Coppner v. Pennsylvania Co. , 12 Ill. App. 600 ( 1883 )

Bailey, P. J.

We are clearly of the opinion that, under the evidence in this case, the question whether the defendant was guilty of negligence as charged in the declaration, was a question for the jury, and that the instruction directing the jury to find the defendant not guilty was erroneous.

We do not deem it very material to determine whether the injury complained of was inflicted while the plaintiff was upon a public street of the city of Chicago or otherwise, although he seems to have been at the time within the boundaries of a street, it being admitted at the trial that Stewart avenue is a public highway leading south from the south bank of the south branch of the Chicago river. If, under this admission, we are to regard that edge of the abutment as the terminus of the street, it appears that the rails of the railway track on the bridge extended four or five inches onto the abutment, so that the place where the plaintiff was standing immediately prior to the injury, and the place where his foot was caught and the injury inflicted, were by at least that distance within the line which marked the terminus of the street.

But even if we are to regard the locus in quo of the injury, as being wholly upon the private grounds of the defendant, we think there was evidence which should have been submitted to the jury tending to charge the defendant with negligence. The general rule doubtless is, that the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees or others who come upon them, not by invitation, either express or implied, but for their own convenience or pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be. 1 Thompson on ¡Negligence, 303.

To this rule, however, there are various exceptions, and one-well recognized by the authorities is, where the owners of grounds are held liable for injuries to children, although trespassing at the time, where, from the peculiar nature and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such injury to How therefrom, as actually happened. In such cases it is held that the question of negligence is for the jury. See Union Stock Yards, etc. v. Rourke, 10 Bradwell, 474, and the cases there cited' The distinguishing principle upon which all such cases rest is, that the persons injured were mere children, without judgment or discretion, and likely to be drawn by childish curiosity, or the instincts of childhood, into places of danger.

In the present case, the jury should have been left to find from the evidence, whether the bridge in question was a dangerous structure, from which the defendant should reasonably have anticipated such injury to happen as the plaintiff actually suffered therefrom, and whether the servant of the defendant in charge of said bridge, under all the facts and circumstances appearing in evidence, used ordinary and reasonable care and precaution to prevent the happening of such injury.

The case of City of Chicago v. Gavin, 1 Bradwell, 302, decided by this court, and afterward by the Supreme Court (Gavin v. City of Chicago, 97 Ill. 66), to which we are referred, does not, so far as we can see, conflict in the least with the view we have taken in this case. In that case there was no charge of negligence in operating the bridge, but merely in the manner in which it was constructed and maintained. The question was simply as to the measure of care required of a municipal corporation in the maintenance of its bridges, and it was held to be its duty to keep and maintain them in a reasonably safe condition, but not so as to render injuries to persons using them, impossible. Here the defendant is a private corporation charged with negligence in operating a bridge erected by it either on its own grounds or in the pub-lie highway, for its own convenience and benefit, and the question is, whether there is any evidence for the jury to consider, tending to support the charge of negligence. The propositions now before us being so essentially different in all their features, from those involved in Gavin’s case, we are unable to perceive the bearing of that decision as an authority here.

At the trial the plaintiff’s counsel offered to prove that previous to the injury to the plaintiff, other persons had been injured at the same place, in the same manner, which evidence was excluded. As to the propriety of this ruling, the views of the members of this court are not quite harmonious, and we therefore forbear to express any opinion upon the question. But for the error in the instruction to the jury, the judgment will be reversed and the cause remanded.

Judgment reversed.