Johnson v. City of St. Charles
1916 Ill. App. LEXIS 49
Ill. App. Ct.
1916
Check Treatment
Mr. Justice Carnes

delivered the opinion of the court.

The appellant, City of St. Charles, operated an electric plant with poles and wires extending along a much traveled public highway north from the city. On Monday, September 23, 1912, appellee’s intestate, Walter Johnson, a boy ten years old, was walking along that highway at a point within a mile of the business part of the city with Nils Nelson, a boy about twelve years old. There had been a severe storm of the previous Friday, and one of the electric wires was broken and hanging with the end lying on the ground inside the field adjoining the public highway. Walter ran to the side of the road, climbed through the fence, and took hold of the insulated wire about two feet from the end, which was harmless. He then touched the end of the broken wire, which was uninsulated and described as bright and “shiny,” and received a shock from which he immediately died. He was warned by his companion and knew when he did this that there might be danger from touching the wire. The wire was down Saturday morning, two days before the accident. There is evidence tending to prove that appellant was actually notified of this condition on Saturday; but there is a conflict on that question, and whether appellant in the absence of actual notice in time to repair the wire is charged with constructive notice is a pertinent inquiry. The poles and wires were placed there by permission of the owner of the land. There was no reason why deceased should go through the fence or touch the wire except the prompting of boyish curiosity. This action was brought to recover for that injury, and on a jury trial there was a verdict and judgment of $2,500 for the plaintiff. The record is brought here on appeal.

It is first insisted that under the above stated facts deceased was guilty of contributory negligence as matter of law, and that the court erred in not directing a verdict for the defendant. In Trapp v. Rockford Elec. Co., 186 Ill. App. 379, we considered the degree of care required of children and discussed several holdings of our Supreme Court on that question, and noted the purpose of the law “to protect children against their lack of sound judgment.” It was said in Sutton v. Arrow Transfer Co., 186 Ill. App. 188: “A child is not required to exercise the same degree of care as an adult, but only such care as a child of his age, intelligence, experience and capacity would ordinarily exercise.” In the late case of Hartnett v. Boston Store of Chicago, 265 Ill. 331, the court citing many authorities said: “A minor may reasonably be expected to exercise that degree of care which a person of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use. ’ ’ The law recognizes the lack of judgment, caution and discretion in children and the consequent inability to take care of themselves, and requires adults to take notice of these tendencies and conduct business with that in view and reasonably guard against injuring them. Accident cases are very numerous in which.xhiMxenJmYS.-heen held not guilty of contributory negligence where adults would clearly have- been foimd~nót in the exercise of ordinary care for their own'safety. "Whether in the present case deceased was exercising such care for his own safety as hoys of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use, is a question of fact to be first passed on by the jury unless there is only one reasonable conclusion. What a ten-year-old boy of the kind and character pictured in legal definitions would naturally and ordinarily do is a question that laymen are quite as well qualified to answer as are judges and lawyers. ' It involves a consideration of many factors. No fixed rule can be applied even in cases of children of equal age and natural capacity. Thompson on Negligence, vol. 1, sec. 309; Hartnett v. Boston Store of Chicago, supra. Although the evidentiary facts are not disputed, still the question of contributory negligence is one of fact for the jury and not of law for the court, unless all reasonable minds must agree as to the conclusion to be drawn from the admitted facts. That it is not for the court to direct the jury as to what facts do or do not constitute negligence hardly requires citation of authority. The rule is held or recognized in Lake Erie & W. R. Co. v. Klinkrath, 227 Ill. 439; Commonwealth Elec. Co. v. Rose, 214 Ill. 545; Illinois Iron & Metal Co. v. Weber, 89 Ill. App. 368; Christiansen v. Navigato, 185 Ill. App. 318; Kelly v. Commonwealth Elec. Co., 167 Ill. App. 210, and many other cases. Of course, all statements that contributory negligence is a question of fact for .the jury are to be read remembering that any contention as to any claimed fact may become a matter of law for the court instead of a question of fact for the jury if the evidence is so clear that there can be but one reasonable conclusion from it. In our opinion it cannot be said in the present case that deceased, as matter of law, was not measuring up to the required standard in letting his boyish curiosity lead him to experiment with the broken wire. We think that question was properly left to the jury, and that their conclusion was not so unreasonable as to require the trial court to disregard it, or permit this court to reverse the case on that ground.

The jury were justified in finding the defendant negligent. Its line was properly constructed and had been in operation three or four weeks before the accident. The break was within about a mile of its power plant and on the Elgin road. There was a severe storm on Friday night which should have warned appellant of the danger of such an accident. It was dealing with a destructive agency which required care commensurate with the danger. Commonwealth Elec. Co. v. Melville, 210 Ill. 70. And even if the jury were not justified in finding actual notice to appellant on Saturday, still we think they were warranted in charging appellant with negligence in not learning the danger and repairing the line before the accident happened, considering the location of the wire, its nearness to the city and the plant, and the danger to be anticipated from neglecting investigation of the line after a severe storm.

