151 N.E. 886 | Ill. | 1926
This cause is here on certiorari to review a judgment of the Appellate Court affirming a judgment of the superior court against the city of Chicago for $10,000 in an action arising out of the death by electric shock of James L. Morris, Jr.
June 9, 1922, James L. Morris, Jr., a boy nine years and seven months old, was living with his father and mother and two younger brothers at 3437 North Claremont avenue, Chicago. Near his home was a poplar tree growing in a grass plot in the public street, where it had been for a number of years. It was about thirty or forty feet high, the lowest limb being six or seven feet above the ground. About twenty feet above the ground and about a foot from the trunk of the tree two wires about twelve inches apart ran through the branches of the tree. These wires, used by the city to carry electricity for lighting the streets, were *343 insulated with a composition cover, designed more for the protection of the wires from corrosion than for insulation. There were long spaces on the wires where the covering was worn away by contact with the branches of the tree. These wires carried 3150 volts of electricity. For several years sparks were frequently seen in the tree, particularly after a rain. About eight o'clock in the evening James was playing with other boys on the grass plot in the street. One of the boys was flying a kite, which became caught in the branches of the poplar tree and its tail wrapped around the wires. The owner of the kite left for home, saying that whoever wanted the kite could have it. James then climbed the tree for the purpose of getting the kite, and while he was in the tree attempting to get the kite he came in contact with one of the wires and was instantly killed.
This injury occurred in a tree in a public street and the deceased was, therefore, not a trespasser at the time he was killed. (Stedwell v. City of Chicago,
Plaintiff in error says that "contributory negligence is the outstanding feature of this case." The law is clearly established by great weight of authority that the question of culpability of a child between the ages of seven and fourteen is an open question of fact and must be left to the *344
jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. (Maskaliunas v.Chicago and Western Indiana Railroad Co.
Plaintiff in error complains of the following instruction given on behalf of defendant in error:
"The statute of the State of Illinois provides that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, and in every such action the jury may give such damages as they *345 shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person not exceeding the sum of ten thousand dollars."
This instruction is substantially in the language of the statute authorizing the action and fixing the limit of liability. It merely informs the jury that the right to maintain an action for the wrongful death of a person is granted by statute and that the limit of the recovery is $10,000. Where an instruction is given in the language of a statute which is pertinent to the issues it must be regarded as sufficient. Laying down the law in the words of the law itself ought not to be pronounced error. (Greene v. Fish Furniture Co.
Complaint is made of an instruction given on behalf of defendant in error which is substantially the same as instruction No. 2 considered and approved in Baltimore and OhioSouthwestern Railway Co. v. Then,
Another instruction is criticised by counsel for plaintiff in error because in referring to deceased it uses the word "child," the contention being that a boy nine years and seven months old is no longer a child. We are not impressed with this hypercritical argument.
We have considered all of the questions which were presented to the Appellate Court. Questions raised for the first time in this court will not be considered. United States Wringer Co. v.Cooney,
All questions of fact have been concluded by the judgment of the Appellate Court, and finding no errors of law in the record we affirm the judgment.
Judgment affirmed. *346