#### John F. Devine, Administrator, Appellee, v. Joseph C. Ficklin et al., Appellants.

Gen. No. 20,358.

(Not to he reported in full.)

Appeal from Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

Reversed with finding of fact.

Opinion filed May 12, 1915.

Statement of the Case.

Action by John F. Devine, administrator of the estate of Anna S. Keenan, deceased, against Joseph C. Ficklin and others, defendants, to recover damages for the death of plaintiff’s intestate alleged to have been caused by defendants’ negligence.

From a verdict and judgment for plaintiff for $400, defendants appeal.

The first count of the complaint alleged that on August 17, 1910, and prior thereto, the defendants were the owners and agents of and were in possession and control of a lot improved with a two-story frame building known as number 5238 Aberdeen street, Chicago, Illinois; that plaintiff’s intestate resided in one of the flats with her parents as one of the family, while other apartments were occupied by other tenants; that two lavatories or water-closets for the joint use of the tenants were on the ground adjoining the'rear part of said building; that at or near to said building was a certain garden or vegetable patch in which were growing different kinds of vegetables jointly used by and supplying food and nourishment to said tenants; that the defendants negligently allowed the water closets to become and remain in an unsanitary condition and allowed the pipes, drains and sewers to become and remain in an old, worn out and rotten and broken condition, thereby causing sewerage and fecal *594matter to leak from said lavatories in the ground and close to said vegetable patch, which leakage was liable to infect said vegetables with disease, was dangerous to the health and lives of persons eating said vegetables and inhabiting said apartments and constituted a nuisance there; that defendants had or should have had notice thereof; that said vegetable patch and ground became infected with a germ of infections disease known as typhoid fever, and that plaintiff’s intestate while exercising ordinary care for her own safety and welfare, ate of said vegetables and contracted said infectious disease, known as typhoid fever, which resulted in her death.

The second count was substantially like the first with the additional allegation that the conditions therein mentioned existed prior to the renting of said premises by the parents of the deceased, and were known to defendants and unknown to the deceased.

The third count charged a violation by defendants of the provisions of section 1061, entitled “Leasing-Unsanitary Buildings,” and also section 1065, entitled “Unsanitary Building Nuisance,” of article VII of the Municipal Code, and the seventh count charged a violation by defendants of section. 1225 of said Municipal Code, entitled “Adequate Water-Closets-Cases:’’■ and each of said third and seventh counts alleged that plaintiff’s intestate contracted said disease of typhoid fever by eating said vegetables which were infected with the germs of said disease.

The evidence established the following facts: That the plumbing- in the water closets, provided by defendants for the use of the tenants in the building, was permitted to become and to remain out of repair; that by reason thereof said water closets were in an unsanitary and filthy condition; that fecal matter overran said closets into the basement of the tenements and upon the small tract of ground adjoining, in which vegetables were cultivated and grown; that the father *595of plaintiff’s intestate, while living in the building; contracted typhoid fever and that he used one of said water-closets, while he was ill with said disease; that shortly thereafter plaintiff’s intestate ate some of said vegetables, following which, she contracted said disease and died therefrom.

Abstract of the Decision.

1. Landlord and tenant, § 226 * —when evidence insufficient to show that negligence of landlord was proximate cause of death of tenant’s child. In an action against a landlord by an administrator to recover for the death of a tenant’s child, alleged to have been caused by defendants’ negligence as to sanitary arrangements whereby fecal matter infected with typhoid germs leaked fronr the drain pipes and infected "vegetables in a garden used by the *596tenants, which were eaten by plaintiff’s intestate who thereby contracted typhoid fever which caused her death, the evidence examined and held not sufficient to show that such negligence was the proximate cause of the death.

*595There was no direct proof tending to show that the vegetables which were grown in said tract of ground were infected with typhoid fever germs, nor that plaintiff’s intestate contracted typhoid fever from eating said vegetables. The evidence showed that fecal matter discharged by a typhoid fever patient usually contained the germs of said disease; that when such fecal matter in the ground comes in contact with growing vegetables, it is possible that any typhoid fever germs in said fecal matter may lodge upon and adhere to said vegetables; that a person eating vegetables which are thus infected with said germs may thereby contract typhoid fever.

Benjamin F. J. Odell, for appellants.

Richard J. Finn, for appellee; George H. Foster, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Baume

delivered the opinion of the court.

*5962. Presumptions, § 23 * —when presumption without foundation. A presumption cannot be based upon a presumption.