Szymczak v. Schillinger Bros.

Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, a minor, brought suit alleging the maintenance by defendant of an attractive nuisance whereby he was injured. He had judgment for eight hundred and fifty dollars. i

Defendant was engaged in the business of laying concrete and asphalt floors and erecting concrete buildings, and was in possession of a lot on North Seeley avenue, in Chicago, where it melted the tar used in making asphalt. After the tar was melted in a vat it was poured into barrels and allowed to cool. Plaintiff, six years old, living near by, was playing on the lot with other children; they were making tar balls. By standing on a piece of concrete, which he placed for the purpose, he reached into one of these barrels and burned his hand in the hot tar.

We are referred to no case holding a barrel or any receptacle of tar to come within the rule of a danger attractive to children, or, as it is sometimes called, an attractive nuisance. The barrel cannot be said to possess a quality attractive to.children, as does a turntable or a “push car,” or boards or logs floating on a pool of water, which have been held to be attractive nuisances. In Newman v. Barber Asphalt Paving Co., 190 Ill. App. 636, the court declined to apply this doctrine to a wagon loaded with tar, although it was there urged as it is here that this was “attractive to children and appealed to childish curiosity and instinct to play with and in the making of balls of tar. ’ ’ We are not willing to extend the doctrine of the turntable cases to include a barrel of tar.

Plaintiff lived a very short distance from this lot, on which there was no building except a shed in the rear. With other children he frequently used the lot as a playground. It was while playing there that he noticed the barrel of tar. What is said in McDermott v. Burke, 256 Ill. 401, is applicable to the facts before us. The court there said (p. 406):

“It is a necessary element of the liability that the thing which causes the injury is tempting to children and to constitute a means of attracting them upon the premises which the owner should anticipate. The dangerous thing must be so located as to attract them from the street or some public place where they may be expected to be. 'An owner would not be liable if he maintained something for his own use which might be dangerous but which would only be found by children going upon his premises as trespassers.”

We hold that the defendant was not guilty of actionable negligence, and the judgment is reversed with a finding of fact.

Reversed with finding of fact.