Wolczek v. Pub. Serv. Co. of Northern Illinois

• Decision Date: 15 February 1931
• Docket Number: No. 19138.,19138.
• Citation: 174 N.E. 577,342 Ill. 482
• Parties: WOLCZEK v. PUBLIC SERVICE CO. OF NORTHERN ILLINOIS.
• Court: Illinois Supreme Court

342 Ill. 482

174 N.E. 577

WOLCZEK

v.PUBLIC SERVICE CO. OF NORTHERN ILLINOIS.

No. 19138.

Supreme Court of Illinois.

Dec. 18, 1930.

Rehearing Denied Feb. 15, 1931.

Error to Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; E. S. Smith, Judge.

Suit by Walter Wolczek, by his next friend, against the Public Service Company of Northern Illinois. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.

Reversed and remanded for a new trial.

FARMER, J., dissenting.Gardner, Foote, Burns & Morrow, of Chicago (Walter M. Fowler, of Chicago, of counsel), for plaintiff in error.

John A. Bloomingston, of Chicago, for defendant in error.

STONE, J.

Defendant in error, by his next friend, filed in the circuit court of Cook county his suit for damages for personal injuries sustained by reason of an electric shock and burns received by him while on one of the high-voltage electric line towers of plaintiff in error. The injury occurred on May 1, 1925, at which time he was eleven years of age. The jury assessed his damages at $30,000. Judgment entered thereon was affirmed by the Appellate Court for the First district, and the cause is here on writ of certiorari.

The action is based on two counts of the declaration. These charge that at the time of the injury the defendant negligently maintained an attractive nuisance in the form of an unguarded steel tower supporting uninsulated wires which carried a high voltage of electricity through a forest preserve of Cook county where children were known to play, and that the defendant knew, or should have known, that this tower was attractive and alluring to children. It is charged that the defendant failed to exercise ordinary care to guard and protect the towers and wires so that children of tender years could not climb upon the structures and reach the wires, which it was alleged were rendered accessible by the structure and a ladder thereon. The second count also charged negligence on the part of the defendant in failing to insu late the wires.

The undisputed evidence shows that plaintiff in error in 1916 erected this tower and others on a right of way which it purchased through a farm of approximately 137 acres, which farm was in 1922 purchased by the forest preserve district of Cook county. Hightension wires carrying 12,000 volts of electricity were strung on these towers. The lowest wire was 36 feet from the ground. Access to this 137-acre forest preserve was had by a road entering from Halsted street and passing at the time of the accident within a few feet of the base of the tower on which the accident occurred. The tower was erected on a concrete base about 3 1/2 feet square. The tower had four main columns or legs. These four legs were constructed of V-shaped galvanized steel called ‘angle iron.’ This angle iron measured 3 1/2 inches on each side or face, and was of a thickness of fivesixteenths of an inch. Horizontal braces connected them about 2 feet from the concrete base, and above those braces strips of V-shaped steel or angle iron, designated in the record as ‘struts,’ ran diagonally at an angle of 45 degrees from one leg to another on each side of the tower to the top of it. Each of these struts was 4 1/2 feet long, measured 2 1/2 inches on each side or face, and was of a thickness of about one-fourth of an inch. They were so attached to the legs of the tower that the outside of the angle pointed away from the tower. The distance along one leg of the tower from the point where a strut joined it to the point where the next strut joined the same leg was 6 feet. The other end of the first-mentioned strut was attached to the other leg on the same side of the tower at a point 3 feet above the point of attachment of the strut to the first mentioned leg. About 14 feet above the ground on one of the legs a ladder was formed by fastening to it loops made of small iron bars. This ladder extended to the top of the tower. The tower carried three crossbars, the first of which was 36 feet from the ground. On those crossbars, and attached thereto by insulators, were strung the wires. The wires were a little less than 2 feet from the side of the tower. The right of way of the plaintiff in error was not fenced, and the tower here involved bore no danger sign, though the evidence shows that one had been put on it and later taken off while the tower was being painted and not reattached to it. There were five of the diagonal struts on each side of the tower between the ground and the first step of the ladder.

