Stollery v. Cicero & P. St. Ry. Co.

Decision Date04 February 1910
Citation90 N.E. 709,243 Ill. 290
CourtIllinois Supreme Court
PartiesSTOLLERY et al. v. CICERO & P. ST. RY. CO. et al.

OPINION TEXT STARTS HERE

Appeal from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; M. W. Pinckney, Judge.

Action by Arthur G. Stollery and another, administrators, against the Cicero & Proviso Street Railway Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.John A. Rose and Frank L. Kriete (W. W. Gurley, of counsel), for appellants.

David K. Tone and H. M. Ashton, for appellees.

CARTER, J.

This is an action of the case brought in the circuit court of Cook county against appellants for wrongfully causing the death of appellees' intestate, a boy about 10 years of age. A judgment was obtained in the trial court for $4,000 which the Appellate Court affirmed, and this appeal followed.

The appellants occupied in Oak Park, Ill., a block bounded by Lake street, Harvey avenue, North boulevard and Cuyler avenue. On the southeast corner of this block was the power house of appellants. West of the southern portion of the power house was a building called the coal bin. At the north end of the coal bin was a frame made of timbers 10 inches square which carried and supported certain sprocket wheels about 31 inches in diameter, with teeth some 3 1/2 inches in length, forming a part of a coal conveyor. Operating upon these sprocket wheels were two endless chains, between which ran strips of metal, which scraped and carried the coal from the coal bin to the boiler room in the power house. This framework, with the sprocket wheels, was outside the buildings,unprotected, in plain view from the street, access to it from the streets being open and unobstructed. Plaintiffs' intestate was last seen alive on the afternoon of March 2, 1904. On March 4 he was found dead, his arm and clothing caught between one of the sprocket wheels and an adjacent beam of the supporting framework about 3 feet from the ground. When found, his body was frozen, his clothing torn, and one side of his face was worn away, apparenly by the rubbing of the sprocket wheel.

The declaration alleges and the evidence tends to prove that this dangerous machinery was left unguarded and unprotected in a thickly-settled neighborhood, on land that was unfenced; that appellants knew that children had been in the habit of playing about said machinery, and that while in the exercise of ordinary care for his own safety, appellees' intestate was caught by said sprocket wheel and killed on March 2, 1904.

At the close of the plaintiffs' evidence, and again at the close of all the evidence in the case, appellants asked the court to instruct the jury to find a verdict in their behalf. These instructions were refused. Appellants contend that there is no evidence justifying the verdict-first, because it does not appear that the negligence alleged and proved was the proximate cause of the death; second, because it does not appear that deceased was in the exercise of reasonable care; third, that it does not appear that the child was attracted by said machinery; and fourth, it does not appear that appellees' intestate died from injuries sustained by him from said conveyor.

Under the decisions of this state, unguarded premises supplied with dangerous attractions are regarded as holding out an implied invitation to children, which will make the owner of the premises liable for injuries to them even though the children be technical trespassers. Whether or not such premises are attractive to children is a question for the jury. City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484,27 L. R. A. 206, 45 Am. St. Rep. 114;Siddall v. Jansen, 168 Ill. 43, 48 N. E. 191,39 L. R. A. 112;True & True Co. v. Woda, 201 Ill. 315, 66 N. E. 369. While in an action of this nature the burden is upon the plaintiff to show the exercise of ordinary care to avoid the injury, to prove this, however, does not require direct evidence as to the injuries, but such care on his part may be inferred from the facts and circumstances in the case. Where there is no eyewitness to the killing of a person, his administrator may establish the exercise of ordinary care on the part of the deceased by the highest proof of which the case is capable, including the habits of deceased and any other facts and circumstances from which the jury might rightfully find that he was exercising such care. Collison v. Illinois Central Railroad Co., 239 Ill. 532, 88 N. E. 251;Chicago & Alton Railroad Co. v. Wilson, 225 Ill. 50, 80 N. E. 56,116 Am. St. Rep. 102;Illinois Central Railroad Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358;Baltimore & Ohio Southwestern Railway Co. v. Then, 159 Ill. 535, 42 N. E. 971;Chicago, Burlington & Quincy Railroad Co. v. Gunderson, 174 Ill. 495, 51 N. E. 708;Illinois Central Railroad Co. v. Cozby, 174 Ill. 109, 50 N. E. 1011.

The proof tends to show that the conveyor was run intermittently as coal was needed in the power house; that about 40 feet from this framework there was a well on these premises, to which children were in the habit of coming for water; that on March 2, between 1 and 2 o'clock in the afternoon, a playmate of appellees' intestate, who was at this well for water, saw him near the north end of the framework, the conveyor at that time being stationary; that a few minutes later she looked towards the conveyor and it was moving, but she did not then see the boy. He was not seen from that time until his body was found by a policeman on March 4. He was an intelligent and ordinarily careful boy, and could easily, when the machinery was not moving, have climbed on the framework, which was only 3 feet from the ground. The mother of appellees' intestate was a widow, who had moved to a house near the power plant the day before the accident. Counselfor appellants contend that there is no evidence that she had looked for the boy after had disappeared on March 2, and therefore they argue that she had not used due care in attending to him. We think there was such evidence. There was also evidence tending to show that the death was caused by the conveyor, and not, as contended by counsel, that it was caused by other means and the body afterwards placed where it was found. The conveyor was set in motion soon after appellees' intestate was seen standing by it. He was never seen again alive. The position of his body and condition of his face and clothing would indicate that he was caught by the sprocket or chain and thereby forced into the position in which he was found. The argument of counsel that if the body had been there from March 2 until March 4 it...

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28 cases
  • Lucas v. Hammond
    • United States
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    ...bark and refuse away. Union P. R. Co. v. McDonald, 152 U.S. 262, a slack pit near the common passway that led to a mine. Strollery v. Cicero St. R. Co., 243 Ill. 290, affirming 148 Ill.App. 499, a coal conveyor consisting of endless chain running in a trough and over sprocket wheels, used t......
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    ... ... Public Service Co. 342 Ill. 482, 174 N.E. 577; Stollery v. Cicero & Proviso Street Railway Co. 243 Ill. 290, 90 N.E. 709, or, even in the absence of a dangerous attraction, where the owner knows that small ... ...
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    ... ... cause that should relieve respondent from liability." ...          In ... Stollery v. Railway Co., 243 Ill. 290, 90 N.E. 709, ... a boy of 10 years was killed, and his body found beside a ... conveyor operated by defendant on a ... ...
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