Wood v. Consumers Co.

• Decision Date: 04 June 1948
• Docket Number: Gen. No. 10201.
• Citation: 334 Ill.App. 530,79 N.E.2d 826
• Parties: WOOD v. CONSUMERS CO.
• Court: United States Appellate Court of Illinois

334 Ill.App. 530

79 N.E.2d 826

WOOD

v.CONSUMERS CO.

Gen. No. 10201.

Appellate Court of Illinois. Second District.

June 4, 1948.

Appeal from Circuit Court, Winnebago County; Wm. R. Dusher, Judge.

Action by Walter Wood, administrator of the estate of Walter Wood, Jr., deceased, against Consumers Company to recover for decedent's wrongful death. Judgment for plaintiff, and defendant appeals.

Reversed.

Wm. D. Knight, of Rockford, for appellant.

B. Jay Knight, Frederick H. Haye, and Thomas A. Keegan, all of Rockford, for appellee.

DOVE, Justice.

On February 17, 1946, Walter Wood, Jr., seven years old, was drowned in a pond located on a tract of land belonging to the defendant. Subsequently this action was brought by his father, as administrator of his son's estate, to recover for his alleged wrongful death. A jury trial resulted in a verdict and judgment in favor of the plaintiff for $5000 and defendant appeals.

The suit is brought upon the theory that the defendant maintained upon its premises an attractive nuisance and in this connection the complaint alleged that for many years the defendant owned a sizeable tract of land lying south and east of the city limits of South Beloit, Illinois and also owned necessary equipment which it used thereon for excavating from its premises quantities of sand and gravel; that as a result thereof piles of sand and gravel and large holes were left upon the premises; that many of the excavations so made were of a depth of thirty feet and water from springs and surface drainage accumulated therein to the depth of six to fifteen feet; that during the winter months ice and snow covered the surface of the banks and sides of these excavated portions of defendant's premises making them suitable for sliding; that on February 17, 1946 plaintiff's intestate, with his thirteen year old sister, went upon the premises of the defendant to slide; that plaintiff's intestate had no ice skates; that as a “consequence of the attractive and tempting northerly lake or pool of water thereon, which was unfenced and unguarded, and because of the tempting character of the sloping banks covered with ice and snow, plaintiff's intestate did, with his minor sister, proceed to slide upon said sloping banks of said pool of water and down the ice and while so upon said ice did fall through the ice and into said pool of water and he, together with his minor sister, were drowned.”

The evidence discloses that the tract of land of the defendant consists of approximately 200 acres, located south and east of the city limits of South Beloit, Illinois, a city with a population of thirty-five hundred people. The southerly boundary of South Beloit is Gardiner Street or Avenue. From this street to the north line of the property of the defendant it is about four hundred feet. The defendant has owned this property for at least twenty-four years and it mines, washes and grades sand and gravel therefrom. The property is improved with several buildings and equipment usual and common to the character of this business. Sand and gravel have been excavated through the years and two sizeable pools or ponds resulted from these operations. A railroad switch track intersects Gardiner Avenue and runs south into the premises and along the west side of the pool where plaintiff's intestate was drowned and there are also other switch tracks on the property. The automobile entrance to the property is known as the Washington Street entrance. This road is a private one and is so marked but it is used by the public generally. It leads into the area of the washing plant not far from the northern end of the north pond. This pond is 605 feet long and approximately one hundred feet wide at the widest place near the north end. At the south end it is about forty feet wide. From the WashingtonStreet entrance to the north end of the pond the distance is 607 feet and from the north end of the pond to the center line of Gardiner Avenue it is 1348 feet. Upon the west side of defendant's property is a bluff some thirty feet high. The pond is several hundred feet east of this bluff. The nearest streets to the west side of this property are Park Avenue and Lathrop Terrace. Lathrop Terrace is a dead end street and intersects Park Avenue and in order to reach defendant's property from this intersection or from any point on either of these streets it is necessary to go 150 feet across property not owned by the defendant. From this intersection to the north end of the pond it is 625 feet and to the south end of the pond it is 992 feet.

