APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, Presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT:
Alonzo Cora, plaintiff [a minor], was alleged to have been injured by a falling pipe when he was on a construction site collecting pop bottles which he intended to return for cash. Plaintiff brought an action for damages against Gust K. Newberg Construction Co. [Newberg], and Industrial Patrol Service [Industrial], defendants. Newberg brought a counterclaim against Industrial, seeking indemnity from Industrial. In its counterclaim Newberg alleged that if it was guilty of any negligence it was passive, and that if negligence was the cause of the injury in question, it was the active negligence of Industrial.
Plaintiff and his witnesses [minor companions of plaintiff at the construction site] testified that a guard had given them permission to come upon the property. Witnesses for Industrial, who were other minor companions present at the time of the incident, testified that they, along with plaintiff, entered the premises through an opening in the fence which enclosed the site. However, there was disagreement among these witnesses as to the location and nature of the occurrence.
At the conclusion of the trial in the Circuit Court of Cook County, the jury returned a verdict finding defendant Newberg liable for damages in the sum of $5,250, and finding no liability as to defendant Industrial. Furthermore, the court entered an order granting Industrial's motion for directed verdict to Newberg's counterclaim.
It was brought out at the trial that plaintiff's injuries were sustained at the construction site of the Robert Taylor Homes on Sunday, September 17, 1961, between 2:00 and 3:00 P.M., where plaintiff and his companions were collecting bottles. Plaintiff testified that although there was a fence surrounding the area, he and his friends were able to enter the property by gaining permission from a Negro guard who was allegedly standing at the gate. Gloria Cora, plaintiff's mother, testified that she had given her son permission to go to the construction site.
Ray Cora, plaintiff's brother, was called as a witness on behalf of plaintiff. He stated that he was with plaintiff on the day in question; that there was a Negro guard standing inside the gate; that he heard the plaintiff ask the guard if they could enter, and the guard said they could, but that they should not go inside the buildings.
Oscar Peterson, another witness called by plaintiff, testified that on the day in question there was a guard standing at the gate.
Rodney Daniels testified on behalf of Industrial that on the date in question he accompanied plaintiff to the project, but that they entered through a section of fence which had been rolled back to permit access to trucks. He stated that there was no guard at the entrance when they went in.
Industrial also called Verne Hayes, Johnny King, and Arlis Robinson to testify. Hayes was an employee of Industrial, where his duties consisted of instructing and supervising the guards, and occasionally visiting the construction site. He testified that on September 17, 1961, the guard on duty between 8:00 A.M. and 4:00 P.M. was Arlis Robinson, a white male, approximately six feet all, and weighing about 180 pounds. Robinson testified that he was the only guard assigned to the Taylor Homes at the time of the incident, and that he had not given any children permission to enter the site.
Johnny King testified that he had gone with plaintiff to the project; that they entered through a hole in the fence; and that he did not see or hear the plaintiff ask a guard for permission to enter, nor did he see any guards in the area.
Although there appears to be no doubt that a pipe actually fell on plaintiff's leg, and that he was on the construction site at the time, there is nothing in the record to show what caused the pipe to fall or from where it fell.
The contentions raised by Newberg are:
1). "It was not foreseeable that plaintiff would come upon the premises, since the record indicates that his motive in so doing was pecuniary;
2). The fact that plaintiff's mother allowed him to come to the project constituted an intervening cause which would preclude any negligence being the ...