Malmberg v. Bartos

Mr. Presiding Justice Freeman delivered the opinion of the court. This is an action of trespass on the case. Plaintiff in error, a child about seven years old, was injured by the son of the defendant in error, a boy of about four years, and it is sought to hold the father responsible in damages. At the conclusion of the testimony in behalf of the plaintiff, the trial court instructed the jury to find the defendant not guilty, which was done. A motion for a new trial was overruled and judgment rendered, which plaintiff now seeks to reverse. The defendant in error was the proprietor of a grocery store, and upon the day of the injury was unloading some ice upon the sidewalk in front of his place of business. To break up the ice he used a sharp axe or ice pick, which he left lying on the walk while he carried the ice into the store. The plaintiff, with another girl somewhat older, the defendant’s son and another boy, said to have been five or six years old, were playing or standing near. Plaintiff attempted to pick up a piece of ice, and was ordered off by the defendant’s four-year-old son, who told her to go away or he would “ fix her.” Upon her refusal the elder of the two boys seized and held her finger, while the defendant’s son picked up the axe and chopped the finger off. Counsel for plaintiff in error thus state their contention: “ The main question to be considered by the court is whether or not the defendant was guilty of negligence in leaving the axe lying upon the sidewalk in front of his store while these children were playing in close proximity thereto, or in other words, is an axe of itself a dangerous implement in the hands of children of immature years and judgment.” It is scarcely necessary to say that while an axe may be a dangerous instrument in the hands of a child, it does not necessarily follow that the defendant was guilty of negligence, or if he was, that his negligence was the proximate cause of the injury. In this case the injury does not appear to have been caused by the mere .act of leaving the axe lying on the sidewalk. It was not occasioned by the plaintiff’s running or hitting against the axe, nor was the axe being used as a plaything. As it lay upon the sidewalk, so far as the evidence shows, the axe was perfectly harmless. Its presence there did not in itself serve to create any danger to the children or to passers-by. The mere act of leaving it temporarily upon the walk was not negligence in and of itself. But it is said to have been negligent for defendant in error to leave the axe within easy reach and possession of his four-year-old boy, and that this negligence was the cause of the injury. This conclusion is not sustained by the evidence. The cause of the injury was not that the axe was in reach of the boy, but it was his willful intention to injure the plaintiff for trying to pick up a piece of the ice. The axe was the means by which the injury was inflicted, but not the cause of its infliction. It does not appear that the defendant in error had any ¡reason to suppose the axe would be so used, or that his small son would be guilty of conduct so cruel and malicious. “ A father is not, nor can he be, held responsible for the unauthorized trespasses of his minor children.” Paulin v. Howser, 63 Ill. 313. As is said in Wilson v. Garrard, 59 Ill. 51, “It would be unjust to hold the father responsible for the purely mischievous and willful conduct of the chil dren, as shown by this record.” The proof fails to sustain the averments of the declaration, and a verdict in favor of the plaintiff, if returned, could not have been sustained. Under these conditions the Circuit Court properly directed a verdict for the defendant. Simmons v. Chicago & Tomah Ry. Co., 110 Ill. 344-346. The judgment is affirmed.