97 Ill. 66 | Ill. | 1880
delivered the opinion of the Court:
This action was brought by William W. Gavin, by his next friend, against the city of Chicago, to recover damages sustained on account of the loss of his arm, alleged to have occurred through the negligence of the city authorities in not properly maintaining the swing bridge on Eighteenth street. On the trial in the circuit court plaintiff obtained a verdict for- $3000, upon which judgment -was rendered. That, judgment was reversed by the Appellate Court on the appeal of defendant, and final judgment rendered in that court against plaintiff for costs. Plaintiff brings the case to this court on error.
The accident to plaintiff occurred at the swing bridge over the South Branch of the Chicago river, on Eighteenth street, whither plaintiff had gone with other older boys. The bridge had just been swung around to allow a vessel to pass, and as it was being closed the two- older boys, in whose company plaintiff was, jumped on the bridge just as soon as the swing part got to the pathway where people pass on, and one of them called to plaintiff to come on. A witness who saw the accident says, when plaintiff stepped on the bridge he was on the road bed. He then seemed to be frightened, stood still, and “ commenced to shiver.” The other boys jumped off, and plaintiff undertook to do the same, but fell forward on his face across the space between the bridge- and the abutment, and in some way his right arm got between .the bridge and the abutment and was' crushed.
The declaration contains an averment it was the duty of defendant to so carefully keep, maintain, and manage the street and bridge, as to protect persons traveling along and upon the same from danger, and on account of the negligence of defendant in this regard, plaintiff, while passing along and upon the street, “ was necessarily and unavoidably thrown down upon said street and bridge and caught between said •bridge and the abutment of the street thereon, and the right -arm of plaintiff was crushed and broken.”
There is absolutely no evidence to sustain this averment in ■the declaration as to the cause of the injury to plaintiff. He was not “necessarily and unavoidably” thrown down on the street or bridge. ' The evidence is, plaintiff jumped upon the bridge while it was in motion, and in that way sustained the injury of which he complains. That which flows or follows from an act of volition can not be said to happen “necessarily and. unavoidably.” The variance between the declaration and the proof in this respect is fatal, and would preclude any recovery in the present action, as the pleadings stand.
But the decision may be placed on the broader ground, the evidence makes no case in favor of plaintiff. At the time of the accident plaintiff was only four years old, and of course he was too young to exercise any care for his personal safety. His parents resided on Butterfield street, between Eighteenth and Nineteenth streets. On the morning of the day when the accident occurred his mother was sick and was confined to her bed, and his father was absent from home engaged in his usual labor. Plaintiff left his home without the knowledge of his mother, and as soon as she discovered his absence she directed search to be made at once for him. The family was dependent on the daily labor of the father for support, and were not in such circumstances as would enable them to procure any suitable person to constantly care for the children. Under the circumstances proven, the jury found there was no negligence on the part of the mother touching the care she bestowed on her child, and the Appellate Court was entirely correct in not disturbing the finding in that respect.
The only remaining question in the case is whether defendant was guilty of negligence in regard to the care and management of the bridge where the accident occurred. No special defect is averred in the declaration to have existed in the bridge, nor are the servants of defendant charged with any carelessness in the management of the bridge at the time of the happening of the injury to plaintiff. The averments in the declaration are general as to the want of care in maintaining the bridge, and no specific acts of omission of duty in that regard are charged. It was a swing bridge, constructed as such bridges usually are. So far as the evidence discloses its condition it was in perfect order, and was handled with usual care and skill. The only complaint made on the argument is, that there was no barrier of any kind at the approach of the bridge, and no watchman to guard the same to prevent accidents to persons traveling on the street.
Undoubtedly it is the duty of a municipal corporation to keep and maintain such bridges within the corporate limits in a reasonably safe condition. When it has done that it has discharged its duty to the public in that respect. Persons having occasion to pass over such bridges must exercise reasonable care for their personal safety, and the law has laid that duty on all persons. It is not understood to be the duty of such a corporation to so construct its streets and bridges that accidents are impossible to persons using them. That would impose upon them a higher degree of care in this regard than the public welfare demands. Something must always be left to the provident care of persons using them. The bridge in question was reasonably safe to persons observing ordinary care. It had no barrier at the approaches when it was opened to allow vessels to pass. But it is not shown any could have been constructed that would have rendered the bridge more secure than it was. A number of contrivances had been tried on other bridges in the city, and all of them proved to be worthless for the purposes for which they were designed. It was not thought they rendered the bridges any safer, and their use was abandoned. Ho doubt it would be possible to place a sufficient guard on duty at every bridge that would prevent accidents to careless persons, and to children that might come there to play, or some mechanical contrivance might possibly be constructed that would answer the same purpose • but the law has not made it the duty of municipal corporations to observe such extraordinary care. The bridge, in the condition it was then in, was reasonably safe for all persons using the slightest care for their own safety. Ho duty rests on the city to make such bridges safe for children to play around or upon, nor is it expected parents will allow their children to occupy such dangerous places as play-grounds, and if they wander from their homes without the knowledge of their parents, and sustain injury at such places, it must be attributed to mere accident that no care which they are obligated to observe, on the part of municipal authorities, could prevent.
Plaintiff eluded the watchful care- of his mother, and in company with others sought this dangerous locality, and while engaged in boyish sports with his little companions sustained painful injury. It was a mere accident, for which no one was really chargeable, and certainly gave plaintiff no cause of action against defendant.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
