Mr. Chief Justice Scholfield
delivered the opinion of the Court:
Appellant asked the court to instruct the jury as follows:
“The jury are instructed that the sidewalks of the city are not made for the purpose of a play-ground for children, nor as a mere place for the recreation of children, and that the condition of the sidewalk is only to be considered with reference to its use for the ordinary travel along the same.
“The jury are instructed that -if they believe, from the evidence in this case, that the deceased, Michael Keefe, was, at the time in question, playing upon the sidewalk, by rolling a hoop along the same, then you are instructed that if you believe, from the evidence, that he would not have fallen or have been injured if he had gone along the sidewalk in the ordinary mode, then you must find for the city, as the sidewalks are not made for the purpose of a plaj'-ground for children. ”
But the court refused to give the instructions, and this ruling presents the first and principal .question discussed in the arguments before us.
Counsel for appellant cite and rely upon Stinson v. Gardner, 42 Maine, 248, and Blodgett v. Boston, 8 Allen, 237, in support of the instructions. ' These decisions-are based upon the principle announced in Blodgett v. Boston, that the liability of towns and cities for injuries to persons or property occasioned by defects in highways, is intended to be commensurate only with the duty imposed on them,—that is, to keep them in repair, “so that they may be safe and convenient for travelers at all seasons of the year.” In the view of the New England courts there is no implied liability for injuries resulting from defective streets or sidewalks,—the liability is wholly statutory. And as observed by Dillon, in his work on Municipal Corporations, section 786, “an important consequence is, that every case of this character must be within the statute.” (See, also, notes on page 749, first edition.) On the contrary, we hold, on principles of common law, that an action for damages resulting from negligence will lie against a municipal corporation if the duty to make repairs is fully declared, and adequate means are put within the power of the corporation to perform the duty. Browning v. City of Springfield, 17 Ill. 143; Scammon v. City of Chicago, 25 id. 424; Clayhurgh v. City of Chicago, id. 535; City of Bloomington v. Bay, 42 id. 503.
It is not attempted to be controverted in this case, that the city of Chicago owes the duty to keep its streets, sidewalks, etc., in repair, and that this is the fact will be seen by reference to the various provisions of the general law in relation to the incorporation of cities, villages, etc., under which the city of Chicago is incorporated, applicable to this subject. (Rev. Stat. 1874, chap. 24.) Nor is it denied that the city had adequate means within its power for that purpose. There is no limitation in the statute that the streets shall be kept in repair “for travelers. ” They are to be kept in repair as streets, and, by necessary implication, for all the purposes to which streets may be lawfully devoted. We assume as self-evident that, with us, streets are open to the use of the entire public, as highways, without regard to what may be the lawful motives and objects of those traversing them,—that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not impinge upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition with those who are passing along them as travelers, or in the pursuit of their daily avocations. (See Donoho v. Vulcan Iron Works et al. 7 Mo. App. 447, and same case in 75 Mo. 402.) In crowded cities, their use for pleasure, and sometimes even for the promotion of health, may be regarded as a public necessity. On like principle, why may they not be used by children in play and amusement, so long as the rights of others being on or passing along the street shall not be prejudiced thereby? We can perceive no reason. Such use is certainly the universal custom, and the lawfulness of rolling hoops along streets, when not prohibited by ordinance, is impliedly conceded by the 92d subdivision of section 1, article 5, chapter 24, of the Revised Statutes, which empowers the common council to prohibit or regulate it by ordinance.. The right to regulate necessarily assumes the lawfulness of that which is to be regulated,—without regulation until it shall he prescribed, and in conformity with the regulation after it shall he prescribed. Since, then, there is not here shown to have been any ordinance either prohibiting or regulating the rolling of hoops, it is to be assumed that this child was, at the time he was injured, lawfully passing along the sidewalk,—that the fact that he was rolling a hoop, while pertinent on the question of whether he was guilty of eontributive negligence, did not, per se, deprive him of any right in respect of passage along the sidewalk which he would otherwise have had, and that the duty of the city towards him was precisely the same that it was towards a child of the same age and mental capacity, exercising the same degree of care, passing along the sidewalk without a hoop. Indeed, the rule seems to be, that although a party may be doing an unlawful act at the time he is injured through the negligence of another, this will not prevent a recovery, unless the act is of such a character as would naturally tend to produce the injury. (Sutton v. Town of Wauwabasa, 29 Wis. 22; Wharton on Negligence, (2d ed.) see. 995.) Whether this child was guilty of eontributive negligence, was a question of fact, to be determined by the jury from all the evidence in the case, and not a question of law, to be determined by the court from the circumstance that he was rolling a hoop. The law neither infers negligence, nor its absence, because he was rolling a hoop, since, as a matter of fact, he may have rolled a hoop along the sidewalk and yet have observed the highest degree of care in passing along,— i. e., it is not impossible that he may have done so, just as, at another time, he may have been passing along the sidewalk in a grossly negligent manner without a hoop, and on a business errand. The question of law is, simply, what is the degree of care he should have observed to entitle his administrator to recover. Whether, his conduct all considered, he observed that degree of care, was the question of fact.
