Richardson v. Nelson

• Decision Date: 17 April 1906
• Citation: 221 Ill. 254,77 N.E. 583
• Parties: RICHARDSON v. NELSON.
• Court: Illinois Supreme Court

221 Ill. 254

77 N.E. 583

RICHARDSON

v.NELSON.

Supreme Court of Illinois.

April 17, 1906.

Appeal from Appellate Court, First District.

Action by Axel E. Nelson, by his next friend, against Samuel Richardson. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.James B. Muir, Millard F. Riggle, William S. Newburger, and Alfred Livingston, for appellant.

M. J. Moran (Gallagher, Fiske & Messner, of counsel), for appellee.

BOGGS, J.

The appellee, who sued by his next friend, Otto Nelson, recovered a judgment against the appellant in an action on the case in the superior court of Cook county in the sum of $1,500. This is an appeal from a judgment of the Appellate Court for the First District affirming that of the superior court.

Appellant was the owner of a three-story brick building at 473 West Ohio street, in the city of Chicago. The building in which appellee resided was next to, but separated from, the building belonging to the appellant by a passageway four feet in width. In January or February, 1901, ice accumulated around and about the gutter pipe or downspout of appellant's building and formed a mass of ice about 20 inches in diameter, and overhung the upper windows of the building in which appellee resided. Appellant was notified several times before the accident that the ice was accumulating on his building, and that it was dangerous to the people living in the building on which it had accumulated and in the building in which appellee resided. The appellant promised to attend to it, and did, on one occasion prior to the accident, have a man put salt on the ice, but did nothing further about it. On March, 10, 1901, the mass of ice fell a distance of five or six feet to and against the building in which the appellee lived and crashed through a window near which the appellee was standing. A large piece of ice, weighing about 20 pounds, struck appellee's foot and injured it, and his face and hands were cut by the broken glass.

At the close of all the evidence appellant asked the court to peremptorily instruct the jury to find the defendant not guilty. The refusal of the court to give the instruction is not argued, but is assigned for error in the brief of appellant. There is an abundance of evidence in the record tending to prove the facts to have been as stated hereinbefore, and we think the court properly refused the instruction.

The contentions of the appellant that the appellee was guilty of contributory negligence, and also that the father, who was in charge of the appellee, was guilty of contributory negligence, are questions of fact which were finally determined by the jury and the judgment of the Appellate Court. Furthermore, the defense of contributory negligence was not available in this case; the appellee at the time of the accident being an infant one year and nine months of age. Prior to the age of seven years a child is incapable of such conduct as will constitute contributory negligence, and the negligence of the parent of a child of tender years who is injured by the negligence of another cannot be imputed to the child so as to support the defense of contributory negligence to his suit for damages. Chicago City Railway Co. v. Tuohy, 196 Ill. 410, 63 N. E. 997,58 L. R. A. 270.

It is claimed there was a variance between the declaration and the proof, in that the declaration alleged the ‘defendant was the owner and in care, custody, and control of the building,’ while the proof showed that each flat in the building was rented. There was also evidence tending to show that the appellant was the owner and in control of the building, as alleged in the declaration. If the alleged variance was material, it should have been called to the attention of the trial court, but this was not done. Such an objection comes too late when raised for the first time in the Appellate Court. Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 34 N. E. 801,37 Am. St. Rep. 191;Harris v. Shebek, 151 Ill. 287, 37 N. E. 1015.

It is insisted that the court erred in admitting evidence that windows in a building other than the one at which the appellee was injured were broken by the falling ice, and that the ice, in falling, broke three or four boards out of a platform leading into the appellant's building, and in admitting a certified copy of a deed showing the ownership of the premises from which the ice fell. The objection was that the evidence was immaterial and irrelevant. The damage done by the falling ice tended to show the force with which the ice fell, and the certified copy of the deed tended to show the ownership and control of the property by the appellant at the time of the accident.

Appellant complains of the exclusion of the following question propounded to a witness on cross-examination: ‘Suppose the ice had been removed from the gutter pipe, wouldn't it be liable to accumulate again there?’ It is argued that, ‘if it would have been of no avail to remove the ice, there was no negligence in permitting it to remain.’ We fail to appreciate the force of this argument. The evidence was immaterial.

Lydia Crozier testified that she saw the appellee playing about his home some time after receiving the injury, and, in response to a question asked by the appellant stated: ‘He walked the same as any other child would.’ This answer, on motion of appellee, was ordered to be stricken out by the court. The witness afterwards, in her testimony, stated that she saw appellee playing and did not notice anything the matter with him. Dr. Schiller also testified that he saw the appellee walk, and that he walked normally. Therefore the appellant had the benefit of the evidence, and the alleged error in striking it out was harmless in character.

Complaint is also made that the court refused to compel the appellee to submit to an examination,...