Kerr v. Forgue

• Citation: 1870 WL 6363,54 Ill. 482,5 Am.Rep. 146
• Parties: ANDREW KERRv.BENJAMIN FORGUE.
• Decision Date: 30 September 1870
• Court: Supreme Court of Illinois

54 Ill. 482

1870 WL 6363 (Ill.)

5 Am.Rep. 146

ANDREW KERR

v.BENJAMIN FORGUE.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Kankakee county; the Hon. CHARLES H. WOOD, Judge, presiding.

The opinion states the case.

Mr. W. H. RICHARDSON and Mr. C. A. LAKE, for the appellant.

Mr. MASON B. LOOMIS, for the appellee. Mr. JUSTICE THORNTON delivered the opinion of the Court:

This was an action on the case, commenced by appellee against appellant, for negligence in placing counters and barrels on the public street, by means whereof the son of appellee was injured. A trial by jury was had below, and plaintiff recovered a verdict for fifty dollars.

The proof shows that appellant, prior to the injury, had placed upon the sidewalk, in Kankakee City, a number of barrels and counters, in a tottering condition, and occupying a considerable portion of the walk; that one of the counters was eighteen or twenty feet in length, and that these obstructions interfered with a safe passage after night.

The son was, at the time of the injury, about twelve years old, lived with, and worked for, his father, and was worth from fifty to seventy-five cents per day, and at the time of the injury was going from his work to dinner. In passing he put his hands upon the counter, apparently making a motion to jump on it, when it fell on him, fracturing the right leg. The physician's bill, and expenses in caring for him in his sickness, were proved to be fifty dollars.

Errors are assigned upon the modification of the following instructions, asked by appellant:

“1. The court instructs the jury that the proofs should support the allegations of the declaration, and if the allegation in the plaintiff's declaration is, that the plaintiff's son was injured while he was using due care, and if you believe, from the evidence, that he did not use due care, (modified as follows here: that is, such care as a boy of his age and discretion would naturally do,) then the proof does not support the allegations, and the law is, in such case, for the defendant.

2. If the injury happened by and through the negligence of the boy and defendant, equally, then the law is for the defendant. (Modified as follows: But in determining the negligence of the boy, you must take into account his capacity, for he can not be required to exercise as much care and caution as a person of mature years.)

4. If the jury believe, from the evidence, that the negligence of the plaintiff's son David was gross, (here modified as follows: judging him not by the standard of a man, mature, but as a boy,) and that the negligence of the defendant was slight, then, in that case, the law is for the defendant.

5. If the jury believe, from the evidence, that had plaintiff's son David used ordinary care, (modified as follows: that is, such care as a boy of his age and discretion would naturally use,) the injury complained of...