Defendant in error, by his next friend,
brоught an action of trespass on the case in the circuit court of Cook county against the city of Chicago, the Sanitary District of Chicago, the Commonwealth Edison Company and the South Side Elevated Railroad Company to recover damages fоr personal injuries caused by reason of his coming in contact with an electric light wire carrying a high voltage of electriсity owned by plaintiff in error, the city of Chicago, and used by it for the purpose of supplying current to- arc lights in the streets of the city. This аrc light wire stretched along the south side of Fortieth street and passed under an elevated railway structure extending over Fortiеth street at the intersection of Langley avenue, along which street the elevated railway ran. At the intersection of Langlеy avenue and Fortieth street the wire dipped from poles twenty-five feet in height to brackets under the elevated structure, tо which it was attached by means of glass insulators. These brackets were fastened by means of wooden arms to the steel pоsts supporting the elevated structure. The distance from the wire so fastened to the surface of the street was approximately thirteen feet. The elevated structure was supported by means of iron posts set in concrete foundations. On two sides of these posts cross-pieces were attached from the foundation to the superstructure, giving the appearаnce of latticework. The wire in question passed within ten inches of certain of these steel supports on the south side of Fоrtieth street just over the sidewalk at the intersection of the streets and was what is known as No. 6 weatherproof standard arc light wirе, the weatherproofing being a triple-braided cotton covering saturated with a weather insulating compound, designed for the purpose of protecting the wire from water, snow and ice but not sufficient insulation to protect persons coming in cоntact with the wire. The wire at the time of the accident carried approximately 4400 volts of electricity. The defendant in еrror was a boy eleven years and seven months of age at the time of the injury, and the evidence shows that he possessed thе intelligence of a boy of that age. O11 .the date of the injury, while playing “tag” at this place, he climbed up the latticework fastened to the side of the post to the top thereof. When he reached the top of this pillar he came in contact with this wire and was severely injured.
On the trial of the case the plaintiff dismissed the suit as to the Commonwealth Edison Company and the South Side Elevated Railroad Company. The jury rendered a verdict against the other two defendants. The court granted a new trial to the sanitary district and entered judgment against the city of Chicago, alone, for the sum of $25,000. An appeal was perfected to thе Appellate Court for the First District, which affirmed the judgment of the trial court, and the case is brought here by the allowance of а writ of certiorari.
Plaintiff in error contends that in lighting its streets it was exercising its governmental function and therefore not liable to anyоne injured by coming in contact with wires used for that purpose. The point is conclusively settled contrary to the contention оf plaintiff in error. (Johnston v. City of Chicago,
On the merits of the case plaintiff in error contends that to authorize a reсovery it was incumbent on defendant in error to prove that the wire was alluring to childish instincts for amusement; that plaintiff in error knew it would bе made use of by children in play; that it was easily accessible to them and that injury might have been foreseen by the exercise of ordinary care. The wire was thirteen feet above the surface of the -ground and it is argued was not attractive to children; thаt if anything was attractive to them it was the latticed pillar of the elevated railroad company. The pillar was there when the wire was strung by plaintiff in error and the wire was placed within ten inches of the top of the pillar. If the pillar, constructed as it wаs, presented an attraction and allurement to children to climb it in their play and they did so use it in their childish sports, and plaintiff in error placed the dangerous wire in such close proximity to it that in its play a child might come in contact with the wire and be injured, the fact that the plaintiff in error did not construct or own the pillar would not, itself, relieve it from liability. Where an attractive thing is so locatеd that in yielding to its allurement a child is brought in direct contact with a danger placed there by someone else, the person responsible for creating the dangerous condition will be liable. (Seymour v. Union Stock Yards Co.
There is no error of law in the record which would justify a reversal of the judgment b,y this court. The controverted questions of fact were, so far as this court is concerned, conclusively settled by the judgment of the Appellate Court..
Judgment affirmed.
Cartwright, C. J„ and Dunn and Thompson, JJ., dissenting.