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Driscoll v. C. Rasmussen Corp.

APRIL 8, 1965.

NEIL DRISCOLL, A MINOR, BY NEIL J. DRISCOLL, SR., HIS NEXT FRIEND, AND NEIL J. DRISCOLL, SR., PLAINTIFFS-APPELLEES,

v.

C. RASMUSSEN CORPORATION, DEFENDANT-APPELLANT,

v.

H. FRED TURNER, COUNTER-DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding. Affirmed in part, reversed in part and cause remanded.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 6, 1965.

This is an appeal from two judgments of the superior court of Cook County, the first being entered on a jury verdict in favor of the plaintiff and against defendant, C. Rasmussen Corporation, assessing plaintiff's damages at $35,000 and finding defendant, H. Fred Turner, not guilty, and the second being decided by the court without a jury and finding in favor of the counterdefendant, H. Fred Turner, on C. Rasmussen Corporation's counterclaim.

The case arose out of the injury of the minor plaintiff, Neil Driscoll, which injury occurred on November 6, 1955, while said minor plaintiff was playing on a construction trash pile located to the south of a building which was being erected at 9229 South Ashland Avenue in the city of Chicago.

Suit was filed against two contractors, C. Rasmussen Corporation and H. Fred Turner, and also against the owner of the premises, Beverly Hudson, Inc. C. Rasmussen Corporation had a contract with Beverly Hudson, Inc. to construct an automobile agency building at 9229 South Ashland Avenue, and H. Fred Turner had painting contracts with both Beverly Hudson, Inc. and C. Rasmussen Corporation. Testimony was also adduced at the trial to the effect that the carpenters on the job were "employed by" C. Rasmussen Corporation. C. Rasmussen Corporation counter-claimed against defendant H. Fred Turner.

A verdict was directed in favor of defendant, Beverly Hudson, Inc., at the close of the case, and the judgments appealed from were entered on November 8, 1962.

Defendant, C. Rasmussen Corporation, contends (1) that there was no evidence to establish a cause of action against it under the so-called "attractive nuisance" doctrine, and there was no evidence showing actionable negligence on its part; (2) that, as shown by the evidence, the only basis on which it might be connected with the alleged "attractive nuisance" is through its contract with H. Fred Turner, and the court, accordingly, should have entered judgment notwithstanding the verdict in favor of C. Rasmussen Corporation, or it should have entered judgment notwithstanding the verdict against H. Fred Turner and found in favor of C. Rasmussen Corporation on its counterclaim; (3) that the trial court committed reversible error in the conduct of the trial (a) in allowing the plaintiff, over objection, to argue that the paint cans in the trash pile were probably placed there by an employee of C. Rasmussen Corporation; (b) in admitting plaintiff's exhibit number 2, a photograph of the premises taken after the accident, in evidence although it did not portray conditions on the premises as they existed at the time of the accident and it conveyed the erroneous impression of a post-accident precaution by defendant, and (c) in refusing to strike the testimony of plaintiff's doctor concerning the possibility of cancer after the doctor admitted that his statement that plaintiff's injury might develop into cancer was a mere speculation.

In the summer of 1955 construction began on a one-story automobile agency building at 9229 South Ashland Avenue. Sometime after the start of the construction, a trash pile began to accumulate to the south of the construction site.

Plaintiff's father, Neil J. Driscoll, testified that a few days before his son's injury, he was driving down the alley in back of the automobile agency. He noticed that the debris from the trash pile had overflowed into the alley, and he could not drive his car past it. He got out of the car and started throwing the debris back onto the pile. A workman came out of the automobile agency carrying a cardboard box which he placed on the pile. The workman then began to straighten up the pile by pulling it together into a central location. Plaintiff's grandmother, Gladys Driscoll, testified that she saw workmen from the building under construction dumping cartons, wood and anything they swept up in the automobile agency building onto the pile. She also testified that on one occasion sometime during the latter half of October, 1955, she couldn't get her car out of her garage because a workman was sweeping debris from the automobile agency building and had temporarily blocked her exit. She noticed that there were beer cans and small paint cans mixed in with the sweepings. She was able to leave before he had completed, and, when she returned later the same day, she noticed that the debris he had been sweeping had been pushed over to the bottom of the pile. This testimony by these two witnesses was the only direct evidence produced to show the origin of the trash pile.

On the day of the injury, plaintiff and his little brother went out to play about 1:00 p.m. They played around the trash pile. A little later they were joined by a neighbor's child, John Woods. John Woods' father was burning leaves in a wire trash burner which he had placed in proximity to the trash pile. The children started lighting pieces of wood from the fire and sticking them into the paint cans on the trash pile in order to light the residue remaining in the cans. Mr. Woods snuffed out the fires in the cans and told the boys not to light them anymore, but as soon as he left, the boys relit the cans. John Woods opened some full cans and left them lying opened on the trash pile. The plaintiff knocked over one of these cans which contained what was varyingly described as either a clear or a greenish substance. The evidence showed that the can was approximately two inches high. The contents of the can splashed on plaintiff's trouser leg, and he attempted to wipe it off with a rag. The children then continued playing, and subsequently plaintiff's trousers caught on fire. The fire started on the leg which had been splashed by the contents of the open can. Plaintiff ran over to a mud puddle and tried to douse the flames by splashing water on them. When this proved ineffectual, he started running towards his house. At this point Mr. Woods returned and saw what was happening. He ran after the plaintiff, grabbed him and smothered the flames.

Plaintiff alleges that defendant, C. Rasmussen Corporation, being in possession and control of the property adjacent to and to the south of the building being constructed at 9229 South Ashland Avenue, maintained the premises in such a manner that it was attractive to children of tender years and knew or should have known that children frequented the premises; that a dangerous condition consisting of the construction trash pile existed on the premises; that defendant C. Rasmussen Corporation knew or should have known of said condition; and that said dangerous condition was the proximate cause of plaintiff's injury.

Plaintiff argues that since it is undisputed that Beverly Hudson, Inc. owned the property upon which the trash pile was located, defendant C. Rasmussen Corporation became a person in possession and control of the premises by virtue of its construction, as general contractor, of the automobile agency building. Defendant C. Rasmussen Corporation offered no evidence.

Defendant C. Rasmussen Corporation argues that there is no showing that it was the general contractor on the job and that the complaint did not charge and the proof did not establish its possession and control of the premises.

After judgment the pleading upon which the judgment is based is liberally construed in favor of the pleader and anything necessary to be proved which may be fairly inferred from the complaint will be regarded as alleged. Johnson v. Illini Mut. Ins. Co., 18 Ill. ...


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