Commonwealth Electric Co. v. Melville

Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is claimed in behalf of appellant that the boy “was a trespasser, or at best a mere licensee,” when injured, and that appellant owed him no further duty than not to maliciously injure him. The basis of the contention is that the space underneath the sidewalk ivas private property of the city, not open to use or occupation by the public. There is evidence tending to show that the vacant lot in front of which the accident occurred was not infrequently used as a playground by boys of the neighborhood, that some of these were frequently in the habit of going under the sidewalk in the course of their play after a ball or for other reasons, and that there was no fence at the rear of the lot. It is doubtless true that the space underneath the sidewalk was not intended for ordinary public use, nevertheless the place was left open and accessible from the private property adjoining, without barrier or other notice to prevent boys at play, or others, from going under for shelter perchance, for a stray ball, or from mere curiosity, where, as in this instance, the presence of smoke or lire invited investigation as to its cause and extent. If appellant was under no obligation or duty to use ordinary care and skill toward appellee then it is not liable to him for the want of it. Gibson v. Leonard, 143 Ill. 182, 189. As it is said in that case, “the owner of land and buildings assumes np duty to one who is on his premises by permission only, and as a mere licensee, except that he will refrain from willful or affirmative acts which are injurious.” But appellant was not the owner of the premises where appellee was injured. It, too, was a mere licensee, and its license did not authorize it to make the premises dangerous to other licensees having no knowledge or reason to expect the existence of such danger, by locating its wires in ways not authorized by city ordinances. Appellant was not given, by the ordinance, any exclusive right to use the space under sidewalks for its lines of wire any more than “through, upon, over and under the streets, avenues, alle}7s,” etc., as provided by the ordinance. The general rule is that the occupant is responsible for injuries inflicted upon another by reason of the neglect or failure to keep the premises, or at least the portion so occupied by him, in repair. West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210, 218. Appellee was not a licensee of appellant nor a trespasser upon its premises. The license given by the city ordinance gave appellant the right to maintain and operate its wires under the sidewalk, not, however, in such a manner as to exclude others therefrom or make it dangerous for those lawfully going there. The wire in this case w7as maintained upon public property and it was the duty of appellant to take reasonable precautions against injuring persons lawfully there, and the duty extends to all who have the right of any kind to come upon the place to which the wires are attached. Keasby on Electric Wires, p. 274. In this case the danger was concealed. There was nothing in the appearance of the cable to indicate to one not an expert that it was itself charged with the electric current, which it was intended to insulate. The facts are very different from those in Sullivan v. Boston & A. R. Co., 31 N. E. Rep. 128, where the defendant was the owner of the premises and “had a right to arrange and use its property in any lawful manner,” and owed the deceased “ no duty with respect to it, except to refrain from setting a trap for him and from doing him intentional or wanton harm.” In the case before us appellant knew that the current was liable to be grounded at this particular place, for it had occurred before. It knew, or ought to have known, that the place was easily accessible, and liable to be visited by persons having no knowledge that an electric cable was there. It knew, or ought to have known, that when the current was “grounded,” contact with the cable was dangerous, and that such danger might not be apparent to ordinary observation. The question of liability for injury by electricity is not dependent solely upon the relation of the parties. Keasby on Electric Wires, Sec. 237-251. Our attention has not been called to any cases which hold that under such conditions the fact that the person injured was only a licensee, exempted another licensee from liability where liability for negligence would otherwise exist. The question of negligence was for the jury. See Griffin v. United Electric Light Company, 164 Mass. 492.

It is claimed that the trial court"erred in refusing certain instructions, one of which stated that a child of seven years of age may be guilty of contributory negligence, and that if the plaintiff was not exercising such care as could be reasonably expected from a child of his age and intelligence, and such lack of care contributed to the injury, the verdict should be for the defendant; citing City of Pekin v. McMahon, 154 Ill. 141-154. All that was proper in the instruction was given in another instruction at appellant’s instance, and there was no error in refusing the one referred to.

It is not seriously urged that appellant was guilty of no negligence in leaving the cable exposed as it was under the conditions existing, but it is said that the verdict for §5,000 was so excessive as to indicate passion and prejudice in the jury. The court required a remittitur reducing the amount to §3,500. We can not regard the view of the jury as to the proper amount to be awarded for damages in this case as indicative of any improper feeling. There is room for a legitimate difference of opinion under the evidence. "We are better satisfied with the amount of the judgment as entered than we might have been with the larger sum, but are unable to find any sound reason for reversing the judgment on account of the view taken by the jury.

Other points are raised which in view of what ive have said need not be specifically discussed.' Finding no error in the judgment, it must be affirmed.