City of Chicago v. McCrudden , 92 Ill. App. 257 ( 1900 )

Mr. Justice Sears

delivered the opinion of the court.

But one question is presented by the brief of appellant, viz : Does the evidence disclose such conduct on the part of appellee as constitutes in law contributory negligence, and hence bars a recovery? The only basis of the contention that it does is the fact that appellee when injured was walking backward, talking to other children who accompanied her. The question then is, does the fact that appellee was walking backward when injured of itself establish negligence as a conclusion of law. We are of opinion that it does not, and that the question was a question of fact properly submitted to -the jury. In determining if a certain course of conduct constitutes negligence on the part of a child, the child’s age, together with all surrounding circumstances, are to be considered by the jury. City v. Keefe, 114 Ill. 222; I. C. R. R. Co. v. Slater, 129 III. 99.

This child was at the time of the injury about twelve years of age. We are not prepared to hold that her conduct in walking backward for a few steps while talking to her playmates was so clearly negligent that all reasonable minds would agree in so pronouncing it. Instances are not wanting where it has been held that adults who had failed to keep their eyes upon the pathway they were following might yet be found to have been in the exercise of- ordinary care. City v. McLean, 133 Ill. 153; City v. Babcock, 143 Ill. 358; Pullman Co. v. Connell, 74 Ill. App. 447.

In City v. Babcock, supra, the court said :

“ A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in a search for possible holes or other defects, would be to establish a manifestly unreasonable and wholly impracticable rule.”

We hold that it was for the jury to determine under the evidence in this case whether in view of her age and other surrounding circumstances, the conduct of appellee was negligent, and we can not say that the finding of the jury in this behalf is manifestly against the weight-of the evidence. Mo other question is raised by counsel for appellant.

The judgment is affirmed.