The City of Chicago v. Major

• Decision Date: 30 April 1857
• Citation: 18 Ill. 349,8 Peck 349,68 Am.Dec. 553,1857 WL 5582
• Parties: THE CITY OF CHICAGOv.JOHN MAJOR, Administrator of TIMOTHY MAJOR, deceased.
• Court: Illinois Supreme Court

18 Ill. 349
1857 WL 5582 (Ill.)
68 Am.Dec. 553
8 Peck (IL) 349

THE CITY OF CHICAGO
v.
JOHN MAJOR, Administrator of TIMOTHY MAJOR, deceased.

Supreme Court of Illinois.

April Term, 1857.

THE declaration in this case charges that Madison street, in the city of Chicago, was and is a common public highway and thoroughfare, of which the city had the care and management, and was bound to keep free and clear of and from all obstructions and hindrances to free passage. That on the 6th day of August, 1854, before that time and since, there was and stood upon Madison street, and opposite the entrance of another street, to wit, Franklin, a reservoir or tank, which the city had constructed for the collection of water for its uses and purposes, which reservoir was square in shape, constructed of wood, sunken to the depth of several feet below, and also elevated three feet above, the grade of Madison street, and contained water therein to the depth of seven feet. That it was the duty of the city to keep the reservoir well secured, and closed at the sides and covered at the top, for the security of persons passing thereby. Yet the said city, on the 6th day of August, and for a month previous thereto, permitted said reservoir to be, and continue to be, so defectively closed and protected on the sides thereof, and so insecurely covered, that, by reason of such insufficient covering and protection, one Timothy Major, of the age of about four years, on said 6th day of August, passing over and on Madison street, necessarily and unavoidably slipped and fell into said reservoir, and was

[18 Ill. 350]

therein drowned. That the parents of said Timothy, he being from his age incapable of using proper caution and diligence while on the street, were exercising, at the time, proper care and diligence with respect to him and his passing over said street. That afterward administration on the estate of Timothy Major was, in due form of law, granted to the plaintiff in this suit.

The second count of the declaration is substantially the same as the first.

The third count of the declaration is also in substance similar to the first and second counts, except that it does not allege the city constructed the tank, but that, standing on Madison street, it was the duty of the city to keep it in order. This concludes to the damage of the estate of Timothy Major $5,000.

To this declaration the city of Chicago put in the plea of not guilty, and a further special plea, to the effect that the city constructed the tank in a good and substantial manner, and securely and properly covered and closed the sides of the same, and that some person, unknown to the city, and without any authority from it, without its consent and knowledge, and without its being notified to the city, tore up and removed the covering of the tank, whereby it became unsafe, as alleged; nor was the city afterward notified of said covering being torn up or removed.

Issue was joined on the plea of not guilty, and a demurrer filed and sustained to the second or special plea.

Afterward, on 21st of November, 1856, in the circuit court, MANIERRE, judge, presiding, trial was had on the issue joined, and the jury returned a verdict for plaintiff, and assessed the damages at $800, whereupon the defendant moved for a new trial.

The court overruled the motion for a new trial, and rendered judgment on the verdict of the jury. Thereupon the defendant prayed an appeal to the supreme court.

The bill of exceptions shows the following proceedings on the trial:

Hugh Glassford testified that the tank stood near the south side of Madison, and at the termination or head of Franklin street. It was above the level of the street, and nearly level with the level of Madison street sidewalk, which it was close enough to for a person to step on from the sidewalk. The street crossings were twenty feet from the tank. It was four or five feet square; stood partly in the gutter on the side of Madison, and, owing to the slope of the gutter, was higher above ground next the sidewalk than on the side fronting Franklin. Recollects when Major's child was drowned

[18 Ill. 351]

in July or August. Was a good deal on Madison street, and noticed the tank, which was considerably out of repair, sometimes with the cover off, and sometimes with boards off the side. There were boards off the side three months previously to the death of Major's child, and was a dangerous place for children. The water in it probably twenty feet deep. The tank connected with subterranean aqueducts and supplied water for fires. The day Major's child was drowned the west side of the tank was open about two feet, and had been so two or three months. Can't tell of its condition on particular days. When I went there that day the cover had been removed for Major to fish in it for the child. The side next the sidewalk was open two feet, and was a place a child could readily fall in with some exertion on its part. The top of the tank a foot above the Madison street sidewalk. Think the child four years old.

DOCTOR BOONE: Am physician and surgeon. Went to Major's house, which is two hundred feet from the tank, and made efforts to resuscitate the child, but could not restore animation. Child died from drowning. Saw the tank; it was about as Glassford states; saw it after child was taken up. It stood partly in the gutter and ground sloped. Think a child could not get in it accidentally. Should hardly think that the ground pitched so that the child could get in without inclination or exertion of its own. Think the child could not fall in the tank from the sidewalk. A child could easily step up to the tank, whether the cover was off or on, and bend over it, if it chose. Think the child could get in at the side, where the boards were off, but hardly so without a will or effort of its own.

AUSTIN HYNES: Was coroner, and held an inquest on the child. Examined the tank at that time. Plank were off the west side, and left an opening in tank of eighteen or twenty inches at and next sidewalk; and, owing to the slope, this opening was wider at one end than the other. There was a strip of board, six or eight inches wide, across the top of the tank, under the cap, and then the opening of eighteen or twenty inches. Water in the tank not quite level with the street. The child could not fall in this opening without stooping and bending forward, on account of the cap piece of board at the top.

MRS. HAFFERT: Was standing at her door, in the alleyway between Wells and Franklin, day child was drowned. Went to the tank. Major and others were there. Lid was then turned up. Folks wanted Major to go down into the tank. He didn't seem to move quickly...