*1 is unnatural in the fact that the testator “There nothing his to a whom he wife, left niece his property friendly had been on terms for a of years.” long period Parr, 168 this said: Harp v. Ill. court 459, page 471, “The validity also is favor of presumption when is is one will, therein, who person, provided with whom the testator had maintained intimate and affectionate relations his We life.” there conclude, during that the in this fore, case fail to show domi proofs nance beneficiary over mind the testator and fail to show or deed that would tend any act, word, even was active in beneficiary suggest procuring will in question. lower court acted direct properly a verdict all at the close of the evidence ing and the decree „ , ~ entered thereon affirmed. Decree affirmed. (No. 33216. Roy Company vs. Appellant, Burton Kahn,
Lee James et al., Appellees.
Opinion May 20, filed 1955. *2 Davis, JJ., dissenting. Hershey, of for G. Davidson, Chicago, appellant. Louis Fisk, Chicago, Abrahamson & Crowe, Yates, Burton for counsel,) appellee James Crowe, A. (Burt Hoban, Company; & Hinshaw, Culbertson, Moelmann appellee Chicago, counsel,) G. (Oswell Treadway, kov Company. Lumber Mal Klingbiel delivered of the the opinion Mr. Justice court:
Petition for leave to from the First District appeal has been Court Court Appellate granted. Appellate decision reversed the court of judgment superior County Cook remanded the cause with directions enter defendants, for the Burton judgment Com- James and Maikov pany, corporation, Inc., Lumber Company, Kahn. corporation, against Roy plaintiff, Lee Defendants, and Bessie Krieger A. Krieger, Jacob not involved in subsequent entry proceedings in the trial the trial court, court directed having *3 a verdict in their favor and no plaintiff having assigned error This suit concerns action. injuries personal received minor by vacant lot owned upon Chicago by and Kriegers which a two-story brick home upon constructed for them being the defendant by James Burton a construction Company, The child was company. when injured of lumber pile which he had been upon over and certain playing boards of the fell toppled pile The lumber him. delivered by defendant Maikov Inc., on Company, Lumber day prior occurrence.
Plaintiff, a minor, eleven of years age the time the occurrence, instituted the action his by father as next friend. He is the here and shall appellant hereinafter be referred to as Defendant plaintiff. Burton Company James will hereinafter be referred to as the and contractor, de- fendant Maikov Lumber will Inc., Company, hereinafter being defendants said lumber to as the company, be referred in this court. appellees of cer- ownership alleges Plaintiff’s amended complaint in the Kriegers, to have been tain in the city land of Chicago was construct- time the contractor at which 20, July 1948, had piled that the lumber them; a home for ing sand thereon also had the land which and lumber on planks and machinery materials, and items of building other piles adjacent public visible to children upon readily equipment attract allure and tended to that said conditions highways; of the them the date occurrence on premises; on attracted played thereto prior near the materials and equipment; the premises adequate were left without on piles premises who and that while eleven-year-old plaintiff, support had been of the attracted condition premises, a lumber the same playing pile causing collapsed serious of. The usual injuries allegations complained care for a of his due child plaintiff’s age, proximate cause were made. The was to effect negligence charged in an of lumber were to remain piles permitted unsafe condition without failure to warn adequate support; lum- close to such danger coming piles ber to take reasonable to guard failing precautions in order to children from into premises coming prevent contact with the lumber existed. The piles allegedly defendants were with actual or constructive knowl- charged the fact that the existent circumstances attracted edge children to the but failed to take reasonable meas- premises ures to correct alleged conditions. dangerous
The contractor denied and also plaintiff’s allegations *4 that it was not in or control of the alleged prem- ises before and on the date of the occurrence. The lumber denied and company plaintiff’s complaint charged plaintiff with A in verdict the amount of negligence. jury’s $20,000
618 and after usual post- in returned favor plaintiff, thereon was rendered against trial motions and the contractor company. in Ill. 2d 1 App.
