{ "id": 2855366, "name": "Stanislav Cada by Marie Cada, Appellant, v. The Fair, Appellee", "name_abbreviation": "Cada v. Fair", "decision_date": "1914-05-21", "docket_number": "Gen. No. 19,251", "first_page": "111", "last_page": "117", "citations": [ { "type": "official", "cite": "187 Ill. App. 111" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "12 Kan. 354", "category": "reporters:state", "reporter": "Kan.", "opinion_index": 0 }, { "cite": "229 Ill. 390", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5629262 ], "opinion_index": 0, "case_paths": [ "/ill/229/0390-01" ] }, { "cite": "241 Ill. 252", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5656270 ], "opinion_index": 0, "case_paths": [ "/ill/241/0252-01" ] }, { "cite": "210 Ill. 357", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3303465 ], "opinion_index": 0, "case_paths": [ "/ill/210/0357-01" ] }, { "cite": "210 Ill. 603", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3302876 ], "opinion_index": 0, "case_paths": [ "/ill/210/0603-01" ] }, { "cite": "191 Ill. 226", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3246602 ], "opinion_index": 0, "case_paths": [ "/ill/191/0226-01" ] }, { "cite": "156 Ill. 244", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3023341 ], "opinion_index": 0, "case_paths": [ "/ill/156/0244-01" ] }, { "cite": "234 Ill. 125", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5641755 ], "opinion_index": 0, "case_paths": [ "/ill/234/0125-01" ] }, { "cite": "121 Ill. App. 602", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2494218 ], "opinion_index": 0, "case_paths": [ "/ill-app/121/0602-01" ] }, { "cite": "169 Ill. 429", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3183991 ], "opinion_index": 0, "case_paths": [ "/ill/169/0429-01" ] }, { "cite": "240 Ill. 259", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3423184 ], "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill/240/0259-01" ] }, { "cite": "134 Ill. 57", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5438967 ], "opinion_index": 0, "case_paths": [ "/ill/134/0057-01" ] }, { "cite": "38 Ill. 242", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 428274 ], "opinion_index": 0, "case_paths": [ "/ill/38/0242-01" ] }, { "cite": "41 Ill. 222", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5217478 ], "opinion_index": 0, "case_paths": [ "/ill/41/0222-01" ] }, { "cite": "158 Ill. 375", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 6046338 ], "weight": 3, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill/158/0375-01" ] } ], "analysis": { "cardinality": 660, "char_count": 13618, "ocr_confidence": 0.5, "pagerank": { "raw": 9.095626876101069e-08, "percentile": 0.5058598010926506 }, "sha256": "2eec42b6e3eebad338c5d29ea89934d797b69e1dd1bbadbe621037ef99fd38bd", "simhash": "1:daadee5281bfdd94", "word_count": 2357 }, "last_updated": "2023-07-14T20:57:10.884591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Stanislav Cada by Marie Cada, Appellant, v. The Fair, Appellee." ], "opinions": [ { "text": "Mr. Justice Fitch\ndelivered the opinion of the court.\nIn this case, the Circuit Court sustained a general and special demurrer to the plaintiff\u2019s declaration, and the plaintiff elected to stand by his declaration, whereupon judgment was entered against him for costs, and from that judgment this appeal was perfected.\nThe declaration contains six counts. Bach of them sets up an ordinance of the city of Chicago, forbidding the sale to any minor of \u201cany gun, pistol or other firearm, or any toy gun, toy pistol, or other toy firearm, in which any explosive substance can be used,\u201d under a penalty of not more than one hundred dollars for each offense. Each count also alleges that in July, 1912, the plaintiff was a minor, twelve years old, residing with his mother in Chicago, and that the defendant was conducting a retail store in Chicago for the sale of merchandise. The sixth count (which, so far as the objections raised by the demurrer are concerned, is the least vulnerable) stated that the defendant, wholly disregarding the duty imposed upon it by the city ordinance, sold and delivered to the plaintiff, without the knowledge or consent of his parents, \u201ca certain toy gun in which an explosive substance, to wit, compressed air, could be used,\u201d and th\u00e1t \u201cwhile the said plaintiff on said day after said purchase was playing with said gun, the said gun was fired off and exploded and a small shot therefrom was discharged, whereby, owing to said negligence of said defendant, the plaintiff was and became injured in his left eye,\u201d etc.\nAppellee\u2019s counsel contend that the declaration is demurrable on three, grounds: First, that the declaration does not contain any averment that the plaintiff was in the exercise of due care for his own safety at and before the time of the accident; second, that the alleged sale of the toy gun to the plaintiff, in violation of the ordinance, is not and cannot be the proximate cause of the injury complained of; and, third, that in any event a toy gun operated by compressed air is not within the terms or meaning of the ordinance. Counsel for appellant, in their brief and argument, have only discussed the last of these objections.