Mr. Justice Scott
delivered the opinion-of the court:
It is urged that the declaration herein does not state a cause of action. This question arose in the circuit court upon a motion in arrest of judgment. Appellee, upon leave obtained in this court, has filed here a certified copy of the brief and argument of appellant which was filed in the Appellate Court. It appears therefrom that in that court the insufficiency of the declaration was not suggested, but it is said that where a declaration omits to aver a material fact essential to a valid cause of action, the judgment will be reversed although no question is made below. It is unnecessary to discuss this proposition, as the authorities cited in support thereof do not apply in a court of review, where the question is pending on appeal from or writ of error to an intermediate court which is likewise a court of review. We can only determine whether the Appellate Court decided correctly. (National Bank v. LeMoyne, 127 Ill. 253.) In doing this it is manifest we can consider no matters except those which were presented to that court. (Sherwood v. Illinois Trust and Savings Bank, 195 Ill. 112.) We will not consider an error assigned on the record of the court of original jurisdiction which was not presented by appellant’s brief to the Appellate Court where the same party is the appellant here.
Appellant assigns as error the action of the circuit court in overriding its motion for a peremptory instruction at the conclusion of all the evidence, and appellee insists that this alleged error was not presented in the Appellate Court. We find, on examination of the brief filed by the electric company in that court, that it was there urged that there was no evidence tending to prove negligence on the part of the defendant or the exercise of due care by the plaintiff, and as this is. the question which appellant argues under this assignment in this court, we think it proper for our consideration.
It is earnestly insisted on the part of the electric company that the relation of the plaintiff to the defendant was that of trespasser or licensee, and that consequently the defendant was not liable unless the injury .to the plaintiff resulted from some willful or wanton act of the defendant. We think this a misapprehension. The only rig'ht the electric company had under the ordinance was a right to place its wire under the sidewalk. It was entitled to permanently occupy no more space for that purpose than was necessary for the wire and any devices used to protect the wire and to keep persons from coming in contact therewith. It had no right or permission to occupy the whole of the space under the sidewalk where the accident occurred.
It appears that there was nothing to prevent access from the alley in the rear to the lot fronting on this space; that boys were in the habit of playing on that lot and passing' into this space under the sidewalk to shelter themselves from rain or sun, or for any other purpose that occurred to them, and that this was done without objection from the owner of the lot or the city, and on the occasion of this accident the plaintiff went under this sidewalk in company, with three other boys, one of whom, at least, had been ih the habit of playing on the lot.
It is manifest that it was not the purpose of the city that the public should have access to and use this space as it did the space above the sidewalk. If, however, the curb, which was at the outer edge of this sidewalk and prevented access to the space from the street, had not been there, there could be no question but that the public would have had the same right to pass under this sidewalk from the street that they would have to pass under a stairway or platform of a station of an elevated railway located in the street. There the public has, and exercises, the right to pass over the same portion of the street on two different levels, and it seems apparent that the public would have the same right to pass upon this spaed where they came upon it from, an abutting lot, in the absence of objection from the lot owner.
Plaintiff was therefore rightfully in this space, and he was not there by the leave or license of the defendant. The same rule does not apply to him as applies to one who goes upon the property of another, whether with or ; without permission. He was not upon property either owned or controlled by the defendant.
It is then urged that he became a trespasser when he laid his hand upon the wire, by virtue of his act in touching the wire without the permission of the owner thereof, and Hector v. Boston Electric Light Co. 161 Mass. 558, is referred to in support of this position. In that case the plaintiff received the injury while up.on the roof of a building where he had no right and where he was neither invited nor licensed to be. The distinction is apparent. Plaintiff’s act in taking hold of the wire was an accident. The injury resulted from that accident, and while it may be conceded that he had no right to take hold of the wire, the question still remains, who was responsible for the injury that resulted from his accidental contact with that wire? So far as being in the space under the sidewalk was concernéd, plaintiff had the same right to be there that the defendant had, -but he could not rightfully interfere with the property of the defendant or occupy the space already pre-empted by it. Appellant urges that the rights of the parties to be in this space were not equal, for the reason that it was there in pursuance of the terms of an ordinance and could not be summarily ejected, as the plaintiff, perhaps, might be. This is wholly immaterial. The question is not how long either party had the right to remain, but what right they had to be there at the instant of the accident.
