The City of Chicago v. Wash. Hesing

• Decision Date: 30 September 1876
• Citation: 25 Am.Rep. 378,83 Ill. 204,1876 WL 10320
• Parties: THE CITY OF CHICAGOv.WASHINGTON HESING, Admr. etc.
• Court: Illinois Supreme Court

83 Ill. 204

1876 WL 10320 (Ill.)

25 Am.Rep. 378

THE CITY OF CHICAGO

v.WASHINGTON HESING, Admr. etc.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action on the case, by Washington Hesing, administrator of the estate of Max Werner, deceased, against the city of Chicago, to recover damages caused by the death of the intestate through negligence on the part of the city.

Mr. EGBERT JAMIESON, for the appellant.

Messrs. LEAKE & VOCKE, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was to recover damages resulting to the next of kin to Max Werner, who came to his death by drowning in a ditch filled with water, in a street immediately in front of the residence of his parents. Deceased was less than four years old, and while his mother was engaged with her ordinary labor, he left the house and, in some manner not explained, fell into the ditch, and was not rescued until life was extinct.

No negligence is imputable either to the deceased or his parents. The child was too young to observe any care for its personal safety, and its parents omitted no reasonable care for its protection. The parents of the child are laboring people, and had to be constantly employed. When the accident occurred, the father was at work in a lumber yard not far distant, and the mother was engaged in her usual domestic affairs. The law has not required that persons in their station in life shall keep a constant watch over their children, nor can the want of such care be imputed to them as negligent conduct. The former decisions of this court are conclusive on this branch of the case. City of Chicago v. Major, 18 Ill. 349; Chicago and Alton Railroad Co. v. Gregory, 58 Ill. 226. It is suggested the mother was guilty of negligence or some omission of duty after she discovered her child was in the water, in not rescuing it sooner. We do not think so. On discovering the condition of her child, she gave the alarm, and her neighbors came to her assistance. It may be she did not act as many would have done under the circumstances, but it could not be expected she would act with that calm and deliberate judgment persons would exercise under no excitement The physician described her, on his arrival a few moments after the accident, as bereft of her senses, holding her dead child in her arms and refusing even to allow him to touch it. Under the circumstances, it would be most unreasonable to declare she was guilty of contributory negligence because she may not have adopted the speediest and best way to extricate her child on the instant she discovered the appalling fact of its peril. Such a conclusion would be abhorrent to our sense of justice.

But most important of all inquiries in the case is, whether defendant was guilty of negligence that contributed to produce the death of plaintiff's intestate. On this point we think there can be no doubt. This ditch was in the street, bordering on the sidewalk, which was very narrow, was in front of the residence of the parents of deceased, was filled with water to the depth of near five feet, and was without guards of any kind whatever to prevent children or other persons from falling into it. It was situated in the midst of a dense population, and had been there so long the city officers must have been perfectly familiar with its location and existence. Unless protected by suitable guards, it was a most dangerous place. It was gross negligence in the city to permit the existence of anything so dangerous in a public street much frequented, where the slightest indiscretion on the part of a child...