\nAs to the first objection, the rule is well settled in this State that before a plaintiff can recover damages for an injury caused by the defendant\u2019s negligence he must aver and prove that he was himself in the exercise of due care. Gerke v. Fancher, 158 Ill. 375, 379. In some of the earlier cases in this State a contrary rule seems to have been held. Cox v. Brackett, 41 Ill. 222; Illinois Cent. R. Co. v. Simmons, 38 Ill. 242; Consolidated Coal Co. v. Wombacher, 134 Ill. 57; but in Walters v. City of Ottawa, 240 Ill. 259, 266, these cases were reviewed and held to have been overruled, in effect, by the later cases of Gerke v. Fancher, supra, and Jorgenson v. Johnson Chair Co., 169 Ill. 429. See also the review of these cases in Madl v. Chicago City Ry. Co., 121 Ill. App. 602. It is true that in an action brought in behalf of a minor, if the child is under the age of seven years, no such averment or proof is necessary; and if he is over seven years of age, it is not necessary to aver or prove that he exercised such care as an adult would have exercised under the same circumstances. Here the allegation is that the plaintiff was twelve years old. It was therefore necessary to aver and prove that he was in the exercise of such care as a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances. McGuire v. Guthmann Transfer Co., 234 Ill. 125. The want of such an averment cannot be defended on any theory that the alleged negligence of the defendant was wanton, reckless or wilful. If such a charge had been made, contributory negligence on the part of the plaintiff would not defeat a recovery. Wabash R. Co. v. Speer, 156 Ill. 244. But the mere statement in the declaration that the defendant sold to the plaintiff an article of merchandise in violation of a city ordinance is not equivalent to an allegation of wilful, wanton or reckless misconduct, and therefore it was incumbent upon the plaintiff to allege the exercise of due care on his part. Browne v. Siegel, Cooper & Co., 191 Ill. 226; Wilson v. Illinois Central R. Co., 210 Ill. 603. While the declaration in this respect would probably be held sufficient, after verdict, to sustain a judgment in plaintiff\u2019s favor, because due care on the part of plaintiff might, perhaps, in such case be fairly and reasonably implied from the terms of the declaration, no such implication is permissible before verdict and upon demurrer. \u201cBefore verdict the intendments are against the pleader, and upon demurrer to a declaration nothing will suffice, by way of inference or implication, in his favor.\u201d Gerke v. Fancher, supra.\nThe question of proximate cause is a question of fact for a jury to decide where an issue is formed and a trial had, with evidence upon that issue. But where the question is presented by a demurrer to the declaration followed by judgment on the pleadings, it becomes a question of law. Schulte v. Schleeper, 210 Ill. 357. It has been said that \u201cto constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence;\u201d that \u201cit is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence;\u201d and that \u201cif the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury.\u201d Seithe v. Commonwealth Electric Co., 241 Ill. 252. In this case, however, we do not think a court can fairly hold that the facts presented show, necessarily and as a matter of law, that the negligence charged did nothing more than to furnish a condition by which the injury was made possible. On the contrary, we think a jury might reasonably find, from the facts alleged in the declaration, that the injury was the natural and probable consequence of the negligence charged, and was of such a character that an ordinarily prudent person ought to have foreseen that such injury might probably occur as a result of negligence. In Illinois Cent. R. Co. v. Siler, 229 Ill. 390, a woman, in order to protect her property, endeavored to put out a fire caused by sparks from one of the defendant\u2019s locomotives, and in so doing was burned to death; and it was held that the voluntary act of the woman, although it was an intervening cause, was nevertheless a consequence of the wrongful act of the defendant, which with reasonable diligence it might have foreseen and therefore ought to have anticipated. The Court there said (p. 395): \u201cIt was not a new and independent cause intervening between the wrong and the injury or disconnected from the primary cause and self-operating, but was itself the natural result of appellant\u2019s original negligence.\u201d On page 394 of the same opinion, the Court quotes as follows, from Atchison, T. & S. F. Ry. Co. v. Stanford, 12 Kan. 354: \u201cAny number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first and every intermediate result, is to be considered, in law, as the proximate result of the first wrong cause.\u201d. The manifest object and purpose of the city ordinance set forth in the declaration in this cause was the protection of children and the public generally against the consequences of permitting children to handle toy weapons in which \u00e1n explosive substance can be used. The very fact that such an ordinance was passed tends to prove that the city council, at least, deemed such consequences sufficiently natural and probable, as well as sufficiently serious, to require an ordinance forbidding the sale of such toys to children.