These instructions, as framed, were argumentative of fact and law, rather than declarative of a simple rule of law, as instructions to the jury should be; and, in our opinion, their tendency was to mislead the jury, and'they were therefore properly refused.
Objection is urged that the instruction given at the instance of appellee limits the degree of care to have been observed by the intestate to such as, “from his age and intelligence, under the circumstances in evidence, was required.” The phraseology employed is not free of objection, hut we do not think the instruction calculated to mislead. Counsel say it should have been limited to “such care as might be expected from a person of his age and discretion.” Substantially, there seems no important difference. The circumstances in evidence are always to he taken into consideration in such cases; and if the intestate exercised such care as, under the circumstances, might be expected from one of his age and intelligence, it was sufficient.
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Mr. Chief Justice Scholfield
delivered the opinion of the Court:
Appellant asked the court to instruct the jury as follows:
“The jury are instructed that the sidewalks of the city are not made for the purpose of a play-ground for children, nor as a mere place for the recreation of children, and that the condition of the sidewalk is only to be considered with reference to its use for the ordinary travel along the same.
“The jury are instructed that -if they believe, from the evidence in this case, that the deceased, Michael Keefe, was, at the time in question, playing upon the sidewalk, by rolling a hoop along the same, then you are instructed that if you believe, from the evidence, that he would not have fallen or have been injured if he had gone along the sidewalk in the ordinary mode, then you must find for the city, as the sidewalks are not made for the purpose of a plaj'-ground for children. ”
But the court refused to give the instructions, and this ruling presents the first and principal .question discussed in the arguments before us.
Counsel for appellant cite and rely upon Stinson v. Gardner, 42 Maine, 248, and Blodgett v. Boston, 8 Allen, 237, in support of the instructions. ' These decisions-are based upon the principle announced in Blodgett v. Boston, that the liability of towns and cities for injuries to persons or property occasioned by defects in highways, is intended to be commensurate only with the duty imposed on them,—that is, to keep them in repair, “so that they may be safe and convenient for travelers at all seasons of the year.” In the view of the New England courts there is no implied liability for injuries resulting from defective streets or sidewalks,—the liability is wholly statutory. And as observed by Dillon, in his work on Municipal Corporations, section 786, “an important consequence is, that every case of this character must be within the statute.” (See, also, notes on page 749, first edition.) On the contrary, we hold, on principles of common law, that an action for damages resulting from negligence will lie against a municipal corporation if the duty to make repairs is fully declared, and adequate means are put within the power of the corporation to perform the duty. Browning v. City of Springfield, 17 Ill. 143; Scammon v. City of Chicago, 25 id. 424; Clayhurgh v. City of Chicago, id. 535; City of Bloomington v. Bay, 42 id. 503.
It is not attempted to be controverted in this case, that the city of Chicago owes the duty to keep its streets, sidewalks, etc., in repair, and that this is the fact will be seen by reference to the various provisions of the general law in relation to the incorporation of cities, villages, etc., under which the city of Chicago is incorporated, applicable to this subject. (Rev. Stat. 1874, chap. 24.) Nor is it denied that the city had adequate means within its power for that purpose. There is no limitation in the statute that the streets shall be kept in repair “for travelers. ” They are to be kept in repair as streets, and, by necessary implication, for all the purposes to which streets may be lawfully devoted. We assume as self-evident that, with us, streets are open to the use of the entire public, as highways, without regard to what may be the lawful motives and objects of those traversing them,—that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not impinge upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition with those who are passing along them as travelers, or in the pursuit of their daily avocations. (See Donoho v. Vulcan Iron Works et al. 7 Mo. App. 447, and same case in 75 Mo. 402.) In crowded cities, their use for pleasure, and sometimes even for the promotion of health, may be regarded as a public necessity. On like principle, why may they not be used by children in play and amusement, so long as the rights of others being on or passing along the street shall not be prejudiced thereby? We can perceive no reason. Such use is certainly the universal custom, and the lawfulness of rolling hoops along streets, when not prohibited by ordinance, is impliedly conceded by the 92d subdivision of section 1, article 5, chapter 24, of the Revised Statutes, which empowers the common council to prohibit or regulate it by ordinance.. The right to regulate necessarily assumes the lawfulness of that which is to be regulated,—without regulation until it shall he prescribed, and in conformity with the regulation after it shall he prescribed. Since, then, there is not here shown to have been any ordinance either prohibiting or regulating the rolling of hoops, it is to be assumed that this child was, at the time he was injured, lawfully passing along the sidewalk,—that the fact that he was rolling a hoop, while pertinent on the question of whether he was guilty of eontributive negligence, did not, per se, deprive him of any right in respect of passage along the sidewalk which he would otherwise have had, and that the duty of the city towards him was precisely the same that it was towards a child of the same age and mental capacity, exercising the same degree of care, passing along the sidewalk without a hoop. Indeed, the rule seems to be, that although a party may be doing an unlawful act at the time he is injured through the negligence of another, this will not prevent a recovery, unless the act is of such a character as would naturally tend to produce the injury. (Sutton v. Town of Wauwabasa, 29 Wis. 22; Wharton on Negligence, (2d ed.) see. 995.) Whether this child was guilty of eontributive negligence, was a question of fact, to be determined by the jury from all the evidence in the case, and not a question of law, to be determined by the court from the circumstance that he was rolling a hoop. The law neither infers negligence, nor its absence, because he was rolling a hoop, since, as a matter of fact, he may have rolled a hoop along the sidewalk and yet have observed the highest degree of care in passing along,— i. e., it is not impossible that he may have done so, just as, at another time, he may have been passing along the sidewalk in a grossly negligent manner without a hoop, and on a business errand. The question of law is, simply, what is the degree of care he should have observed to entitle his administrator to recover. Whether, his conduct all considered, he observed that degree of care, was the question of fact.
