McDermott v. Burke

• Decision Date: 17 December 1912
• Citation: McDermott v. Burke, 256 Ill. 401, 100 N.E. 168 (Ill. 1912)
• Parties: McDERMOTT v. BURKE.
• Court: Illinois Supreme Court

256 Ill. 401

100 N.E. 168

McDERMOTT

v.BURKE.

Supreme Court of Illinois.

Dec. 17, 1912.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; E. M. Mangan, Judge.

Action by John G. McDermott against Frank Burke.Judgment for defendant, and plaintiff appeals.Affirmed.

John P. Ahrens, of Chicago, for appellant.

Frank M. Cox and R. J. Fellingham, both of Chicago, for appellee.

CARTWRIGHT, J.

The appellant, John G. McDermott, suing by his next friend, brought this action on the case in the circuit court of Cook county against the appellee, Frank Burke, to recoverdamages for injuries to his left hand, resulting in the amputation of two fingers.The court, upon a trial of the issue formed by the declaration and a plea of the general issue, directed the jury to return a verdict of not guilty, which was done, and judgment was entered on the verdict.The Appellate Court for the First District affirmed the judgment, and granted a certificate of importance and an appeal to this court.

The declaration charged the defendant with negligence in permitting the doorway of a building in the course of construction to be open and not barricaded, and a cable and sheave, operated by horse power and used in hoisting material from one floor to another, and which were attractive to children, to be exposed and not guarded or shielded so as to prevent children from having their fingers cut off thereby, and alleged that the plaintiff entered the building and placed his left hand on the cable while it was not in operation, and the cable and sheave were suddenly and without warning to him started, whereby his hand was injured.

The evidence most favorable for the plaintiff tended to prove the following facts: On the northwest corner of Van Buren street and Albany avenue, in Chicago, there was a parish school, attended by from 1,000 to 1,500 children, and the building stood back 6 feet from the street line of the avenue.North of the school building there was an open space of 16 feet, and next north of that open space the Servite Fathers of West Chicago were erecting a parish hall standing 14 feet back from the street line of the avenue, with a frontage of 100 feet on the avenue and a depth of about 125 feet.The defendant was contractor for the masonry and brickwork on the parish hall, which was to be three stories high when completed.The walls had been laid to the tops of the windows of the second story, and brick and mortar were being elevated from the first floor to the second floor.There was a cable running over a sheave or grooved wheel and operated by horse power for hoisting the brick and mortar to the second floor.A man led the horse back and forth, and, when one elevator went up, another came down, and such action was frequent.Teams hauled in sand through the back door and deposited it near the center of the building, making a sand pile there, near a mortar bed.The brick were unloaded in the street in front of the building and were wheeled in through a door, which was left open.

[1] According to the testimony of the plaintiff, the sheave was within 12 or 15 feet of the sand pile, and his testimony is to be taken as true, although a number of witnesses for the defendant testified that it was 30 or 40 feet from the sand.On September 9, 1908, plaintiff was attending the parish school, and it was the third day after the school commenced.The children were let out for the noon recess at half past 11, and the plaintiff, who was seven years old, went into the building and played on the sand pile for a short time.There were about 14 children playing there when he left the sand pile and went to the sheave and cable, and put his hand on the cable.When the horse started the cable to elevate material, his hand came between the cable and sheave, causing the injury.

[2] Preliminary to the question whether the court erred in directing a verdict, it is insisted that there was error in not permitting the plaintiff to prove what there was across Albany avenue and across Van Buren street, for the purpose of showing that there was no playground for the children except the streets and sidewalks.The plaintiff was permitted to prove the location of the schoolhouse, the open space in front of it, the space between it and the parish hall, the width of the street, and that there were derricks across the street.All that was material was the location of the building with reference to the street or some public place where children had a right to be, and the fact that there was no playground did not impose any duty on the defendant to furnish one inside of the building.The court did not err in excluding any further evidence on the subject.

[3] It is next urged that, inasmuch as the court refused to direct a verdict at the close of the plaintiff's evidence, the court must have weighed the evidence and decided upon the...