\nAs to the third and main objection to the declaration, it is urged that the use of the word \u201cfirearm\u201d in the ordinance shows that the city council only intended to prohibit the sale of such real or toy weapons as can be discharged by the ignition of gun powder or other explosive substance in which fire is one of the essential elements. The common meaning of the word \u201cfirearm\u201d is \u201ca weapon which acts by the force of gun-powder\u201d (Webster\u2019s Dictionary; 40 Cyc. 852). No doubt this is the meaning in which the word \u201cfirearm\u201d is used in the phrase \u201cgun, pistol, or other fire.arm.\u201d Immediately following that phrase, however, is another clause, viz.; \u201cor any toy-gun, \u00cd0\u00ed/-pistol, or other toy firearm, in which any explosive substance can be used.\u201d In this clause the words \u201cgun,\u201d \u201cpistol\u201d and \u201cfirearm\u201d are each qualified by the word \u201ctoy\u201d. A toy is \u201ca plaything for children\u201d (Webster\u2019s Dictionary). Manifestly, a \u201cfirearm\u201d designed to be a plaything for children must be something different from a real \u201cweapon which acts by the force of gun-powder.\u201d The natural meaning of a \u201ctoy firearm\u201d is a child\u2019s plaything resembling a firearm in some respects.\nThe ordinance does not forbid the sale of all toy firearms, however. It only prescribes the sal\u00e9 of \u201ctoy firearms in which an explosive substance can be used;\u201d and it is insisted, with much force, that compressed air is not an \u201cexplosive substance,\u201d within the meaning of the ordinance. In many of the older dictionaries and encyclopaedias, compressed air is not mentioned as among the explosives in common use. In the last edition of the Encyclopaedia Britannica, however (11th Ed. Vol. 10, p. 81), after defining the word \u201cexplosives\u201d as: \u201ca general term for substances which by certain treatment \u2018explode\u2019, i. e., decompose or change in a violent manner so as to generate force,\u201d it is said that explosives are divided into two classes, \u201cpropellants\u201d and \u201cdetonatorsthat \u201cthe simplest example of propellants of the smokeless class are compressed gasses,\u201d and that \u201ccompressed air was the propellant for the Zalinski dynamite gun.\u201d The declaration in this case does n\u00f3t describe the toy weapon sold to the plaintiff, further than to say in different counts that it was an \u201cair-gun,\u201d or that it was \u201cso constructed as to be discharged by the explosion of air,\u201d or \u201cby the sudden release of compressed air, causing explosion,\u201d or (in the sixth count) that it was \u201ca certain toy gun in which an explosive substance, towit, compressed air, could be used.\u201d For aught that appears in the declaration, the air gun sold to the plaintiff may have been a toy constructed in imitation of the Zalinski dynamite gun, in which the explosive substance or \u201cpropellant,\u201d known as compressed air, could be used.\nAs to the last two of the grounds above stated, we think the demurrer should have been overruled. But for the reason that the declaration does not contain any allegation that the plaintiff was exercising due care for his own safety, or state any facts equivalent thereto, the judgment of the Circuit Court must be affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Fitch" } ], "attorneys": [ "Sabath, Levinson & Stafford, for appellant.", "Smith & Wallace, for appellee; Carl L. V. Exselsen, of counsel." ], "corrections": "", "head_matter": "Stanislav Cada by Marie Cada, Appellant, v. The Fair, Appellee.\nGen. No. 19,251.\n1. Negligence, \u00a7 126 \u2014necessity that due care on part of plaintiff he averred and proved. Before a plaintiff can recover damages for an injury caused by the defendant\u2019s negligence, he must aver and prove that he was himself in the exercise of due care.\n2. Negligence, \u00a7 126*\u2014degree of care required to he alleged and proved in suit hy a minor. In an action brought in behalf of a minor over seven years of age to recover damages for injuries caused by defendant\u2019s negligence, it must be averred and proved that plaintiff was in the exercise of such care as a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances.\n3. Negligence, \u00a7 196*\u2014when proximate cause a question of law. The question of proximate cause is a question of fact for a jury where an issue is formed and a trial had, with evidence on that issue, but where the question is presented by a demurrer to the declaration followed by judgment on the pleadings, it becomes a question of law.\n4. Negligence, \u00a7 124*\u2014when declaration not demurrable. In an action by a minor to recover damages for personal injuries alleged to have resulted from a sale to him of a toy firearm forbidden by ordinance, held that the declaration was not demurrable on the ground that the facts alleged did not show that the sale was the proximate cause of the injury.\n5. Weapons, \u00a7 1*\u2014what constitutes toy firearms within meaning of ordinance. A toy air-gun held to be a toy firearm within the meaning of an ordinance forbidding the sale to minors of \u201cany gun, pistol, or other firearm, or any toy gun, toy pistol, or other toy firearm, in which any explosive substance can be used.\u201d\nAppeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.\nAffirmed.\nOpinion filed May 21, 1914.\nSabath, Levinson & Stafford, for appellant.\nSmith & Wallace, for appellee; Carl L. V. Exselsen, of counsel.\nSee Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0111-01", "first_page_order": 137, "last_page_order": 143 }