On November 12, 1957, the defendant Goedde was in the process of constructing a dwelling on a lot he owned in a residential area of Belleville, Illinois. The various portions of the construction work were contracted by defendant Goedde to different contractors, one of whom was the co-defendant, Bartosik. On said date, the concrete foundation had been poured but a large mound of dirt, approximately 6 or 7 feet high, remained from the basement excavation. For the removal of this dirt, defendant Goedde contracted with defendant Bartosik, a hauling contractor.
Bartosik owned two trucks and a farm tractor which had a high lift attachment for loading materials onto the trucks. The tractor did not have a key locking ignition system, but rather was started and stopped by a “killer switch” which was described as a mechanism not unlike that found on a motorized lawnmower and which operated by the pulling out and the pushing in of the switch button. Bartosik did his own work with the assistance of an employee. On the day in question, Bartosik went upon Goedde’s premises to remove the pile of dirt. Bartosik drove the tractor to the site, and his employee brought along a truck. Bartosik, himself, then left to work for another customer with the remaining truck, and his employee remained alone on Goedde’s lot.
Bartosik’s employee proceeded to load the truck and haul away the dirt. He hauled from 8:00 a. m. until close to 4:00 p. m. Each trip away from the premises took about 12 minutes. He was making Ms last trip when he left, leaving the tractor in reverse gear, having killed the motor by pushing in on the killer switch. He left in the truck to deliver the load across town. The plaintiff, a boy of ten years, and two other boys his age, on their way home from school, went on the lot to play somewhere around 3:45. They climbed on the tractor when Bartosik’s employee left, and began playing with the buttons. The tractor suddenly started, plaintiff fell off under the back wheel, and was injured when the wheel passed over him. Shortly thereafter, Bartosik’s employee returned and found the plaintiff lying next to the rear wheel of the tractor.
There was evidence that children frequently played on the lot, and that defendant Goedde knew this. However, there is no evidence that defendant Goedde knew that Bartosik was working on the lot on the day in question, or that he had a tractor there that day. Furthermore, there is no evidence that Goedde knew that the tractor Bartosik used was operated by a “killer switch” and not the conventional ignition key. There was evidence that Goedde knew that Bartosik would move the dirt by means of a high lift attached to a tractor and that the tractor had been on Goedde’s lot on one previous occasion removing dirt, about a month before the time plaintiff was hurt, but the proofs show that the tractor had not been left unattended at that time.
The case was tried by a jury and verdict rendered against both defendants, Bartosik and Goedde, in the sum of $12,500. Post-trial motions for judgment notwithstanding the verdict made by both defendants were denied. Subsequently, Bartosik bought his peace for $5,000. This appeal, therefore, only concerns Goedde; and, he does not ask for a new trial, but seeks reversal, resting solely upon the theory that as to him there was no jury question presented.
It is plaintiff’s theory that the defendant Goedde “maintained an attraction on his premises and permitted defective attractive mechanical equipment to go onto and remain on his premises when he knew, or, by the exercise of reasonable care should have known, that children would be attracted thereby.”
We have here for decision the question of whether or not a landowner may be held liable for personal injuries to a child resulting from there being upon his land a dangerous instrumentality which he did not create, control, maintain and when he had no knowledge of its danger.
As a general rule, an owner of property is not liable for injuries caused by the negligence of an independent contractor or his servants working on the premises. Illinois Law & Practice, Negligence, Sec. 82. The reason for this rule is that in such cases the relationship of master and servant does not exist between the owner and the contractor. Scammon v. City of Chicago,
And too, we have an exception for small children. Though it has been said that infants, as a general rule, have no greater rights to go upon the land of others than adults (Burns v. City of Chicago,
Until the last pronouncement of the Supreme Court upon this subject, in the Kahn case, many cases had held that the attraction must be the inherently dangerous condition which itself caused the injury complained of. Many other cases had held otherwise. To end this and other undesirable and irreconcilable conclusions which resulted from the previous cases, the Court, in the Kahn case, said on page 624 of 5 Ill.2d, page 841 of 126 N.E.2d, “the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases,” and on page 625 of 5 Ill.2d, page 842 of 126 N.E.2d, “The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.”
