Reese v. Henck

• Decision Date: 30 June 1853
• Citation: 14 Ill. 482,4 Peck 482,1853 WL 4764
• Court: Illinois Supreme Court
• Parties: FREDERICK REESE, Plaintiff in Error,v.ANTON HENCK, impleaded, &c., Defendant in Error.

14 Ill. 482
1853 WL 4764 (Ill.)
4 Peck (IL) 482

FREDERICK REESE, Plaintiff in Error,
v.
ANTON HENCK, impleaded, &c., Defendant in Error.

Supreme Court of Illinois.

June Term, 1853.

ERROR TO COOK COUNTY COURT OF COMMON PLEAS.

THIS was an action of trespass on the case for damages, &c. It appeared that on the Sunday in question, to wit, the 21st June, 1852, the defendant, Henck, kept open a public garden in the city of Chicago, where the defendant, Jackman, was engaged in playing ball; and through his carelessness and misadventure, the ball went over the premises of Henck, into the adjoining street, and fell upon the head of the plaintiff's wife then passing by, and that in consequence of the blow, she died on the following day. Reese seeks to recover for his personal loss of the society of his wife, during the interim between the accident and her death, and the medical expenses attending her last sickness.

The court below, without some further evidence showing Henck's participation in the act; some concert with Jackman in the game played; or some further participation or encouragement than keeping the garden open on Sunday, instructed the jury that Henck was not liable, and refused to allow any evidence of damage to go to the jury.

Henck was the only defendant served with process.

The cause was heard before JOHN M. WILSON, Judge, at May term, 1853, of the Cook County Court of Common Pleas.

ARNOLD and LAY, for plaintiff in error.

T. HOYNE, for defendant in error.

CATON, J.

We are of opinion that the court erred in rejecting the evidence of damages, and in refusing to submit the case to the jury. The evidence showed that the defendant kept a public garden in Chicago, adjoining a public thoroughfare, in which he kept a bar where liquor was sold for his profit. That he invited people to come and play various games at ball in his garden, out of which he made a profit by selling liquor to the players. One of the games played consisted in throwing a large wooden ball, such as is used for playing ten pins, and the

[14 Ill. 483]

strife was to see who could throw it the furthest. There was no covering to the garden to prevent the ball from going over the fence, and the evidence showed that at least upon one previous occasion the ball had been thrown over the fence into the street. On the Sunday when the injury complained of was committed, there were many visitors at the garden, and the defendant was behind the bar, selling liquor to those playing at games and others...