Putney v. Keith

Me. Justice Wateeman delivered the opinion of the court. Actions of negligence are based upon injury sustained in consequence of failure to discharge a legal duty. In such actions the first requisite is to show the existence of the duty which it is insisted has not been performed. Shearman & Redfield on Negligence, 4th Ed., Secs. 3, 4, 5, 15; DeLavergne Machine Co. et al. v. McLeroth, 60 Ill. App. 529. It is not sufficient in a declaration to say, generally, that it was the duty of the defendant to do certain things. The pleader must state facts from which the law raises .the duty. Ayers v. City of Chicago, 111 Ill. 406-412. What was the duty which Martha ICeith owed to Susan Putney ? She did not invite, but knew that Susan had been invited and had come to the house; that she was in the habit of passing, in running around a circuit, through the rooms of the house, among other rooms through the kitchen of the house and a doorway leading into such kitchen; she knew that Susan was a child, two years of age. Martha owed to Susan the duty of not intentionally or willfully injuring her, or preparing for her a trap or pitfall with the intention that Susan should or might fall therein. She owed to her the duty of doing her work with ordinary care for the safety of Susan. Martha was not employed to- look after and watch out for the safety of Susan. Her duties were, primarily, to care for the house, to keep it in order, and perform such household duties as the housekeeping involved. She owed no duty to Susan, except such as arose from her knowledge of the presence and habits or ways of Susan. She did not owe to Susan the duty of ceasing to discharge her household duties in the ordinary way, and in the manner by which they are by ordinarily prudent people discharged. On the contrary, for her to have folded her hands and said she could not do her usual household duties, because Susan was upon the premises, would have been a breach of her duty to look after and care for the house. Negligence is the opposite of care and prudence; is an omission to use the means reasonably necessary to avoid injury to others. Great Western R. R. Co. v. Haworth, 39 Ill. 346; Chicago & Alton R. R. Co. v. Pennell, 94 Ill. 448. It has been defined to be an omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the course of human affairs, would do, or doing something which a prudent and reasonable man would not do. Blythe v. Birmingham Water Works, 11 Exchq. 784; Parrott v. Wells, Fargo & Co., 15 Wallace, 524. It has also been defined as the absence of care, according to circumstances (Vaughan v. Taff Vale Railway Co., 4 Barnwell & Adolphus, 30); and it has also been defined as a violation of the obligation that enjoins care and caution in what we do. Tonawanda R. R. Co. v. Hunger, 5 Denio, (N. Y.) 256. Ordinary care is such diligence as men of common prudence usually exercise about their own affairs; ordinary care as to property is such care as every prudent man takes of his goods. Chicago & Alton R. R. Co. v. Scott, 42 Ill. 132-143. Ordinary care is consistent with slight negligence, except in instances such as the work of common carriers of passengers, in' which the law imposes extraordinary diligence; whoever exercises ordinary care in the conduct of his affairs not to injure others, is not responsible for hurts that come from acts performed with such care. Shearman & Redfield on Negligence, 4th Ed., Sec. 11, Vol. 1; Parrott v. Wells, 15 Wall. (U. S.), 524-538; Inhabitants of Shrewsbury v. Smith, 12 Cush. (Mass.) 177-180; Railroad Co. v. Yeiser, 8 Penn. St. 366-374-376; Sullivan v. Scripture, 3 Allen (Mass.), 564-565; Harvey v. Dunlap, Lalor’s Supplement (Hill & Denio, N. Y.), 193; Losee v. Buchanan, 51 N. Y. 476-484; Panton v. Holland, 17 Johns. 92. Is a housekeeper or house servant bound to respond in damages for injuries which arise from the discharge of household duties in the manner and with the care for the safety of others which prudent people exercise under like circumstances ? There are persons holding judicial office, who,as children,lived in families where the kitchen was also the dining and sitting room, the living room of the household, and there are to-day many thousand families in which such is the case. In all households it is necessary to have fire — a dangerous thing. It is necessary to boil watér, to cook food therein. The steam escaping from the tea kettle is tempting to childish fancy. In such a household, if, while the mother’s or servant’s attention is engaged, or for a moment she is called out of the room, a little daughter, two years of age, falls into the fire or puts her hands in the boiling water, or pulls the kettle down upon her, is the person who, in the discharge of her household duties, had placed these dangerous things within reach of the child, responsible for whatever injuries may through such means have come to it? Can the discharge of household duties in the manner and with the care they are usually performed under the same circumstances by prudent people constitute actionable negligence ? In the absence of allegation to the contrary, it must be assumed against the pleader that Martha was engaged in a proper domestic occupation for which such a dish of hot water was required at the particular place in the room where it was put, and that she had a right to perform that domestic office at that particular time. It is quite true that negligence can not be attributed to infants of tender years. The question presented in this case is not at all whether Susan exercised ordinary care. It is admitted that she exercised all the care that could be expected from a child of her years. The question is, does the declaration allege actionable negligence ? Was Martha, the defendant, in discharging her household duties in the manner which prudent people do under like circumstances, guilty of negljgence ? That is to say, as a general proposition, to avoid actionable negligence toward children of tender years, must, in the ordinary household, all fires be put out, all boiling of water suspended, all cleaning of rooms and other things, with hot suds, omitted, whenever there are such children in the house, unless some grown person is put in charge of the children or they are locked out of the room where such household duties are being performed ? It is common knowledge that the placing of pails or tubs of hot water upon the floor of a kitchen, to which small children have access, for the purpose of cleaning the room, is an ordinary occurrence, and an act such as prudent people perform in the discharge of household duties. It is not the case, that having about a house things that attract childish attention and by which they may be injured is necessarily negligence. If such things be the ordinary utensils and appliances made use of by prudent people, and they be kept and used in such manner as they ordinarily are by prudent péople, such keeping and use is not negligence as regards adults or infants. Sullivan v. Scripture, 3 Allen (Mass.), 564-565; Railroad Co. v. Veiser, supra; Brown v. Collins, 53 N. H. 442; Brown v. Kendall, 6 Cush. 292; Crofton v. Metropolitan Ry. Co., L. R. 16 C. P. 300. The exceptions in favor of infants of tender years, discussed and recognized in City of Pekin v. McMahon, 154 Ill. 141, and Siddall v. Jansen, 168 Ill. 43, are not applicable to the present case. The pond allowed to exist within the city of Pekin, was neither a necessary, customary, nor usual thing in such cities, and attention had been called to its danger. The elevator kept in the store of Jansen was not only accessible to children, but the child injured by crawling into the shaft" thereof, was the son of one of the employes of the firm and permitted by the defendants to visit its father at the store and run about in the vicinity of the elevator shaft. Undoubtedly that which is ordinary care as respects adults, may not be as regards children; nevertheless, as regards children as well as adults, the care of persons hav- ¡ ing no special relation to them, required by law, is that^ which prudent people exercise under like circumstances. We are not aware of any case in which a person engaged in the discharge of ordinary household duties in the usual manner and with the care and circumspection which prudent people usually give to such affairs, has been held liable for an injury to either adult or infant, resulting from such conduct on the part of such housekeeper or servant. The judgment of the Circuit Court is affirmed.