The evidence tends to prove that the electric cable passing along under this sidewalk had been in use from eight to fourteen years; that in some places the insulation was defective; that the cable had been out of repair on several occasions near the place where this accident occurred; that the wire had on frequent occasions prior to this accident been “grounded” in the vicinity where this trouble occurred; that the effect of that condition is to send a current of electricity along and on the lead covering of the cable; that when a “ground” would occur, the lead on the outside of the cable would be electrified from the “ground,” in each direction, to a place where there would be another “ground,” or a point in the cable where the current would be broken or stopped by a different covering used at the joints. This was a high tension wire, carrying 2000 volts of electricity, and the lead covering, when so electrified, would severely shock -and burn any human being coming in contact therewith.
Electricity is a subtle and powerful agent. Ordinary care exercised by those who make a business of using .it for profit, to prevent injury to others therefrom, requires much greater precaution in its use than where the element used is of a less dangerous character. As there' is greater danger and hazard in the use of electricity, there must be a corresponding exercise of skill and attention for the purpose of avoiding injury to another, to constitute what the law terms “ordinary care.” The care must be commensurate with the danger. 10 Am. & Eng. Ency. of Law, (2d ed.) p. 873; Alton Illuminating Co. v. Foulds, 190 Ill. 367; Perham v. Portland General Electric Co. 33 Ore. 451; Haynes v. Raleigh Gas Co. 114 N. C. 203; McLaughlin v. Louisville Electric Light Co. 100 Ky. 173; Ennis v. Receiver, 87 Hun, 355.
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Mr. Justice Scott
delivered the opinion-of the court:
It is urged that the declaration herein does not state a cause of action. This question arose in the circuit court upon a motion in arrest of judgment. Appellee, upon leave obtained in this court, has filed here a certified copy of the brief and argument of appellant which was filed in the Appellate Court. It appears therefrom that in that court the insufficiency of the declaration was not suggested, but it is said that where a declaration omits to aver a material fact essential to a valid cause of action, the judgment will be reversed although no question is made below. It is unnecessary to discuss this proposition, as the authorities cited in support thereof do not apply in a court of review, where the question is pending on appeal from or writ of error to an intermediate court which is likewise a court of review. We can only determine whether the Appellate Court decided correctly. (National Bank v. LeMoyne, 127 Ill. 253.) In doing this it is manifest we can consider no matters except those which were presented to that court. (Sherwood v. Illinois Trust and Savings Bank, 195 Ill. 112.) We will not consider an error assigned on the record of the court of original jurisdiction which was not presented by appellant’s brief to the Appellate Court where the same party is the appellant here.
Appellant assigns as error the action of the circuit court in overriding its motion for a peremptory instruction at the conclusion of all the evidence, and appellee insists that this alleged error was not presented in the Appellate Court. We find, on examination of the brief filed by the electric company in that court, that it was there urged that there was no evidence tending to prove negligence on the part of the defendant or the exercise of due care by the plaintiff, and as this is. the question which appellant argues under this assignment in this court, we think it proper for our consideration.
It is earnestly insisted on the part of the electric company that the relation of the plaintiff to the defendant was that of trespasser or licensee, and that consequently the defendant was not liable unless the injury .to the plaintiff resulted from some willful or wanton act of the defendant. We think this a misapprehension. The only rig'ht the electric company had under the ordinance was a right to place its wire under the sidewalk. It was entitled to permanently occupy no more space for that purpose than was necessary for the wire and any devices used to protect the wire and to keep persons from coming in contact therewith. It had no right or permission to occupy the whole of the space under the sidewalk where the accident occurred.
It appears that there was nothing to prevent access from the alley in the rear to the lot fronting on this space; that boys were in the habit of playing on that lot and passing' into this space under the sidewalk to shelter themselves from rain or sun, or for any other purpose that occurred to them, and that this was done without objection from the owner of the lot or the city, and on the occasion of this accident the plaintiff went under this sidewalk in company, with three other boys, one of whom, at least, had been ih the habit of playing on the lot.
It is manifest that it was not the purpose of the city that the public should have access to and use this space as it did the space above the sidewalk. If, however, the curb, which was at the outer edge of this sidewalk and prevented access to the space from the street, had not been there, there could be no question but that the public would have had the same right to pass under this sidewalk from the street that they would have to pass under a stairway or platform of a station of an elevated railway located in the street. There the public has, and exercises, the right to pass over the same portion of the street on two different levels, and it seems apparent that the public would have the same right to pass upon this spaed where they came upon it from, an abutting lot, in the absence of objection from the lot owner.