The doctrine of foreseeability has been the basis of tort liability for many years. Berg v. New York Cent. R. Co.,
“Assuming a duty due from one person to another and neglect thereof, liability for the neglect is limited in law to results which reasonably could have been anticipated. Without such a rule people could not safely live in our complex society.” Dabrowski v. Illinois Cent. R. Co.,303 Ill. App. 31 , 42,24 N.E.2d 382 , 387. In the Dabrowski case, supra, we find this language which is taken from Pollock on Torts, 8th ed. 41, “The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.”
“A man cannot be held responsible on tbe theory of negligence for an injury from an act or omission on his part unless it appears that he had knowledge or reasonably was chargeable with knowledge that the act or omission involved danger to another.” 38 Am. Jur., Negligence, sec. 23, p. 665. “Accordingly, in order to impute knowledge of a dangerous thing or place, the danger therefrom must have been such as is recognized by common experience or by the special experience of the actor. . . .” 38 Am. Jur., Negligence, sec. 24, p. 669.
Neither in Kahn v. James Burton Company, supra, nor in other cases similar to the instant case have owners been held liable. In the Kahn case, the owners were sued along with other defendants and at the close of proceedings the court directed a verdict for the owners and no error was assigned for such action. In Kleren v. Bowman,
Defendant owner here suggests that the rule growing out of the Kahn case doesn’t extend to an owner of premises who has no connection with the dangerous agency causing the injury. We do not decide that question here because we exonerate the owner in this case due to his complete lack of any knowledge, actual or constructive, of the dangerous instrumentality (tractor which was equipped to start without a key). Liability under the rules of ordinary negligence requires some knowledge on the party at fault, be it actual or constructive. It isn’t ownership of premises which frees this defendant; rather, his total lack of the knowledge of the danger to the children. We have noted that owners have been liable (Wagner v. Kepler, supra, Frost v. Andes Candies, Inc., supra.) Even the Kahn case recognized this. We, therefore, have arrived at our holding without determining whether the Kahn case, in principle, may or may not be applicable to cases against owners of premises.
We have here a situation common to almost every community today. Throughout the breadth of our land married couples are purchasing a site for a new home and are building them by the hundreds of thousands each year. We suppose that in the vast majority of instances the entire building process is left up to professional contractors and that the owner, himself, confines his activities to “checking up” on occasion and seeing how the job is progressing. This was the case here. Goedde owned an interest in a lumber company in another town, and he and his family lived some distance from the lot upon which they decided to build their new home. All the work was contracted out, and Goedde confined his “ownership,” “supervision” and “control” to checking up occasionally on the progress being made. In the same manner, as with the other contractors, he hired Bartosik to remove the excess dirt, and, in the same manner, as with other contractors, he knew that Bartosik would remove the dirt by tractor and truck just as he knew that cement and other materials would be delivered by truck and that the various artisans would use different mechanical devices and equipment in their work. But, he had no notice that Bartosik would use the type of tractor he did, that he would appear on any certain day or that he would leave it unattended or in a condition to harm small children. Nor does the record suggest anywhere, anything which would warn or lead Goedde to inspect the tractor. Merely because Goedde owned the lot, and for no other reason, plaintiff argues that liability attaches. The gist of plaintiff’s argument is that Goedde should have foreseen all injury which might occur to children during the work being done by the various contractors and should have taken steps to prevent such injury. He is thus to be made responsible for the contractor’s trucks, the plumber’s blowtorch, the mason’s wheelbarrow, the carpenter’s saw and the landscaper’s lawnmower. This would result in an intolerable burden upon the lot owner who contracts with others to build for him.
There was no more reason to cast suspicion upon Bartosik’s tractor than to condemn the other workmen’s equipment. Trucks and tractors are most common today, and we do not consider them dangerous per se. See Schlatter v. City of Peoria,
According to the above authorities liability may not he imposed unless it appears that an owner knows or in the exercise of reasonable care should have known, of the dangerous condition causing the injury. To submit the question of Goedde’s liability, based upon the record in this case, to the jury was error.
The judgment against Groedde, the owner of the premises, should have been set aside by the trial court. Accordingly, that judgment is reversed.
Reversed.