Edwards v. Negley , 193 Ill. App. 426 ( 1914 )

Mr. Presiding Justice Thompson

delivered the opinion of the court.

Abstract of the Decision. 1. Negligence, § 19^*—when question of death from attractive nuisance for jury. The question of the cause of the death of a four-year-old boy who was found under a heavy truck, weighing three hundred and fifty pounds, on a lot belonging to defendant adjoining the father’s premises, and whether it was caused by an attractive nuisance negligently placed there by defendant or his employees, were questions of fact to be decided by the jury from the evidence in the case. 2. Witnesses, § 43*—when wife incompetent for husband though interested in suit. A wife is not a competent witness for a husband, although she is interested in the event of the suit where the husband is interested. 3. Witnesses, § 131*—when plaintiff competent in action for wrongful death. The father of a child, plaintiff in an action to recover damages for the benefit of next of kin resulting from alleged wrongful death of deceased, is a competent witness in his own behalf. ' 4. Witnesses, § 41*—when husband competent in behalf of wife. The father of a child, who, as administrator, is suing for damages for alleged wrongful death of the child, is a competent witness on behalf of his wife, who will, if judgment is recovered, have an interest which is her separate property. 5. Evidence, § 231*—when plat admissible though not accepted. A city plat of premises where an accident occurred, showing streets and alleys, is admissible in an action by an administrator for damages for wrongful death of his child, although the plat has not been accepted by the city, where the evidence is that the streets shown in the plat are used by the public and improved. 6. Instructions, § 87*—when erroneous on preponderance of evidence. An instruction which amounts to an argument as to what constitutes the preponderance of evidence, as between a single witness on one side and four or five witnesses on the other, is faulty as being abstract and very misleading. 7. Evidence, § 475*—what constitutes a preponderance of evidence. If a jury believe that a fact is established by the greater weight of evidence, it is proved by the preponderance of evidence. 8. Master and servant, § 870*—when instruction erroneous in action for injury to third person. In an action by a father as administrator against the owner of certain premises adjoining those occupied by- the parent, for damages for wrongful death of a four-year-old child, resulting from the falling of a heavy truck located on defendant’s premises and alleged to have been negligently placed there by defendant or his servants, an instruction that the master of a servant was chargeable with the injurious consequences of the servant’s acts done in the master’s service and within the scope of his employment, and that, if the jury believed from the evidence that the dangerous condition alleged in the declaration was caused by the acts of a servant of the defendant while in his service and in the scope of his employment, the defendant was bound by such acts, held to be imperfect and misleading when considered in connection with different counts in the declaration. 9. Negligence, § 107^*—when recovery for death of child barred by contributory negligence of parent. Where a father sues, as administrator of his four-year-old child for the benefit of next of kin, including the mother, to recover damages for wrongful death alleged to have been caused by the negligent acts of the owner of adjoining premises or his servants in placing on its side a large truck used in handling logs on the premises which were frequented by and were attractive to children, the defendant, although guilty of some negligence, is not liable if the mother of the deceased was guilty of contributory negligence in permitting the child to go about the premises in charge of his older brother. 10. Negligence, § 19*—when no recovery for death from attractive nuisance. A person who is somewhat negligent in placing and leaving a truck used to move logs upon premises, thus rendered attractive to and frequented by children, is not liable in an action by the father as administrator to recover damages for the wrongful death of a four-year-old child who went about the premises in charge of an older brother, the injury being caused by the overturning of the truck, if the older brother was himself guilty of negligence that contributed to the injuries of the child. 11. Negligence, § 19*—when instructions on attractive nuisance properly refused. Instructions on attractive nuisances are properly refused because requiring proof to show that premises where a four-year-old child was killed by the falling of a truck used in handling logs, were vacant, where the averments in one count are contradictory because alleging that the premises were vacant, and also alleging that the premises were attractive to children, and that the children were attracted to the premises by said dogs and truck and by the dangerous condition of said truck, and further alleging that logs were stored thereon, and under other counts of the declaration the lots were alleged to be attractive and that the child was killed by the dangerous condition of the truck.