{ "id": 5112592, "name": "Chicago Consolidated Bottling Co. v. McGinnis", "name_abbreviation": "Chicago Consolidated Bottling Co. v. McGinnis", "decision_date": "1894-02-01", "docket_number": "", "first_page": "325", "last_page": "327", "citations": [ { "type": "official", "cite": "51 Ill. App. 325" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "37 Ill. App. 484", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 859936 ], "opinion_index": 0, "case_paths": [ "/ill-app/37/0484-01" ] }, { "cite": "47 Ill. 265", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5270859 ], "opinion_index": 0, "case_paths": [ "/ill/47/0265-01" ] }, { "cite": "28 Ill. App. 72", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "75 Ill. 93", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2698858 ], "opinion_index": 0, "case_paths": [ "/ill/75/0093-01" ] } ], "analysis": { "cardinality": 368, "char_count": 5338, "ocr_confidence": 0.464, "pagerank": { "raw": 1.5601108194013535e-07, "percentile": 0.6767771016765842 }, "sha256": "9686c5c4955c06c47b72b8795475fe3bf0e546b44e1487d3fe5d5609349389d9", "simhash": "1:98c3b2d4ec43169d", "word_count": 962 }, "last_updated": "2023-07-14T18:36:15.137575+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago Consolidated Bottling Co. v. McGinnis." ], "opinions": [ { "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nIn June, 1890, the appellee, a child of seven years, was injured by falling \u2022 from and being run over by a \u201c pop wagon,\u201d the property of, and driven by a servant of, the appellant.\nThe facts are that the wagon had stopped in front of a house, Ho. 550 West Ohio street, and the fourth house west of Wood street. The home of the child was at Ho. 553, nearly opposite. House Ho. 550 was the home of the mother-in-law of the driver of the wagon, and his wife was there. He left the wagon and went into the house, and remained, as a witness says, ten or twelve minutes.\nThere was a \u201c helper \u201d to the driver, but whether he also went into the house or remained on the wagon is disputed.\nOne woman testified that he went into the house; both the driver and the helper say he did not, and the helper says that he remained at the wagon arranging the bottles.\nIt must be taken as true on the record that the child, with others, was playing about the wagon, and that when the driver returned and started off at considerable speed, the child was upon a hanging step on the side of the wagon. There is nothing in the case showing that either of the men had notice that the child was there, though they might readily have seen him.\nThe conflict of evidence was for the jury to decide, and if both men left the wagon for several minutes unattended, and unsecured in any way by fastening the horses\u2014then if the child were injured as a consequence, the case would, as to those features, be within the doctrine of Lynch v. Nurdin, 1 Q. B. 29 (1 Ad. & El. N. S.) 41 Eng. C. L. 422, often cited with approval by the Supreme Court. See the case stated in Weick v. Lander, 75 Ill. 93.\nIt appears that the route over which the duty of the driver would take him did not extend to Ho. 550 West Ohio nor west of Wood street\u2014bnt that this was not the only time he went to his mother-in-law\u2019s. How, there are two objections to a recovery upon this state of facts.\n' First. The injury was not\"a consequence of leaving the wagon unattended.\nIn Lynch v. Nurdin, and cases of the same principle, the wrong was held to be in neglect of precautions, whereby conditions were created under which the acts of strangers inflicted the injury.\nThe fastening of the team, which would have prevented the injury in those cases, would have had no influence in this; the climbing by the child upon the step was wholly independent of that incident.\nSecond. If it were, the act of so leaving it was performed while the wagon was diverted from the business of the appellant, and used to promote the pleasure of the driver. If we assume that, notwithstanding his departure from his route, injuries inflicted by him while driving, resulting from his manner of driving, would have charged the appellant as being within the scope of the employment of the driver or his discretion as to route, no such assumption can be made as to the act of abandoning temporarily the service of the appellant and leaving the property of the appellant without care.\nIt would be a vain effort to attempt to reconcile the multitude of cases. The text books cite them. Shear. & Red., Reg\u00ed. p. 146. The rule is familiar. The difficulty is in the application. C., B. & Q. R. R. v. Epperson, 28 Ill. App. 72.\nIf this judgment can be sustained, it must be upon the ground that the law raises a duty, the omission to perform which is negligence.\nThat duty would be that the drivers of vehicles in the public streets, who have stopped in their way, must, before starting, take such measures as are reasonably necessary to ascertain whether children have so attached themselves to the vehicles as to be hurt if the vehicles move.\nThere is no such law.\nIt would be more impracticable, applied to ordinary vehicles, than to railway tracks or ears in public streets, and it don\u2019t exist as to them. Chi. & Alton R. R. v. McLaughlin, 47 Ill. 265.\nWe can not pass upon the instructions asked by the appellant and refused by the court. Those given for the appellee are lost, and we must presume that all law in the refused instructions applicable to the ease was in the lost ones. Matson v. Tally, 37 Ill. App. 484.\nThe judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Justice Gary" } ], "attorneys": [ "James Maher and Duhcah & Gilbert, attorneys for appellant.", "Black & Fitzgerald and A. B. Chilcoat, attorneys for appellee." ], "corrections": "", "head_matter": "Chicago Consolidated Bottling Co. v. McGinnis.\n1. Negligence\u2014Question of Duty.\u2014The law does not require that the drivers of vehicles in the public streets, who may have stopped in their way, must, before starting, take such measures as are reasonably necessary to ascertain whether children have so attached themselves to the vehicles as to be hurt if the vehicles move.\n2. Appellate Court Practice\u2014Lost Instructions.\u2014The Appellate Court can not pass upon instructions unless all the instructions given upon both sides are shown in the record. Where those of one party are lost, the court will presume that all the law in the refused instructions applicable to the case was in the lost ones.\nMemorandum.\u2014Action for injuries. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1893.\nReversed and remanded.\nOpinion filed February 1, 1894.\n' The statement of facts is contained in the opinion of the court. -\nJames Maher and Duhcah & Gilbert, attorneys for appellant.\nBlack & Fitzgerald and A. B. Chilcoat, attorneys for appellee." }, "file_name": "0325-01", "first_page_order": 321, "last_page_order": 323 }