Stollery v. Cicero & Proviso Street Railway Co.

Mr. Justice Carter delivered the opinion of the court: This is an action on the case brought in the circuit court of Cook county against appellants for wrongfully causing the death of appellees’ intestate, a boy about ten years of age. A judgment was obtained in the trial .court for $4000, which the Appellate Court affirmed, and this appeal followed. The appellants occupied in Oak Park, Illinois, a block bounded by Lake street, Harvey avenue, North boulevard and Cuyler avenue. On the south-east corner of this block was the power house of appellants. West of the southern portion of the power house was a building called the coal-bin. At the north end of the coal-bin was a frame made of timbers ten inches square which carried and supported certain sprocket wheels about thirty-one inches in diameter, with teeth some three and one-half inches in length, forming a part of a coal conveyor. Operating upon these sprocket wheels were two endless chains, between which ran strips of metal, which scraped and carried the coal from the coal-bin to the boiler room in the power house. This framework, with the sprocket wheels, was outside the buildings, unprotected, in plain view from the street, access to it from the street being open and unobstructed. Plaintiffs’ intestate was last seen alive on the afternoon of March 2, 1904. On March 4 he was found dead, his arm and clothing caught between one of the sprocket wheels and an adjacent beam of the supporting framework, about three feet from the ground. When found his body was frozen, his clothing torn and one side of his face was worn away, apparently by the rubbing of the sprocket wheel. The declaration alleges and the evidence tends to prove that this dangerous machinery was left unguarded and unprotected in a thickly-settled neighborhood, on land that was unfenced; that appellants knew that children had been in the habit of playing about said machinery, and that while in the exercise of ordinary care for his own safety, appellees’ intestate was caught by said sprocket wheel and killed on March 2, 1904. At the close of the plaintiffs’ evidence, and again at the close of all the evidence in the case, appellants asked the court to instruct the jury to find a verdict in their behalf. These instructions were refused. Appellants contend that there is no evidence justifying the verdict,—first, because it does not appear that the negligence alleged and proved was the proximate cause of the death; second, because it does not appear that deceased was in the exercise of reasonable care; third, that it does not appear that the child was attracted by said machinery; and fourth, it does not appear that appellees’ intestate died from injuries sustained by him from said conveyor. Under the decisions of this State unguarded premises supplied with dangerous attractions are regarded as holding out an implied invitation to children, which will make the owner of the premises liable for injuries to them even though the children be technical trespassers. Whether or not such premises are attractive to children is a question for the jury. (City of Pekin v. McMahon, 154 Ill. 141; Siddall v. Jansen, 168 id. 43; True & True Co. v. Woda, 201 id. 315.) While in an action of this nature the burden is upon the plaintiff to show the exercise of ordinary care to avoid the injury, to prove this, however, does not require direct evidence as to the injuries, but such care on his part may be inferred from the facts and circumstances in the case. Where there is no eye-witness to the killing of a person, his administrator may establish the exercise of ordinary care on the part of the deceased by the highest proof of which the case is capable, including the habits of deceased and any other facts and circumstances from which the jury might rightfully find that he was exercising such care. Collison v. Illinois Central Railroad Co. 239 Ill. 532; Chicago and Alton Railroad Co. v. Wilson, 225 id. 50; Illinois Central Railroad Co. v. Nowicki, 148 id 29; Baltimore and Ohio Southwestern Railway Co. v. Then, 159 id. 535; Chicago, Burlington and Quincy Railroad Co. v. Gunderson, 174 id. 495; Illinois Central Railroad Co. v. Cozby, 174 id. 109. The proof tends to show that the conveyor was run intermittently as coal was needed in the power house; that about forty feet from this framework there was a well on these premises, to which children were in the habit of coming for water; that on March 2, between one and two o’clock in the afternoon, a playmate of appellees’ intestate, who was at this well for water, saw him near the north end of the framework, the conveyor at that time being stationary; that a few minutes later she looked towards the conveyor and it was moving, but she did not then see the boy. He was not seen from that time until his body was found by a policeman on March 4. He was an intelligent and ordinarily careful boy, and could easily, when the machinery was not moving, have climbed on the framework, which was only three feet from the ground. The mother of appellees’ intestate was a widow, who had moved to a house near the power plant the day before the accident. Counsel for appellants contend that there is no evidence that she had looked for the boy after he had disappeared on March 2, and therefore they argue that she had not used due care in attending to him. We think there was such evidence. There was also evidence tending to show that the death was caused by the conveyor, and not, as contended by counsel, that it was caused by other means and the body afterwards placed where it was found. The conveyor was set in motion soon after appellees’ intestate was seen standing by it. He was never seen again alive. The position of his body and condition of his face and clothing would indicate that he was caught by the sprocket or chain and thereby forced into the position in which he was found. The argument of counsel that if the body had been there from March 2 until March 4 it would certainly have been seen by someone from the street is not borne out by the evidence. The rule of law is, as already stated, that the proof of ordinary care on the part of appellees’ intestate, as well as all the other elements of the action charged in the declaration, may be established by circumstantial evidence. The evidence tended on all these points to sustain the declaration. It cannot be said, as a matter of law, that the death was not caused in the manner alleged. Appellants further contend that the trial court committed error in allowing the verdict of the coroner’s jury, which found that the deceased came to his death by being caught and crushed by the conveyor, to be introduced in evidence; that it was not shown it was the verdict of the coroner’s jury; that it was not shown to have been filed with the circuit clerk, as provided by paragraph 17 of the chapter on coroners, (Hurd’s Stat. 1908, p. 519,) and also because it has the coroner’s name and seal attached, it being argued that the law does not authorize the coroner to attach his name to the verdict along with the jurymen. The proof shows that this was the verdict of the coroner’s jury. This verdict is, in substance and in form, very similar to the one introduced in United States Life Ins. Co. v. Vocke, 129 Ill. 557. The coroner in that case, as in this, attached h.s name to the verdict under the names of the jurymen. Under the reasoning of that case the verdict was properly admitted in evidence. Appellants further contend that instruction 9 offered by them was improperly refused. We do not think the refused instruction was in all respects correctly drawn, but all of the proper elements of the instruction were substantially covered by other instructions given for appellants. The same may be said of refused instruction No. 10, concerning which appellants complain. We find no material error in the record. The judgment of the Appellate Court will be affirmed. Judgment affirmed.