Ramsay v. Tuthill Bldg. Material Co.

• Decision Date: 21 December 1920
• Docket Number: No. 13435.,13435.
• Citation: 129 N.E. 127,295 Ill. 395
• Parties: RAMSAY v. TUTHILL BUILDING MATERIAL CO.
• Court: Illinois Supreme Court

295 Ill. 395

129 N.E. 127

RAMSAY

v.TUTHILL BUILDING MATERIAL CO.

No. 13435.

Supreme Court of Illinois.

Dec. 21, 1920.

Error to First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Hugo Pam, Judge.

Action by Gordon A. Ramsay, administrator, against the Tuthill Building Material Company. A judgment for plaintiff was affirmed by the Appellate Court, First Distrilct, and defendant brings certiorari.

Affirmed.John S. Huey and Weber, Miller, Donovan & Anderson, all of Chicago (Albert G. Miller, of Chicago, of counsel), for plaintiff in error.

Walter F. Cooling, of Chicago, for defendant in error.

DUNN, J.

William Walter Woods was killed on March 29, 1917, and Gordon A. Ramsay, as administrator of his estate, recovered a judgment against the Tuthill Building Material Company in the superior court of Cook county for $2,500 damages occasioned by his death. The judgment was affirmed by the Appellate Court, and a writ of certiorari was allowed to review the record.

On the trial the defendant made a motion at the close of the evidence to instruct the jury to find the defendant not guilty, which the court denied, and it is insisted that it erred in doing so; and it is also contended that the declaration was not sufficient in law to sustain the judgment.

The evidence introduced tended to show that the defendant maintained on its premises an elevated switch track, beneath which three bins were constructed in the trestlework for the purpose of holding sand, which was dumped into them from cars on a track immediately over them. The top of the bins was from 20 to 25 feet above the ground and the bottom about 8 feet. In the bottom of the bins were chutes by which the contents of the bins could be made to flow in various directions, which were closed by doors operated by a lever, and these chutes were used for emptying the sand into wagons beneath the bins. A ladder was placed at the end of the elevated structure, reaching from the ground to the top of the structure. On the day of the accident the deceased, who was 10 years, old, with his younger brother and another boy, climbed the ladder to the top of the structure and walked along the top about 50 feet. The bin there was nearly full of sand and the slide at the bottom was open, leaving an opening clear through to the ground. The deceased jumped into the bin to see if he would go through the opening and slid down through the opening, followed by a quantity of sand, which covered him and he was smothered and died. The premises were accessible from the street, and the children of the neighborhood were in the habit of going upon the premises, playing in the sand which they found underneath the structure, climbing the ladder, playing in the sand in the bins, and sliding down in the bins through the openings, which were about 18 inches square.

It is contended on the part of the plaintiff in error that the deceased was a trespasser on its premises, was not there by its invitation, express or implied, and that he was not attracted to the premises by any condition which was visible from the street.

The cause was tried on a single count which alleged that the defendant was in possession of certain premises adjoining two public highways in Cook county; that the premises were uninclosed and readily accessible from the highways; that the defendant was in possession and control of a certain elevated structure on said premises which contained various bins into which sand was unloaded from cars on a railroad on said structure; that in said bins were openings through which sand could pass to the ground, which were not securely fastened; that the defendant maintained a ladder by which children of tender years could ascend from the ground to said structure and from thence get into said bins containing sand; that said structure, ladder, railroad, and sand pile were plainly visible from said highways and were so located and maintained as to be attractive to children of tender years; that the sand was liable to run in various directions and to escape through chutes, traps, or openings; that for a long time children of tender years had been in the habit of resortingto said premises and playing under, upon, and around said sand, attracted and invited thereto by childish curiosity and instinct; that the defendant well knew all of the aforesaid facts, or would have known them by the exercise of ordinary care, and nevertheless negligently suffered th same to be and remain; that William Walter Woods was an infant 10 years of age, and was then and there, and throughout the occurrences narrated, in the exercise of ordinary care and caution for his own safety for a child of his age, experience, and capacity, and that his parents, who were the only persons charged with his care, custody and control, were at all times in the exercise of ordinary care for his safety; that he was then and there, at the invitation of defendant, playing upon, around, and under said structure and in and around said sand, attracted and invited thereto as aforesaid; and that by reason of the premises and said defendant's negligence he was then and there smothered in said sand, by reason whereof he then and there died.

The contention of the plaintiff in error is that this declaration does not state a cause of action; that it alleges no duty or obligation on the part of the plaintiff in error which it failed to perform, did not allege that any of the...