The Court’s reported Appellate opinion, no out the facts of the case detail and purpose sets 370, served further essential Only will be particularization. of the evidence dealt herein. On will be portions and four July 20, boy eleven 1948, years months of The unen were age. Krieger premises open, which closed their home was two-story premises, be constructed in a residential city neighborhood When excavation was and the Chicago. completed foundation had been contractor noti masonry poured, fied could start their On Krieger work. carpenters an July officer of the contractor ordered lumber from 19, the lumber was made on the same delivery The day. order consisted of two ten feet pieces 2x10 long; 2x10 twelve feet 2x10 pieces long; pieces 50 14 fourteen feet 2x10 sixteen feet long; pieces long, 50 feet 1x6 twelve pieces The was made long. delivery 267 about in the afternoon. The delivery unloading 4:30 made in the usual and manner accord customary ance with the uniform in the practice city of Chicago. load was conveyed by tractor-trailer and the bed of the trailer had metal rollers operated by ratchet wrench. load was so that when unloaded arranged the lumber needed first would be at the top Chains are pile. wrapped around the drawn load, and locked tight with a binder and the load was four and one-half feet and six feet wide. high a level the load Upon finding spot is rolled off half-way and bound with a chain, two-by-fours are on the placed ground then the load is cross-pieces dropped the bed of the truck which is approximately feet from 4 The entire ground. load approximately 8 tons and a sixteen feet 2x10 single length weighs approxi mately truck pounds. driver testified an apron
619 that hard but falling from the load trailer kept the on chains The the of apron. the bottom from feet 2j4 dropped left with and the pile delivery after removed the on lumber was placed or support. out bracing inter the feet of the lot within of corner southwest of top on boards alleys. two section of public no evi There is boards. than the lower were larger pile delivery of the time in the as to any change pile dence several occasions On the occurrence. prior the instant of dirt thrown up the mound of on children had played on never Plaintiff had played the mason contractor. their bicycles and a stopped
lot before he companion in question. lumber on the day went piled boat. resembled a the lumber fancy childish pile plaintiff’s the south testified the ship Plaintiff prow coming together there were two piles that piles, climbed at the southern end. Plaintiff up to a point the uneven created by formation pile, using step-like remained the south end of of the boards and on piling to a branch While to tie a pile. string reaching up piece bell” of a tree for the a “toll nearby purpose having some of way fall, planks gave causing plaintiff Plaintiff stated he heavier him. falling planks did to disturb the boards or them before nothing dislodge he fell and as far as he had in the way knew done nothing around to knock the boards down or moving bump them over. Court held that as a matter of law Appellate of the lumber was not
supplier guilty any negligence. It held there was no on the guard pro- supplier tect the since it was not in or control premises thereof. The Court also found there no Appellate proof lumber was unloaded at a where chil- place dren had been numbers but playing that large children had been on the mound of dirt playing thrown up by the mason contractor and not where the lumber evidence there was no It out pointed also
deposited. time the lumber was child was present that any had any knowledge unloaded or supplier then on the The court had ever played premises. liability cases where injury distinguished holding could not be occurred in a where street, public on not trespasser, private premises.
After a discussion of cases cited the court by plaintiff *6 then they noted wherein and held as distinguishable matter of law that the was not guilty any supplier and that the trial the court’s on ver- negligence dict should be The court in its reversed. declared opinion that owed no stack supplier plaintiff duty in lumber and further that there way particular it no which can be evidence from inferred that on left the premises by required supplier any support it in brace to keep position.
The lumber contends in this it company court anyone owed no other than owners and the and that since it in contractor, was not or con trol of the it could not premises be held liable for injuries plaintiff. position cannot be In sustained. so far as the lumber- concerned plaintiff not and if it should have trespasser; antici that children pated come might and be premises injured, fact it did not own or control the prem ises cannot it relieve from liability for the consequences of (Stedwell City its negligence. Chicago, v. Ill. 486.) In the case the city cited owned an electric wire light on strung twenty-five feet in posts aAt street height. inter section the wire under passed an elevated railway structure, and was fastened by brackets to steel posts supporting structure. The wire at that was about point thirteen feet above the street. and the posts crosspieces attached thereto were owned aby railroad, not by city. plaintiff, eleven boy years seven months of age, the wire, with came into contact climbed crosspieces, up and judg- a verdict To reverse severely injured. and was not the wire the city ment argued against if was attractive anything and that attractive to children, the railroad the latticed belonging to them it was pillar this court however, affirming judgment, company. it was, presented “If the constructed observed: pillar, it in their to climb an and allurement to children attraction did use it in their childish sports, so play close wire error plaintiff dangerous placed in con- it that in its a child come proximity might play tact and be the fact that the injured, wire not, error did not construct or own the would pillar relieve it from Where an attractive itself, liability. thing is so located that to its allurement a child is yielding in direct contact with a there brought danger placed someone else, the the dan- person responsible creating condition will gerous be liable.”