Plaintiff was therefore rightfully in this space, and he was not there by the leave or license of the defendant. The same rule does not apply to him as applies to one who goes upon the property of another, whether with or ; without permission. He was not upon property either owned or controlled by the defendant.
It is then urged that he became a trespasser when he laid his hand upon the wire, by virtue of his act in touching the wire without the permission of the owner thereof, and Hector v. Boston Electric Light Co. 161 Mass. 558, is referred to in support of this position. In that case the plaintiff received the injury while up.on the roof of a building where he had no right and where he was neither invited nor licensed to be. The distinction is apparent. Plaintiff’s act in taking hold of the wire was an accident. The injury resulted from that accident, and while it may be conceded that he had no right to take hold of the wire, the question still remains, who was responsible for the injury that resulted from his accidental contact with that wire? So far as being in the space under the sidewalk was concernéd, plaintiff had the same right to be there that the defendant had, -but he could not rightfully interfere with the property of the defendant or occupy the space already pre-empted by it. Appellant urges that the rights of the parties to be in this space were not equal, for the reason that it was there in pursuance of the terms of an ordinance and could not be summarily ejected, as the plaintiff, perhaps, might be. This is wholly immaterial. The question is not how long either party had the right to remain, but what right they had to be there at the instant of the accident.
The evidence tends to prove that the electric cable passing along under this sidewalk had been in use from eight to fourteen years; that in some places the insulation was defective; that the cable had been out of repair on several occasions near the place where this accident occurred; that the wire had on frequent occasions prior to this accident been “grounded” in the vicinity where this trouble occurred; that the effect of that condition is to send a current of electricity along and on the lead covering of the cable; that when a “ground” would occur, the lead on the outside of the cable would be electrified from the “ground,” in each direction, to a place where there would be another “ground,” or a point in the cable where the current would be broken or stopped by a different covering used at the joints. This was a high tension wire, carrying 2000 volts of electricity, and the lead covering, when so electrified, would severely shock -and burn any human being coming in contact therewith.
Electricity is a subtle and powerful agent. Ordinary care exercised by those who make a business of using .it for profit, to prevent injury to others therefrom, requires much greater precaution in its use than where the element used is of a less dangerous character. As there' is greater danger and hazard in the use of electricity, there must be a corresponding exercise of skill and attention for the purpose of avoiding injury to another, to constitute what the law terms “ordinary care.” The care must be commensurate with the danger. 10 Am. & Eng. Ency. of Law, (2d ed.) p. 873; Alton Illuminating Co. v. Foulds, 190 Ill. 367; Perham v. Portland General Electric Co. 33 Ore. 451; Haynes v. Raleigh Gas Co. 114 N. C. 203; McLaughlin v. Louisville Electric Light Co. 100 Ky. 173; Ennis v. Receiver, 87 Hun, 355.
We are of the opinion that the appellant’s failure to use some device to guard its wires in this space under this sidewalk so that no person could inadvertently touch the cable tended to show a lack of ordinary care.
It is urged, however, that' the plaintiff was guilty of contributory negligence, as a matter of law, in going under the sidewalk, and we are referred to the case of Heimann v. Kinnare, 190 Ill. 156. This is a case where a boy lost his life by drowning. A small pond was partly filled with water and the water was partly covered with ice, there being an open space of water around the edge .of the ice. For the purpose of ascertaining if the ice thereon was strong, he ran down an incline leading to the water, jumped over the open water upon the edge of-the'ice and ran out toward the middle of the pond, where the ice gave way and he was drowned. He knew before going there that the water was beyond his depth. He had knowledge of the danger consequent on the breaking of the ice. In the case at bar the plaintiff did not know that the wire in question was under the sidewalk and did not know that there was danger there of the kind he encountered. He was attracted to this place by fire in the vicinity, occasioned by the “grounding” of this wire. At the place where the accident occurred he was not near enough to the fire so occasioned to be in danger from the fire itself, and while negligence cannot be attributed to the defendant for a failure to correct the difficulty which had resulted in the wire being “grounded” on this occasion, as it does not appear that it either had or ought to have had notice that the wire was so “grounded,” still it was natural for the boy to gratify his curiosity by going into this space for the purpose of looking át the fire, and in so doing he went where he had a right to go and where he had no reason to anticipate any serious danger. The question of contributory negligence was one for the jury.
We do not think the doctrine of traps or that of attractive nuisances applicable.
, No other errors have been discussed.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.