under construction, ran out. Mrs. Madsen could not lift the heavy planks. Mr. Madsen, who found some heavy planks resting on plaintiff's back, removed the planks and released plaintiff. He was taken to a hospital for treatment of his injuries. The owners, who lived about a mile from the lot, did not see the lumber on the lot prior to the occurrence.
Roscoe Hart, the driver for the supplier, had no recollection of the delivery except that his name appeared upon the ticket. He was working for the supplier at the time. He had 10 years experience driving lumber trucks and had a uniform practice as to the manner in which he loaded and unloaded and never varied from that practice. The truck consists of a tractor and a 16 foot trailer. On the bed of the trailer are 4 metal rollers, operated by a ratchet wrench. There is a crank on the side of the truck. The lumber is loaded into the truck by laborers at the lumber yard. The lumber to be used last is put on the bottom of the load and that to be used first on the top. Crosspieces are placed in the load to keep the lumber from spreading from side to side. The lumber is then checked with the ticket. Two chains are then wrapped around the load and each is drawn tight and locked with a binder. The load that was delivered to the lot was 4 1/2 feet high and 6 feet wide. Its weight was 7 or 8 tons. On making delivery, a level spot for unloading is selected and 2 X 4's are placed on the ground to receive the load. By use of the crank on the side of the truck the load is moved back on the rollers until it is about half way off the truck. A chain is then thrown all the way around it and the lumber is bound together with a binder. The truck is then pulled from under the load and it comes down. The chain is then removed. The lumber is then in one pile, close together, and in the same relative position as when on the truck. Chains and binders used to hold the lumber together on the truck were removed after delivery and the lumber pile was left without any bracing or support. The lumber was placed on the southwest corner of the lot within 15 feet of the intersection of the two public alleys forming the west and south boundaries of the lot. The boards on top of the pile were larger than the lower boards. The driver was not provided with anything to brace or support the piled lumber. The usage employed in delivering this lumber is the general uniform practice of lumber dealers who make deliveries all over Chicago. The piled lumber apparently remained as delivered until the occurrence.
The plaintiff does not invoke the doctrine of attractive nuisance against the supplier, conceding that since it did not own of control the premises, that doctrine is not applicable to it. In support of its argument that the supplier owed plaintiff the duty, in piling and stacking its heavy planking, to exercise ordinary care for his safety and the safety of all others whose presence on the lot might reasonably be foreseen, plaintiff states that the evidence establishes that the supplier and its drivers should have reasonably anticipated that children might come upon the lot and upon the lumber pile. Plaintiff says that this defendant could have reasonably foreseen the during the summer vacation children might play around the house while it was under construction and that it was reasonably foreseeable that children might be injured in view of the dangerous and unsafe condition in which the pile was left. Pointing out that the pile was 4 1/2 feet high and not braced in any way, he states that the defendant erected a top-heavy structure which it failed to support or brace. In arguing that the clear preponderance of the evidence supports the judgment against the supplier, plaintiff asserts that the planking was left on the lot where no watchman was on duty in close proximity to public alleys and at a place where children had been playing in large numbers for weeks and where the defendant could have reasonably foreseen that youngsters might play.
Plaintiff had never played on the lot before the day he was hurt. He was not on the premises when the load of lumber was delivered and the supplier had no reason to anticipate that he would be there. This defendant was not in possession or control of the premises or of the pile of...
To continue reading
Request your trial