In the case at bar the whether the questions lumber was so as to create an piled unreasonable to children danger and whether it playing thereon, was so attractive to chil *7 dren as to suggest that children probability would climb onto it, were questions for the under the jury circum Co, stances shown in the record. In True & True Woda, v. 201 Ill. 315, defendant was in build engaged a shed near its ing factory, and caused two of wagonloads lumber to be on the piled sidewalk in front of the premises. The area was built with up mainly small residences. The pile of lumber was six or feet wide eight at the bottom, five or six feet wide at the and from three top, to five feet As high. child plaintiff’s or near passing standing of pile some lumber, heavy or timbers from planks the pile fell upon him, his death. causing It was not clear what caused the lumber to but other fall, children were near at the time and there was some evidence to tending show the lumber was imperfectly piled. sustaining recovery by thus as lumber, “The of we observed: pile
the plaintiff, were jury justified such character of situated, should evidence, appellant finding, small children, be to attract have known it would likely it would be if climbed the lumber as they piled Pekin fall injured. them and be likely (City of evidence, from the McMahon, Ill. The jury, 141.) v. justified finding appellant’s negligence did not err cause of the and the court injury, proximate take the case from the jury.” declining A similar conclusion must follow in the case. present The creator of certain conditions and hazard dangerous ous to children because their immature of appreciation of such and hazards must be held a certain dangers standard for the conduct of such children protection accordance with the attendant circumstances and conditions. Account must be taken of the cost and burden of taking precautionary measures and of the of families and right society rear freedom of ac develop in their tivity without to unrea communities, being subject sonable risks which cause serious or death might injury to such children. All men are to know those presumed which are things matters of common and must knowledge in the absence held, of actual notice, knowledge have reasonably such occurrences as in the anticipated nature ordinary reasonable men should things know will probably occur. all Every person owes to others a duty to exercise care to ordinary guard injury against which may naturally flow a reasonably probable foreseeable consequence his and the act, law presumed to furnish a remedy the redress of every wrong. duty to exercise care ordinary to avoid to another injury does not depend upon contract, privity interest, or proximity but extends to remote relationship, and un known persons. (Wintersteen National v. Cooperage *8 Woodenware Co., Ill. test 95.) the case at bar 361 ordinary of the exercise lumber the is whether likelihood the have anticipated could care injured and would the lumber would climb onto children if it securely piled. were not the from in finding, justified the think jury
We inter to the its proximity the lumber pile, condition of it was delivered fact that the alleys, of section two public community, in a summer vacation populous during that defendant in evidence, other facts and circumstances to attract likely known it would be should have the lumber if climbed they who be injured might be aside merely be set it A verdict will not was piled. or because differently the have found cause could jury reason would be more feel that other conclusions judges In the Co. 121.) Ill. (Lindroth Walgreen able. v. another one’s due suit, care, trial of law of questions cause of party’s proximate alleged negligence are injuries injured damages pre-eminently party’s determination. our fact for a Under jury’s questions be set determinations can system jury jurisprudence, or trial court only review, aside when court satisfied were occasioned motion, clearly proper be wholly or found to unwarranted by passion prejudice evidence. We think the manifest weight motion for trial court overruled defendant’s judg properly and that verdict, ment Appellate notwithstanding erred otherwise. deciding Court As to contractor, sufficiently evidence shows it have been and control of property time of the accident. This defendant insists that there evidence to is no finding jury support an on maintained attractive nuisance premises. hand, on the other contends that the lumber pile an constituted attractive and that in nuisance, event whether conditions on question lot amounted to an attractive nuisance one of fact jury decide.