Walter Wood, Jr., lived with his parents on Gardiner Avenue. Their home faced the north and farming land is to the south. About one o'clock Sunday afternoon, February 17, 1946, Walter and his thirteen year old sister were seen playing in the snow in a lot immediately west of their home. So far as the evidence in this record discloses they were not seen by any one thereafter. Between nine-thirty and ten o'clock that evening, their bodies were recovered from a hole in the ice in this north pond at a point forty or fifty feet from the north end and about six or eight feet from the east bank. There were skate marks and tracks near by and toward the south end of the pond there were marks indicating that some one had been sliding down the slope or bank leading to this portion of the pond. The pond itself was partially frozen over and its banks and the ice on the pond were lightly covered with snow. At the Washington Street entrance and at several other places there were signs posted which read “Private Property, Keep Out.” If plaintiff's intestate and his sister left their home and went west along Gardiner Avenue and then turned south on Park Avenue and then entered the private road to the Washington Street entrance, the sign could have been seen. If they went west from their home to the switch track and then south along the right of way and then entered defendant's property or had they gone directly across the fields south of their home to the property of the defendant or had they entered from the east side similar signs were posted and may have been encountered. In going across the field south of their home they would have had to cross a barbed wire fence, railroad tracks, gravel and sand piles and gone down a rather steep bank in order to reach the north pond. The slope of the bank at the south end of the pond is not so steep. The banks were of such height that the pond could not be seen until one was rather close to it. It could not be seen from the Wood home or from Gardiner Avenue or from any public street. The evidence discloses that children had been near the pond to swim several years before and one witness testified that ten years before the trial of this case he and five other children were skating on this pond and there is some evidence that children did play in the piles of sand and gravel. Russell O. Webster, plant superintendent of the defendant for the past twenty years, testified that he had never had occasion to warn children from the pool and had never seen any children in or near the pond. Theron Carter, the plant foreman of the defendant for the past five years, testified that he never saw any children swimming in the pool, although he had seen them playing in the sand on defendant's property. Three employees of the defendant were working in and around the tool house near the north end of the pond the Sunday afternoon in question but no one of them saw any children on the premises that afternoon.

It was and is the theory of the plaintiff that this artificial pond was an attractive nuisance and that children played near it with the knowledge of the defendant; that therefore defendant must be held to have extended to plaintiff's intestate, upon the day in question, an invitation to enter, and having entered at the invitation of defendant, it was the duty of the defendant to exercise reasonable care for his safety and that reasonable care, under the circumstances, required it to guard, fence and police its premises and thereby protect the life of plaintiff's intestate. Counsel insist that whether this pond is or is not an attractive nuisance and whether that doctrine is applicable to this case and whether the defendant is guilty of negligence and whether the deceased and his parents were in the exercise of due care, were all questions of fact and the jury having resolved these questions in favor of the plaintiff, the judgment based upon those findings should be affirmed. In support of their contentions, counsel chiefly relies upon City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484,27 L.R.A. 206, 45 Am.St.Rep. 114, and cites, among other cases, Linnberg v. City of Rock Island, 157 Ill.App. 527;Cochran v. Kankakee S. and L. Co., 179 Ill.App. 437;Thomas v. Anthony, 261 Ill. 288, 103 N.E. 974;Howard v. City of Rockford, 270 Ill.App. 155 and Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482, 174 N.E. 577.

Counsel for defendant insists that the attractive nuisance doctrine does not apply to the facts as disclosed by the record in this case and therefore the trial court erred in denying its motions for an instructed verdict; that if the doctrine does apply the weight of the evidence is that defendant did not know that children were playing upon these premises and it never consented thereto and that there is no evidence in the record upon which an implied invitation to come upon the premises of the defendant could be based. Counsel further insist that the evidence discloses that plaintiff's intestate and his parents and next of kin were all guilty of contributory negligence and that the court erred in the admission of evidence, the giving of an instruction and that the verdict is excessive.

City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 486,27 L.R.A. 206, 45 Am.St.Rep. 114, is a leading case upon this subject. It was an action brought against the city of Pekin for negligently...