Triolo v. Frisella

Decision Date03 August 1954
Docket NumberGen. No. 10733
Citation121 N.E.2d 49,3 Ill.App.2d 200
PartiesTRIOLO v. FRISELLA et al.
CourtUnited States Appellate Court of Illinois

Robert W. Kuebler and Stanley H. Guyer, Rockford, for appellant.

Knight, Haye & Keegan, Sam J. Cannariato, Mathew P. Cicero and Angelo N. Gaziano, Rockford, for appellees.


Plaintiff brought suit to recover damages for the alleged wrongful death of his son, a five and one-half year old minor. The single count under which the case was tried was in the usual form in an action for wrongful death and, in substance, charged the defendants with negligence in cutting down a tree, the complaint averring that the defendants negligently failed to trim, top, or otherwise treat said tree and negligently failed to choose and guide its direction of fall as a result of which it, in falling, broke a high tension electrical wire which entwined itself around deceased causing his electrocution and death. Each defendant was represented by separate counsel and the answers of each denied all the allegations of the complaint. The case was tried before a jury which returned verdict finding each defendant not guilty. Plaintiff's motion for a new trial was denied and from judgments entered on those verdicts the plaintiff prosecutes this appeal.

There is very little dispute as to the facts in this case. The deceased lived with his father and mother and baby sister in a house located on the west side of Court Street in Rockford. Court Street extends north and south. The intersecting east and west street to the north of deceased's home is Montague Street and the east and west street to the south is Knowlton Street. From the exhibits it appears that Knowlton Street is what is commonly referred to as a side street of a city in contrast to a main travelled throughfare. The house in which deceased lived is the second house north of Knowlton Street.

Defendant Paravala lived on the south side of Knowlton Street just west of Court Street. The coruer lot on the southwest corner of Knowlton and Court Streets fronts on Knowlton, has a house on it and is 75 feet wide. Paravala lived in the next house west and his lot is 50 feet wide. His house is set back from the sidewalk some distance. Defendant Frisella lived next door west of Paravala and defendant Cipolla lived next door west of Frisella. Defendant Cicero lived across the street. The defendants were all friendly neighbors.

On the morning of the occurrence, the father of deceased left for work early in the morning, leaving the deceased and his baby sister with their mother. Later that morning the mother went downtown to do some shopping and left deceased and his sister with her mother who lived in a flat upstairs. The grandmother had previously kept the children whenever the occasion required.

On the same morning defendant Paravala called upon his neighbors Frisella and Cicero to help him cut down a tree in his front yard. Defendant Cipolla later joined the group at Paravala's request. The tree in question was about 18 inches in diameter, 45 or 55 feet in height and was located about 25 feet south of the sidewalk and about 4 feet from the west property line of Paravala's lot. The front of Paravala's house was on south of the tree and except for the tree the front yard was open and unobstructed. Extending up and down Knowlton Street on the south side at the curb line were poles carrying electric light wires at a heighth of about 40 feet.

Admittedly none of the defendants had had any previous experience in cutting down a tree. Admittedly no topping or trimming of the upper branches was done. They commenced the operation by Paravala climbing a ladder and affixing a 100 foot clectric lamp cord some distance above the base of the tree. Paravala, Frisella and Cicero then started sawing and chopping on the west side of the trunk near the base. When the sawing and chopping were about completed Cipolla joined the group and he with Frisella, Paravala and an unidentified Negro started pulling the lamp cord to the east in order to drop the tree. Frisella testified that Cipolla did some chopping. Cipolla denies this.

During the course of the foregoing operations, the deceased was in the custody of his grandmother who was walking the two children back and forth from their house north to Montague Street. On a return trip to the house, she heard the phone ring and picked up the baby and went in to answer it. She left the deceased standing at the front door and was gone not to exceed two minutes. While she was inside the deceased wandered south to Knowlton Street, crossed the street and stood on the parkway about 25 feet west from the corner to apparently watch the tree fall. In this position he was approximately 100 feet east of the standing tree and completely out of range of any part of the falling tree. In addition the photographs disclose that there was another large tree standing in the front yard of the corner lot between him and the falling tree which further protected him.

As a result of the sawing and chopping and pulling the tree finally fell. Instead of falling east it fell in a northeasterly direction, striking and breaking the high tension electric wires. One end of the wire flipped around in the air and finally dropped on and encirculed the deceased electrocuting him and causing his death. Upon these facts the jury found defendants not guilty.

The first and major assignment of error has to do with the instructions. A total of 96 instructions were tendered to the court. The plaintiff tendered 15 and 3 were given; the defendant Paravala tendered 29 and 12 were given; the defendant Frisella tendered 28 and 5 were given; the defendant Cicero tendered 7 and all 7 were given; and the defendant Cipolla tendered 17 and 13 were given. Two additional instructions were given being the first two bearing numbers 1 and 42 which were cautionary, and the record does not show by whom these were tendered. Of plaintiff's three given instructions, two of them related solely to damages and the other set forth the provisions of the Wrongful Death Act, Ill.Rev.St.1953, ch. 70, §§ 1, 2. It is interesting to note the sequence of the giving of the instructions. The first two cautionary instructions were followed by plaintiff's three instructions. Then followed thirty-seven instructions for the defendants. Many of these were duplicates except that they were applied to different defendants. Many of the instructions repeated parts of other instructions which had been previously given. For example instructions number 27 and 38 are identical except that number 27 refers to one def...

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12 cases
  • Nelson v. Union Wire Rope Corp.
    • United States
    • United States Appellate Court of Illinois
    • January 4, 1963
    ...54, 118 N.E.2d 621; Kimmons v. Crawford, 92 Fla. 652, 109 So. 585.) Other cases cited to this point by plaintiffs are: Triolo v. Frisella, 3 Ill.App.2d 200, 121 N.E.2d 49 (a neighbor voluntarily assisting in the felling of a tree, negligently killed a child); and Banfield v. Addington, 104 ......
  • Nelson v. Union Wire Rope Corp.
    • United States
    • Illinois Supreme Court
    • March 18, 1964
    ...defendant's negligent performance of its gratuitous undertaking. The Smith, Pabst and Van Winkle cases, as well as Triolo v. Frisella, 3 Ill.App.2d 200, 121 N.E.2d 49, are a complete rejection of any concept that control of the premises where negligence occurs is essential to the liability ......
  • Chisolm v. Stephens
    • United States
    • United States Appellate Court of Illinois
    • March 30, 1977
    ...create a duty to be performed, but instead created a duty to perform, if at all, with due care. As stated in Triolo v. Frisella (1954), 3 Ill.App.2d 200, 207, 121 N.E.2d 49, 52: "The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exer......
  • Cincinnati Ins. Co. v. City of Taylorville
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 12, 1987 do anything, even gratuitously for another [is required] to exercise care and skill in what he has undertaken." Triolo v. Frisella, 3 Ill.App.2d 200, 121 N.E.2d 49 (1954). Thus, plaintiff argues that because the city "affirmatively undertook to fight the fire virtually from the minute it......
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