On the day of the accident nine children, including defendant in error, composed a party who went into the forest preserve for a picnic. There were three boys and six girls. The children entered the preserve along the road referred to, passed the tower to a cleared space, where they ate their lunch. The evidence of the children showed that they played games and climbed trees and had started home when they came to this tower. The oldest member of the party, George Stevenson, a boy twelve years of age, climbed to the top of it twice. While he was on the tower the second time, defendant in error commenced to climb it. He testified that he climbed the struts by placing his feet on the lowest diagonal one and holding onto the second one with his hands until he reached it with his feet and then continued to climb in the same way until he reached the ladder. He also testified that it was not hard to climb. The Stevenson boy testified it was ‘kind of’ hard because there was no ladder. Four of the girls in the party testified to climbing the struts of the tower. Luch Marabain, at that time thirteen years of age, testified that, when they saw what she characterized the ‘big pole,’ they started to have some fun on it, and were climbing up and down having some fun on it; that three or four of the girls were climbing on the tower that day, and she testified she climbed about 8 feet from the ground and climbed three of the iron bars (evidently meaning struts), and that there were three or four of the girls about as high as she was. Roxey Marabain, then nine years of age, testified that they were playing around the tower when defendant in error and the Stevenson boy went up to the top; that the girls were hanging around the tower and just climbing up because it was easy to climb; that she did not think any of them knew it was dangerous; and that she did not, at least. Dorothy Stevenson, then ten years of age, testified that the girls were all climbing up on the tower except the two little girls; that they were climbing it just for fun; they were climbing about two irons away from the bottom, ‘just monkeying around on the iron cross-bars'; that she did not get as high as the ladder. Jeanette Van Soest, then eleven years of age, testified she was climbing up the pole when Walter (the defendant in error) was hurt; that she had climbed to the third bar on the tower.

The evidence of these children shows that, when defendant in error had climbed to a point near the first wire, he put up his hand while calling to them, and they saw a flash and heard a loud report, and he fell to the ground. The evidence shows that he was seriously injured. His right arm was so badly burned that it became gangrenous and had to be amputated near the shoulder, and he received severe other burns on his chest and feet and injury to his heart. Thomas Little, a caretaker for the forest preserve district, testified that he had seen children climbing on the tower at different times and playing around in the vicinity of the tower; that there is a playground close by the tower; that the children he had seen were climbing around the lower part of the tower; and that he told them to get off at different times, but that he had never seen any of them climb as high as the ladder. He was not present on the day of the accident. He also testified that he did not notify plaintiff in error of what he had seen.

Plaintiff in error contends, first, that the court erred in refusing to instruct the jury to return a verdict for the defendant,for the reason that there was no evidence to support the charge that the tower was an attractive nuisance, and therefore no evidence of negligence on the part of plaintiff in error, and that there was no evidence of the exercise of due care on the part of defendant in error; second, that errors occurred on the trial of the cause requiring a retrial.

The first question is whether the evidence of the plaintiff, when considered with all its reasonable inferences and intendments, in its aspect most favorable to his case, tended to support the charges of the declaration. This evidence has been briefly set out in this opinion.

The law fixes a different standard of liability in case of injury to children going upon premises where there is a dangerous agency attractive to children than that which applies to adult persons. Where the owner creates upon his premises a dangerous object which from its nature and location has a tendency to attract onto the premises children who from childish instincts are drawn into the danger, the law requires such reasonable precautions as the circumstances admit of to prevent them from playing with the thing or to protect them from injury from it. It is likewise the rule that the owner of private grounds is under no obligation to keep them in any particular state or condition to promote the safety of trespassers, intruders, idlers, bare licensees, or others who come upon them without invitation, either expressed or implied. This rule applies equally to adults and children. Follett v. Illinois Central Railroad Co., 288 Ill. 506, 123 N. E. 592;McDermott v. Burke, 256 Ill. 401, 100 N. E. 168. The owner of land, however, who allows children to play on his premises, must use ordinary care to keep the premises in a safe conditión, for the children, being without judgment, are likely to be drawn by...