These instructions, as framed, were argumentative of fact and law, rather than declarative of a simple rule of law, as instructions to the jury should be; and, in our opinion, their tendency was to mislead the jury, and'they were therefore properly refused.
Objection is urged that the instruction given at the instance of appellee limits the degree of care to have been observed by the intestate to such as, “from his age and intelligence, under the circumstances in evidence, was required.” The phraseology employed is not free of objection, hut we do not think the instruction calculated to mislead. Counsel say it should have been limited to “such care as might be expected from a person of his age and discretion.” Substantially, there seems no important difference. The circumstances in evidence are always to he taken into consideration in such cases; and if the intestate exercised such care as, under the circumstances, might be expected from one of his age and intelligence, it was sufficient. What was said does not materially vary, in sense, from this.
Appellant asked, but the court refused to give, the following instruction:
“The jury are instructed, as a matter of law in this case, that the father and mother of Michael Keefe were entitled to his earnings until he arrived at the age of twenty-one years, and that until he arrived at the age of twenty-one years the brothers and sisters of Michael Keefe were not entitled to any pecuniary aid from him, and should therefore only consider the pecuniary loss, if any, that you may believe, from the evidence, (if you should find the city guilty,) the father and mother of Michael Keefe may have sustained.”
And this, also, is urged as error. We think the instruction was properly refused. The statute does not so limit the right of recovery. The jury may give, in such cases, “such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased,” etc. (Rev. Stat. 1874, chap. 70, sec. 2.) The question is, in its nature, incapable of exact determination, (Chicago and Alton Railroad Co. v. Shannon, 43 Ill. 347,) and the jury should therefore calculate the damages in reference to a reasonable expectation of benefit, as of right, or otherwise, from the continuance of the life. (Franklin v. S. E. Railroad Co. 3 Hurl. & Nor. 211; Dalton v. S. E. Railroad Co. 93 E. C. L. 296.) Parents, and even brothers and sisters, might reasonably expect, in many ways, to derive pecuniary benefit from the continued life of the intestate, as of grace and favor, if not of right, at any age of life, and our statute imposes the duty of support, in the event of their becoming paupers, of the parent by the child, and of one brother or sister by another brother or sister. Rev. Stat. 1874, chap. 107, sec. 2.
No objection was taken to the sufficiency of the declaration, by demurrer or motion in arrest, and no question arose on the trial on the admission or exclusion of evidence. No error is claimed in any instruction given at the instance of appellee, on the question of damages, nor is it claimed that any error was committed in refusing to give any instruction asked by appellant on that subject, other than the one to which we have already referred. But the point is made that the circuit court erred in not definitely instructing the jury on that question, of its own motion. That the court might very properly have done so, or, indeed, that it was most advisable that it should have done so, we may concede, yet we can not hold that the omission was error. Appellant’s counsel had the matter entirely in his own hands, and consistently with our practice, it was his duty to raise the question he now wishes to discuss, by requiring some ruling thereon during the trial. He might certainly consent to let the jury retire without instructions on the subject of damages, or on any other subject; and when, here, he permitted them to retire instructed only as they were, we think he must be deemed to have waived any rights that he might otherwise have had to be further heard in that regard. He presented no instructions to the court, in writing, on the subject of damages, generally, nor does he appear to have made any request of the court to instruct them upon that subject, generally. His objection can not be now urged. The question of the amount of damages, as we have repeatedly held, is not before us, in cases like the present.
The judgment is affirmed.
Judgment affirmed.