Margolis v. Bremner Bros.

218 Ill. App. 304, 1920 Ill. App. LEXIS 284

• Court: Appellate Court of Illinois
• Decided: May 28, 1920
• Docket: Gen. No. 25,205
• Status: Published

Opinion

Mr. Presiding Justice Matchett

delivered the opinion of the court.

This was an action on the case for personal injuries sustained by plaintiff, a child between 6 and 7 years of age, as a result of alleged negligence of the defendant. At the close of plaintiff’s evidence the court directed the jury to return a verdict for the defendant, which the jury did, and judgment was entered on the verdict. The question is whether the court properly directed the verdict.

Appellant says: “The evidence shows that plaintiff was riding on a side step of a bakery wagon owned and operated by the defendant; that this bakery wagon had a covered top, and that the step on which the plaintiff was riding was on the left side of the bakery wagon, about five (5) feet from the front of the wagon; that the wagon was*proceeding eastward, along Polk street, at a slow trot; that just before it reached Robey street the driver of the wagon shouted in a loud voice to plaintiff, while he was so riding on the side step, ‘Hey! get off!’ but that the driver did not stop the bakery wagon or decrease its speed or make any provision for the plaintiff to get off this side step; that immediately • after the driver spoke these words, the plaintiff started to get off this side step and fell under the rear left wheel of the bakery wagon.”

This statement is substantially correct but omits one material matter testified to by plaintiff himself. He says: “I was hitching on the wagon and the man told me.to get off, the driver of the wagon.” It thus clearly appears, we think, that plaintiff was a trespasser. There was no count in the declaration alleging that plaintiff was wantonly or wilfully injured by defendant.

We think on the uncontradicted facts that plaintiff could not recover.

Appellant relies on North Chicago City Ry. Co. v. Gastka, 128 Ill. 613, and Smorawski v. Chicago City Ry. Co., 211 Ill. App. 557. The defendants in both these cases were common carriers of passengers and there was, therefore, an implied invitation for any one to become a passenger who cared to do so. The rule in these cases would, therefore, not be applicable in this case. Scott v. Peabody Coal Co., 153 Ill. App. 103, is also cited, but in that case the defendant’s servant invited the plaintiff to ride upon the wagon. In Hayes v. Sampsell, 274 Ill. 258, the rules applicable where the' plaintiff, being a child, is on a conveyance by invitation of the owner, express or implied, are discussed, and the conclusion reached the defendants may in such cases be held liable. We do not think that rule applicable to the undisputed facts here. We think the court properly directed a verdict and the judgment will he affirmed.

Affirmed.

Mr. Justices Barnes and Gridley concur.-