| Ill. | Nov 1, 1897
delivered the opinion of the court:
We are authorized to review the facts in this case to the extent of ascertaining whether there was, at the close of the plaintiff’s testimony, evidence tending to show the acts of negligence charged in his declaration, for the reason that at the close of such testimony the trial court, at the request of defendants, gave to the jury a peremptory instruction to find for the defendants. The rule is, that where an instruction is offered, at the close of plaintiff’s testimony, to instruct the jury to find for the defendant, and error is assigned on the giving or refusal to give such instruction, this court may review the facts to the extent of ascertaining whether or not there was such evidence tending to establish plaintiff’s declaration as should have been submitted to the jury. (Wenona Goal Co. v. Holmquist, 152 Ill. 581" date_filed="1894-10-29" court="Ill." case_name="Wenona Coal Co. v. Holmquist">152 Ill. 581; Cicero Street Railway Co. v. Meixner, 160 id. 320; Pullman Palace Car Co. v. Laack, 143 id. 242; Lake Shore and Michigan Southern Railway Co. v. Richards, 152 id. 59; Purdy v. Hall, 134 id. 298; Chicago and Northwestern Railway Co. v. Dunleavy, 129 id. 132; Bartelott v. International Bank, 119 id. 259; Simmons v. Chicago and Tomah Railroad Co. 110 id. 340.) The rule is also that an instruction taking the case from the jury and directing a verdict for the defendant should only be given where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insufficient, if credited, to sustain a verdict for plaintiff. Lake Shore and Michigan Southern Railway Co. v. Richards, supra.
The first count of the declaration charges negligence of the defendants in permitting to continue open and unguarded the doorway of an elevator shaft and the door to the partitioned enclosure surrounding it on their premises, whereby plaintiff, being of the age of five years, was seriously injured by a descending cage of the elevator. To the entire declaration the plea of the general issue was interposed. It is urged by appellees this elevator shaft was not in a public place in their store, but was secluded and was not intended as a passenger elevator, and that plaintiff was a trespasser. This court has held in City of Pekin v. McMahon, 154 Ill. 141" date_filed="1895-01-14" court="Ill." case_name="City of Pekin v. McMahon">154 Ill. 141, that the general rule relieving a private owner of property from liability against injuries sustained by strangers or trespassers from the unsafe condition of his property is not applicable to children of tender years, who may be attracted thereon by such conditions or surroundings as may appeal to childish curiosity. An ascending and descending cage of an elevator might be said to be of such character, and to hold out an implied invitation to a five-year-old child to approach it and satisfy his childish curiosity. An unguarded or open door, or one which might readily be opened from the outside, might in such cases, as to a child, be fraught with great danger, and constitute negligence on the part of the person permitting such conditions to exist. It was a question which should have been submitted to a jury to say whether or not there was negligence under this count.
Another of the counts of plaintiff’s declaration was based on the alleged negligence of defendants in not complying with a certain ordinance of the city of Chicago relating to elevators of the character of-, the one which injured plaintiff, and which ordinance is as follows:
Section 1056, article 9, chapter 15.—“Hoistways, in which an elevator shall be used, shall have a fireproof shaft, starting at the lowest part reached by such elevator, and from such point extended up through and six feet above the roof.
Sec. 1057. “Doors in such shaft shall be made of metal, and the catches or fastenings upon such doors shall be so placed that they can be opened only from the inside of the shaft, and entirely under control of the elevator operator.”
The evidence produced by the plaintiff below tends to show there was not, on the part of the defendants, a compliance with this ordinance. A peremptory instruction having been given to the jury to find for defendants, there was, consequently, no evidence produced by them. As there was evidence tending to show there was no compliance with the provisions of this ordinance and that plaintiff was rightfully at the place of the injury, it was a question which should have been submitted to the jury.
Whether or not plaintiff was a trespasser was also a question of fact for the jury where there was evidence tending to show he .was not. The evidence does show that near the location of this elevator in appellees’ store it was not infrequent that children of other employees and of customers were seen. While the elevator was not, as it appears, a regular passenger elevator, it was'used by employees who desired to ascend to the upper floors. The elevator, together with the enclosures around it, was but a short distance from the main floor and was connected by open doors. To this main floor the genera] public had constant access and were there by the invitation of the firm engaged in business. Plaintiff was there by invitation of his father, who was an employee of this firm and in charge of one of its departments. It was not uncommon for other employees to have their children at the store. If the father had any right to invite plaintiff, then the invitation to a child of five years (the age of this plaintiff) would, in its ordinary sense, have given him the right to be in those places where his father was.
In City of Pekin v. McMahon, supra, this court, after referring to the general rule that a private owner of property is under no obligation to strangers or trespassers to keep his premises in safe condition against those who come upon such premises without invitation, said (p. 147): “An exception, however, to this general rule exists in favor of children. Although a child of tender years who meets with an injury upon the premises of a private owner may be a technical trespasser, yet the owner may be liable if the things causing the injury have been left exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts. Unguarded‘premises which are thus supplied with dangerous attractions are regarded as holding out implied invitations to such children.”
Without passing on the weight of the evidence on this ¡^articular branch of the case or the liability of appellees, as it must again be submitted to a jury, we hold there was sufficient evidence that appellant was not a trespasser, to submit the question to a jury.
We hold it was error for the trial court, under the circumstances, to give the peremptory instruction on behalf of the defendants, and the judgments of the Appellate Court for the First District and of the Superior Court of Cook county are both reversed, and the cause remanded to the Superior Court of Cook county for a new trial in conformity with the views in this opinion.
Reversed and remanded.