136 Ill. App. 495 | Ill. App. Ct. | 1907
delivered the opinion of the court.
It is a general rule that the owner or occupant of land is under no obligation to strangers to place guards around excavations on his land nor to keep his premises in a safe condition for the benefit of those who come upon his premises for their ¡own pleasure without invitation. There is an exception to tills rule in favor of a child of tender years, if the things causing the injury have been left exposed and unguarded and are of such a character as to be attractive to the child and to appeal to his childish curiosity and instincts. Such unguarded premises having upon them dangerous attractions are regarded as holding out implied invitations to such children, and the owner of the premises must use ordinary care to keep them in safe condition, for such children being without judgment are likely to be drawn by childish curiosity into places of danger, and the owner may be liable for an injury to them even though they are technical trespassers. City of Pekin v. McMahon, 154 Ill., 141; Siddall v. Jansen, 168 Ill., 43; True & True Co. v. Woda, 201 Ill., 315; and L. E. & W. R. R. Co. v. Klinkraft, 227 Ill., 439, are cases where such a liability has been recognized. In Heimann v. Kinnare, 190 Ill., 156; Seymour v. Union Stock Yards Co., 224 Ill., 579, and Hanna v. Iowa Cent. Ry. Co., 129 Ill. App., 134, the application of this principle was denied under the facts in those particular cases.
Whether this sidewalk, floating upon this pond within the limits of the street, was calculated to be attractive to a child of tender years, and was liable to lead such child into a place of danger, was a question of fact for the jury. Whether deceased was of such an age and had such a lack of intelligence, capacity and experience as to bring him within the protection of the rule above stated, was also a question of fact, unless it can be said that when any child has reached the age of ten years he is presumed as a matter of law to have such intelligence, capacity and experience as to exclude him from the protection of the rule. We think that cannot be decided by the court as a matter of law, especially in view of L. E. & W. R. R. Co. v. Klinkraft, supra, where a girl twelve years and eight months old was not treated as of such an age as to prevent her having the benefit of this principle. We must presume that under the facts set forth in the foregoing statement the jury might have found that Edgar was a child of tender years, within the meaning of the doctrine above stated, and that this floating sidewalk within the limits of the street was calculated to be attractive to such a child and liable to lead it into a place of danger. If, then, the raft had tipped over, or had proved insufficient to sustain the weight of the two boys, and the deceased had on that account fallen from the raft and been drowned, a case would have been made which would require submission to the jury; nor do we concede that the case would have been any different if the accident had not happened till the raft was outside the limits of the street. If by this attraction such a child was enticed into a place of danger in the street, upon a pond created by the city and upon a sidewalk owned by the city, a liability would continue for the result during all the time it was in that place of danger, or till some other cause intervened.
The serious question in the case is whether the fact that the raft did not sink or tip over, and that Edgar was not drowned because the raft was insufficient, or because, of any lack of ability to maintain himself upon it, but because when his brother was sinking and calling for help, he in his excitement'jumped from the raft to rescue him, authorized the court to hold as a matter of law that a new cause had intervened and that therefore plaintiff could not recover. Our conclusion is that the existence of this sudden emergency was one of the events which was liable to happen and to produce disaster to a child of tender years, and that the court could not say as a matter of law that the facts above stated did not tend to make a case for plaintiff.
The declaration alleged that Edgar fell from the raft. The proof was that he jumped from it. It is argued that this was such a variance as required the court to direct a verdict. In order to avail of a variance upon appeal the objection must have been made in the trial court, and the variance must have been particularly pointed out so as to enable the trial judge to pass upon it understandingly, and so as to enable the plaintiff to obviate the objection by amendment. Lehigh Valley Transportation Co. v. Post Sugar Co., 228 Ill., 121. The bill of exceptions in this case does not show that any question of variance was raised in the court below, and therefore it is not available here. It is urged that we should sustain the ruling of the court below because the declaration is defective. It is meagre and yet somewhat involved, but appellee did not demur thereto but joined issue, and we are of opinion that if appellant had recovered a verdict the declaration would have been sufficient to support it.
For the error in excluding the evidence and directing a verdict for appellee the judgment is reversed and the cause remanded.
Reversed and remanded.