624 or of a certain as naming set facts labeling being
an “attractive nuisance” case or a “turntable” case has led often to undesirable is conclusions. inclination then find stare to decisis or pigeonhole category. difficulty in such is that too often the result of procedure such a search is the of irreconcilable conclusions. reaching In certain cases referred as to “attractive nuisance” cases the courts out that the his immature infant, because of point to inability certain conditions, appreciate attracted and allured to certain and therefore is premises no but as longer trespasser is be an invitee. regarded It follows then that certain duties are owed to him. How- ever, we then find the same courts that this same declaring immature child was attracted to the A object premises by but was injured by and can object B, therefore find no remedy law for the injury reason that his was not proxi- mately occasioned by cause. attracting Many cases hold that the attraction be must the inherently con- dangerous dition which itself causes the injury Many of. complained cases hold otherwise. Another class of cases deal with and lakes. Yet has watercourses, ponds liability been sus- tained these cases where it the water caused appears The courts then declare that the drowning. water in itself cannot attraction for a case of but that liability other must objects have attracted the children. It has been ruled must complaint attractive allege objects as rafts, boardwalks, tree floating logs, con- stumps, bottles, even tainers, etc., or death injury though complained of was not in the least by occasioned objects. attracting In view of the that, conflict and the fact as foregoing many courts have a child in declared, youthful his fancy, imagination can make a ingenuity of almost plaything and is attracted almost anything everything, only basis for in such proper decision cases dealing per- sonal injuries are the customary rules of ordi- cases, negligence nary
625 defendant that an true, contends, It is generally and control of under one premises owner or state them in or condition any duty particular no keep or others who come safety trespassers promote either invitation, them without express upon implied. Illinois Railroad Ill. ; v. Central Co. 181 (Briney Brown, Darsch It is also v. Ill. established 592.) as a have no infants, rule, general greater rights go the land than adults, of others and that their minority of itself no of land to imposes occupier them or for their safety. expect prepare (Burns v. City of *10 Ill. McDermott Chicago, 89; Burke, v. Ill. 401.) 338 256 It is that an however, recognized, exists where exception the owner or person possession knows, should know, young habitually frequent the of a vicinity defective structure or dangerous on the agency existing land, which is likely to cause them injury to because they, by reason of their are immaturity, incapable appreciat the risk ing and involved, where the or incon expense venience of the condition is remedying slight to compared the risk to the children. In such cases there is a duty the owner upon or. other person possession and control to premises exercise due care to remedy the condi tion or otherwise protect children from injury resulting from it. (Wagner Kepler, v. Ill. 368.) element 411 of attraction is significant so only far as it indicates should trespass anticipated, true basis of liability being foreseeability of harm to the child. Whether the lumber was pile sufficiently attractive to entice children into whether climbing upon it, its condition would involve from danger and activity, whether the con tractor should have anticipated probability of the acci were dent, matters for determination jury. City of Pekin McMahon, v. Ill. 141. 154 Conn, In Rehbein, v. 110, Atl. 608, Wolfe 123 defendant owned a lot adjoining house in which build a house, lived. He began piled
plaintiff line be- boundary rear of the lot parallel his After removal of tween lot and plaintiff. of the house an of the lumber erection portion during was left in the about 12 inches wide opening pile timbers insecure and unbalanced. remaining child, injured small who was while plaintiff’s fatally play- on the lumber found in the beneath ing pile, opening two had fallen into it. There was some which evi- planks dence that she and her sister were accustomed to play upon defendant’s lot construction of the and that during house, defendant knew were there every day. appealing from a a verdict for defendant judgment plaintiff, contended that licensee, since child was or a trespasser she took them defendant’s she found premises de- fendant owed her no his safe keep premises condition her It held, however, for use. that where knows or should know that children are possessor likely he is bound trespass, their anticipate presence refrain from a condition to be maintaining likely dangerous to them their because of to intermeddle and propensities their failure to realize risk involved. In affirming the court “The jury said: could this, have found that defendant knew child his every lot in the day upon immediate vicinity this *11 pile lumber and that he should have realized that, the condition which it it involved left, an unrea- sonable risk of serious harm which bodily children of such tender could be age not to discover or expected appreciate, and that her death was caused his failure by to perform the under these which, devolved circumstances, upon him of reasonable taking to avoid precautions to injury even her, her status though was that of a In trespasser.” at case bar the jury could have reasonably found that the contractor or knew should have known that children would likely the lumber by attracted and that if pile, risk be an unreasonable it there would climbed they bodily harm. of serious erred in holding Court conclude Appellate