It is argued that deceased was a trespasser and therefore appellant owed him no duty except not to wantonly injure him. If the field entered by deceased had been owned or controlled by appellant a different question might arise. But it was the land of a third party, appellant was there by permission of the owner and whether deceased was there' under an implied license, which often arises from custom in the country to go on foot onto fields adjacent to the highway, or was trespassing as against the owner of the land, he was not trespassing on the premises of appellant. Appellant had no authority to forbid deceased from going upon that field, therefore, as against the appellant, he was rightfully in the field where he was injured. The case is to be distinguished from those in which an accident occurs to a trespasser upon the property of the defendant. The wire fell within the field adjoining the highway, but we think that fact should not make appellant less liable than if it had fallen on the roadside of the fence.

There is no question that deceased was a bright, intelligent boy. He was a farmer boy, probably not much acquainted with the operation of electricity. He knew when he touched the wire that he might receive a shock, and quite likely knew cases where boys had touched electric wires and received slight shocks. There is nothing in the evidence to show, and it is not to be presumed, that he had any knowledge of electricity and its dangers compared with workmen employed around electric wiring. The judgment should not be reversed unless the record discloses material error of law.

Appellant offered four instructions, each, in substance, advising the jury that deceased was guilty of negligence under the facts which the instructions recited and which were not controverted. The court mo dified each of those instructions by inserting, “If you believe such acts on his part were contributory negligence, ’9 leaving the jury to determine whether the conclusion from the admitted facts was that the boy was negligent instead of determining that question as a matter of law. Each of these instructions practically directed a verdict and might well have been refused. It was not the duty of the court to amend or modify the instructions (Rolfe v. Rich, 149 Ill. 436), though he might do so if he desired. The Appellate Court of the fourth district lately held in Grannon v. Donk Bros. Coal & Coke Co., 173 Ill. App. 395, that one who asks the court to give an improper instruction cannot be heard to complain of the court’s action in modifying it, although the court fails to make it good. It held the same rule in Wilkerson v. Willis Coal & Mining Co., 158 Ill. App. 620, and in earlier cases there cited. Ryan v. Donnelly, 71 Ill. 100, cited and approved in Crown Coal & Tow Co. v. Taylor, 184 Ill. 250, seems to support that holding. But without attempting to fix the limitations of that rule, it is sufficient in this ease to say we see no substantial error in the instructions, as modified. It is objected that they left the jury to pass on “contributory negligence” as matter of law, but the jury were told in other instructions that the plaintiff was not entitled to recover unless the deceased was at and before the time of the accident in the exercise of due care there defined, and there is no reason to suppose that they would conclude from this instruction that he might recover if he did not measure up to the standard of care required by the other instructions.

The court, at the instance of appellee, gave the jury the following instruction: “If you believe from a preponderance of the evidence in this case that the defendant is guilty as charged in plaintiff’s declaration, or some count thereof, then, in determining the amount of damages, if any, to be awarded to the plaintiff as administrator, you should fix such amount for your verdict as will, in your judgment, from all the evidence be a fair and just compensation to the next of kin of deceased for the pecuniary loss, if any, resulting to them by reason of his death. ” It is urged that this instruction is bad because it tells the jury in assessing the damage to consider “all the evidence” while it should have limited' the consideration to the facts and circumstances attending the injury. A similar objection to a similar instruction was denied by the court in Chicago City Ry. Co. v. Gemmill, 209 Ill. 638, and it was there said that an instruction in substantially the same form had been approved by the court in many cases there cited. It is also urged that the instruction is bad as ignoring the defense of contributory negligence. The answer to that objection is that it does not direct a verdict, but is only intended to guide the jury in assessing damages, if they find the defendant guilty. This objection goes to the first part of the instruction, where the jury are told if they believe, etc., that the defendant is guilty as charged in plaintiff’s declaration, or some count thereof. Instructions similar in this respect have been approved in Pennsylvania Co. v. Marshall, 119 Ill. 399, and numerous later cases citing that case, among them U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, citing a great number of earlier cases. The instruction properly confined the jury to pecuniary damages: So far as it is to be considered as an instruction on the measure of damages, it would not, if erroneous, work a reversal of the judgment, for there is no claim, nor ground for claim, that the damages are excessive.

The court refused two instructions offered by the defendant, each of which would, if given, have informed the jury that the conclusion from the practically admitted facts in the case was that deceased was negligent and plaintiff could not recover. There was no error in refusing these instructions. We are of the opinion that the record discloses no substantial error of law. The judgment is affirmed.

Affirmed.