Donk Bros. Coal & Coke Co. v. Leavitt
109 Ill. App. 385
Ill. App. Ct.
1903
Check Treatment
Mr. Presiding Justice Bigelow

delivered the opinion of the court.

Thаt the Supreme Court of this state has gone farther with reference to placing duties upon owners and occupants of dangerous premises, when children non sui juris are involved, than the deсisions of many courts will warrant, is admitted by both the court itself and by text writers. City of Pekin v. McMahon, 154 Ill. 141; Siddall v. Jansen, 168 Ill. 43; 1 Thompson’s Commentaries on Law of Negligence, Secs. 1030-1037. Mo court has held that a child less than three years of age is anything in the eye of the law except non sui juris, or even that the capacity of a child of that age with reference to matters of care or negligence, should be submittеd to a jury. See the same volume of Thompson’s work above quoted, Sec. 310. Before the law, a child of such tender age can not of its own volition acquire the status of being either a tеes passer, a visitor or a licensee, nor are we referred to any authority which gives the mother, or father, or any other custodian of the child, power to fix its status before the law, when the rights of the child itself are concerned. The doctrine of imputed negligence has been repudiated in this state. Chicago City Railway Company v. Wilcox, 138 Ill. 370.

The cause of action in this cаse is grounded upon the child’s own rights; for the action is given, “ 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 an action and recover damages in respect thereof.” Chapter 70, Sec. 1, Starr & Curtis’ Statutes.

The evidence in this case, particularly since appellant offered no evidence to the contrary, justifies the conclusion that appellant knew children were in the habit of making the locus in quo a playground; thаt the natural instincts of the child caused it to lift the cover by means of the projecting handle, from its place in the platform, to discover what might be hidden thereunder. It is common knowledge that in this way the curiosity of children becomes satisfied and they begin to learn of objects which surround them. In such state of the proof, the allegation of the declaration that the place “ wаs a dangerous structure to children of tender years who might be attracted thereto,” was fully proven, and the submission of that issue of fact to the jury by appellee’s instructions was fully justified by the law as lаid down in the cases heretofore cited from the Supreme Court of this state.

“ The question whether a defendant has or has not been guilty of negligence, in a case of such an accidеnt upon his land to a child of tender years, is for the jury. Involved in this question is the further question whether or not the premises were sufficiently attractive to entice children into danger and to suggest to the defendant the probability of the accident; and therefore such further question is also a matter to be determined by a jury.” City of Pekin v. McMahon, supra.

The law of this state recognizes the “ attractive nuisance ” doctrine, so far as children are concerned, whether they are of sufficient age to have some degree of .discretion or not, ‍‌‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌​​‌​​‍and the consequent duty of defеndants to guard such structures or agencies that no harm shall come to those who are physically and mentally incapable of taking care of themselves.

As to the next contention mаde, that the premises were in the possession of the tenant, Morrell, the evidence is clear that the cistern and platform, with the cover thereon, were in the same condition substantially on the day of the accident as they were when appellant let the premises to Morrell; he being, by appellant’s own statement of fact in its brief, a tenant from month to month, there was in in contemplation of law a new letting at the beginning of every month, even though the origin of the tenancy commenced months back. Borman v. Sandgren, 37 Ill. App. 160. Whatever the condition of the cistern аnd platform was, on the day of the injury, the evidence justifies the inference that it was the same at the beginning of Morrell’s tenancy for the current month as it was at the time of the accident. When thе landlord lets the premises to a tenant with a dangerous place in them, he remains liable. Gibson v. Leonard, 37 Ill. App. 344; Baird v. Shipman, 132 Ill. 16.