We of any not guilty negli- defendants were a matter of law Court of the Appellate It from appears opinion gence. herein con- the questions of its decision on that because other assignments it did not consider sidered, pass upon to be remanded must therefore cause error. reversed and cause court. judgment accordingly directions to con- Court remanded Appellate sider the undecided contentions properly presented, to either affirm the superior thereupon and remand reverse said judgment court Cook County the cause. remanded, with
Reversed and directions. dissenting: Mr. Justice Hershey, from that the majority dissent part opinion per- I the defendant because I do lumber company, taining in the not there is evidence record which any believe this could found defend- against have jury this facts show my ant. opinion undisputed did standard of con- not fail to conform to company this duct has established court or should which been now be established. jury
The facts which the predicated liability, in the Court are not stated length Appellate opinion, nor Briefly, are evidence complicated, dispute. that after the had been founda- done, shows excavating tion had been brick work had advanced poured, in the joists where was floor necessary put notified the boards, owners (Kriegers) contracting who (defendant Burton Company), James do then carpentry. ord- contracting company ered from the lumber Maikov company (defendant Lumber lumber. Company, Inc.) Pursuant to this necessary *12 on one of the lumber loaded the lumber order, company The was lumber it to the and delivered premises. its trucks used car- by be in the order which would stacked the floor boards on joists is, top penters, the lumber concedes underneath. plaintiff n with the uniform prac- and delivered in accordance loaded The lumber com- tice of lumber dealers all over Chicago. of these not or control private possession pany of the it in or control nor was possession premises, injured. time the plaintiff been I wherein cited, No cases have nor have found any, the standard of conduct of lumber has binding supplier held him been an to do any impose upon obligation more than was done the lumber in this case. company In this must connection, following significant points be considered: lumber was not dan- (x) “inherently to human in the sense gerous” safety those terms are ordi- narily cases employed with the dealing liability seller to one who may be be in expected vicinity of the chattel’s use and be probable endangered thereby. (2) delivery of the lumber was done pur- suant contract, in a manner directed by the contractor and conformable to the uniform of lumber practice dealers The injured Chicago. (3) was a party trespasser upon the premises where the lumber was delivered, and at the time of his injury the lumber was not in company pos- session of nor did it premiss have control over the lumber. It is conceded that the lumber cannot be company held liable under any application so-called “attractive nuisance” doctrine, inasmuch itas had no con- trol over the premises. Still, to hold the lumber company liable results, in effect, the extension of the attractive nuisance doctrine, since the foreseeability demanded of the held to much the same as that required of possessor the premises. I agree that this defendant had general act with reference to circumstances; under act would person a reasonable unreasonable not the defendant acts however, *13 injury risks. The unreasonable cause not any and did have fore- should the defendant one which not ato the defendant is hold otherwise to seen. To decide been recognized has heretofore than stricter standard not be de- should absence of legislation, in the which, manded of it. definitive makes no more of the majority
The opinion than proposi- statement of the law general or particular defend- to cases, namely, tion all negligence applicable the circum- is reasonable care under ant use required out relative to establishing stances. Nothing spelled care. The risk the standard of or scope articulating (from Holmes are words Mr. pertinent following Justice “Finally, : Law, 111-2) legal Common pages known. must, standard be theory, being capable When man has he is to have to pay damages, supposed have law, broken the and he is further known supposed ordinary what the law was. liabilities in tort If, now, arise failure fixed with and uniform stand- comply ards every of external which man is conduct, presumed it is know, obvious that to be required ought sooner or these later, formulate standards possible, least and that to some to do so must at last extent, of the court. It is business clear that the feature- equally less defendant was bound to use generality, care as a man would under circumstances, do prudent to be to the ought continually giving place one, specific that he was bound to use or that this under precaution these or those circumstances. The standard the de- which fendant was bound to come to was standard of up spe- cific acts reference omissions, to the cir- specific he cumstances which found himself. If in the whole of unintentional department the court wrongs arrived at no further than utterance the question of negligence, left case, without rudder or to the every jury, compass, they would their confess to state a simply inability very large the law which part required defendant ** to know in this liability the court im- sanctioning case, has posed defendant a standard which is vague definition strict yet application.
Mr. Davis concurs in the dissent. foregoing Justice