The question of Mrs. Leavitt’s contributory negligence and its effect remains to be disposed of. She knew the location of the cistern, as well as the appellant, and she also knew the manner of its structure. She knew as well as appellant that the cistern was a dangerous place to her child, should it be led by its childish instincts to investigate the locus in quo, and we think ‍‌‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌​​‌​​‍she knew better than appellant whether her child possessed that instinct. There is much force in the contеntion that Mrs. Leavitt was guilty of contributory • negligence in allowing her child to remain in the yard at play after she saw it between the houses “ at the other side of the cistern.” But in view of the reasoning of the Supreme Court in the City of Chicago v. Hesing, 83 Ill. 204, we are not prepared to say that the jury was wrong in refusing to find that Mrs. Leavitt was guilty of contributory negligence. But if it should be admitted that she was contributorily negligent, it by no means follows that there can be no recovery. The action is brought for the benefit .of the father as well as for the benefit of the mother, as the statute and the decisions of the Suprеme Court in the interpretation thereof provide. (See section 2 of statute above quoted.) Appellee, the father, was not present. His absence was in the discharge of duties whiсh he owed to his wife and child no less than toward appellant. There is no way of charging him with evidence even tending to prove his contributory negligence. He does not derive his right in the premisеs through the acts or omissions of his wife, butt through the rights of his child and the negligence of appellant. This precise question has been determined by the Supreme Court of Ohio, in the case of Clevelаnd, C. & C. R. R. Co. v. Crawford, 24 O. St. 631. See also Wolf v. Lake Erie & W. Ry. Co., 55 O. St. 517.

If it should be admitted that the mother’s contributory negligence is a bar to her recovery, such fact can only be considered in determining the amount of damages. The action of the administrator can not, on well settled legal principles, be barred, so long as there are beneficiaries under the statute who are without fault. See Wolf сase, 55 O. St. 534. When an injury proceeds from two causes operating together, the party putting in motion one of them is liable, the same as though it were the sole cause. Bishop’s Eon-Contraсt Law, Secs. 39, 450, 453. Appellant did not by its instructions present the theory that the right of recovery was limited to the father; on the contrary appellant’s thirteenth instruction ‍‌‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌​​‌​​‍stated the measure of recovery to be “ the pecuniary loss sustained by the parents, by reason of the death of the child,” being the same measure of damages which appellee’s instruction called for. It is plаin that the term “ parents ” includes both the one at fault, if fault there be, and the one without fault. If the law of damages is too broadly given, it was of appellant’s own making, and under numerous decisions of the Supreme Court and of this court, it can not be heard to complain. It is not assigned as error, much less argued, that the damages are excessive; a mere conjecture that there may be error is insufficient to cause us to review the verdict on that ground. The expressions found in Chicago & Alton R. R. Co. v. Logue, 158 Ill. 621, and in Chicago City Ry. Co. v. Wilcox, 138 Ill. 370, to the effect that where the “ parents ” have been guilty of negligence in caring fоr the child, there could be no recovery, were not meant, we think, to bar such beneficiaries under the statute as have not themselves been guilty of negligence. To so hold would be to say that, no matter how numerous the “ next' of kin ” may be, if one of them is guilty of negligence, others in no way concerned should suffer for the acts of that one.

The expressions found in those cases were not necessary to a determination of the question before us; furthermore, in the Logue case it was found that there was no contributory negligence on the part of the parents, and the Wilcox case was not a case of death by wrongful act at all; the child itself was plaintiff. Had the precise point been presented, the court would in all probability have limited the lаnguage to the negligent parent. The father is the natural guardian of his child; “ the mother, as such, is entitled to no disposing power over the person of the child.” Pierce v. Millay, 62 Ill. 133. The marital relation in and of itself is no proof of agency or legal identity between husband ‍‌‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌‌‌​‌‌​‌​​‌​​​‌​​‌​​‍and wife. For views of a somewhat similar trend, see Atlanta, etc., R. R. Co. v. Gravitt, 93 Ga. 369.

Appellant complains of the ninth instruction given at the instance of appellee, that it authorizes a recovery even though the child was not attracted to the cistern, as alleged in the declaration. We have carefully еxamined the instruction in reference to this point, but we fail to see that such fact was not submitted to the jury hypothetically.

The nineteenth instruction requested by appellant, which the court refused to give, is a statement of the law, in its relation between appellant and its tenant, Morrell; it has no bearing on the issues of this case. The child’s right of recovery, which is the groundwork of this action, is not to be measured by Morrell’s right of recovery if the accident had happened to him. The instruction is a mere covert argument when applied to an infant’s cause of action.

We find no error in the record demanding a reversal of the judgment; it is therefore affirmed.