Brief for the Appellant.

from the effects of the injury, two months afterwards. The sidewalk where this fall occurred was badly out of repair,stringers were gone, and boards were loose and rotten,-and it had been in this condition for some time. The plaintiff is the father of the deceased, and the suit is brought, under the statute, for the benefit of the next of kin, who are the father, mother, four brothers and four sisters. Verdict was returned by the jury, for the plaintiff, assessing the damages at $2500. Motion for new trial was overruled, and judgment rendered upon the verdict. On appeal to the Appellate Court for the First District the judgment was affirmed, and that judgment is brought before this court for review, by the present appeal.

Mr. CLARENCE A. KNIGHT, for the appellant:

The sidewalks are not made as a play-ground for children, but for the passage of pedestrians. All persons are bound to use their eyes, and ordinary care, and failing to do so no recovery can be had for any injury received. Kewanee v. De Pew, 80 Ill. 119.

The liability of the city must be considered with reference to the use of the sidewalk for ordinary travel, which does not mean it shall be reasonably safe for a boy to roll a hoop. Chicago v. Bixby, 84 Ill. 83; Garin v. Chicago, 97 id. 66; Stinson v. Gardner, 42 Me. 248; Blodgett v. Boston, 8 Allen, 237; Donoho v. Vulcan Iron Works, 7 Mo. App. 447.

The correct rule is, that the boy was bound to exercise such care as might be expected from a person of his age and discretion. Bloomington v. Perdue, 99 Ill. 329.

It was the duty of the court to give an instruction to guide the jury in the assessment of damages. 3 Sutherland on Damages, 731; Peters v. Railroad Co. 46 Iowa, 399; Tipton v. Triplett, 1 Metc. 570.

The father of the deceased being entitled exclusively to his earnings during his minority, the proper measure of damages would be the value of the child's services from the time of the

Brief for the Appellee. Opinion of the Court.

injury till he would have arrived at his majority, taken in connection with his prospects in life, less support and maintenance. Kerr v. Forgue, 54 Ill. 484; Barly v. Railroad Co. 4 Biss. 434; Railway Co. v. Freeman, 36 Ark. 41; Pennsylvania Co. v. Lilly, 73 Ind. 252; 2 Thompson on Negligence, 1292.

Mr. A. W. GREEN, and Mr. M. W. ROBINSON, for the appellee: The city council has the power to prevent and regulate the rolling of hoops on the sidewalks. (Rev. Stat. 1874, chap. 24, art. 5, sec. 1, clause 92.) In the absence of the exercise of such power, the boy was not prevented from going along the sidewalk rolling a hoop; and if, while so going, and using such care as, from his age and intelligence, was required of him, he was injured because of the unsafe condition of the sidewalk, the city is liable. McGarry v. Loomis, 63 N. Y. 104; Railway Co. v. Fielding, 48 Pa. St. 320; Kerr v. Forgue, 54 Ill. 482; Railroad Co. v. Gladmore, 15 Wall. 401; Robinson v. Cone, 22 Vt. 213; Chicago v. Major, 18 Ill. 349.

The instruction as to the measure of damages was properly refused. Damages are not to be given merely in reference to the loss of a legal right, but they are to be calculated in reference to a reasonable expectation of pecuniary benefit from the continuance of the life. Franklin v. Railroad Co. 3 Hurl. & Nor. 211; Dalton v. Railroad Co. 93 E. C. L. 296; Railroad Co. v. Shannon, 43 Ill. 347; Railroad Co. v. Becker, S4 id. 4S3.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellant asked the court to instruct the jury as follows:

"The jury are instructed that the sidewalks of the city are not made for the purpose of a play-ground for children, nor as a mere place for the recreation of children, and that the condition of the sidewalk is only to be considered with reference to its use for the ordinary travel along the same.

15-114 ILL.

Opinion of the Court.

"The jury are instructed that if they believe, from the evidence in this case, that the deceased, Michael Keefe, was, at the time in question, playing upon the sidewalk, by rolling a hoop along the same, then you are instructed that if you believe, from the evidence, that he would not have fallen or have been injured if he had gone along the sidewalk in the ordinary mode, then you must find for the city, as the sidewalks are not made for the purpose of a play-ground for children."

But the court refused to give the instructions, and this ruling presents the first and principal question discussed in the arguments before us.

Counsel for appellant cite and rely upon Stinson v. Gardner, 42 Maine, 248, and Blodgett v. Boston, 8 Allen, 237, in support of the instructions. These decisions are based upon the principle announced in Blodgett v. Boston, that the liability of towns and cities for injuries to persons or property occasioned by defects in highways, is intended to be commensurate only with the duty imposed on them,—that is, to keep them in repair, "so that they may be safe and convenient for travelers at all seasons of the year." In the view of the New England courts there is no implied liability for injuries resulting from defective streets or sidewalks,-the liability is wholly statutory. And as observed by Dillon, in his work on Municipal Corporations, section 786, "an important consequence is, that every case of this character must be within the statute." (See, also, notes on page 749, first edition.) On the contrary, we hold, on principles of common law, that an action for damages resulting from negligence will lie against a municipal corporation if the duty to make repairs is fully declared, and adequate means are put within the power of the corporation to perform the duty. Browning v. City of Springfield, 17 Ill. 143; Scammon v. City of Chicago, 25 id. 424; Clayburgh v. City of Chicago, id. 535; City of Bloomington v. Bay, 42 id. 503.

Opinion of the Court.

It is not attempted to be controverted in this case that the city of Chicago owes the duty to keep its streets, sidewalks, etc., in repair, and that this is the fact will be seen by reference to the various provisions of the general law in relation to the incorporation of cities, villages, etc., under which the city of Chicago is incorporated, applicable to this subject. (Rev. Stat. 1874, chap. 24.) Nor is it denied that the city had adequate means within its power for that purpose. There is no limitation in the statute that the streets shall be kept in repair "for travelers." They are to be kept in repair as streets, and, by necessary implication, for all the purposes to which streets may be lawfully devoted. We assume as selfevident that, with us, streets are open to the use of the entire public, as highways, without regard to what may be the lawful motives and objects of those traversing them, that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not impinge upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition with those who are passing along them as travelers, or in the pursuit of their daily avocations. (See Donoho v. Vulcan Iron Works et al. 7 Mo. App. 447, and same case in 75 Mo. 402.) In crowded cities, their use for pleasure, and sometimes even for the promotion of health, may be regarded as a public necessity. On like principle, why may they not be used by children in play and amusement, so long as the rights of others being on or passing along the street shall not be prejudiced thereby? We can perceive no reason. Such use is certainly the universal custom, and the lawfulness of rolling hoops along streets, when not prohibited by ordinance, is impliedly conceded by the 92d subdivision of section 1, article 5, chapter 24, of the Revised Statutes, which empowers the common council to prohibit or regulate it by ordinance. The right to regulate necessarily assumes the lawfulness of that which is to be reg

Opinion of the Court.

ulated,-without regulation until it shall be prescribed, and in conformity with the regulation after it shall be prescribed. Since, then, there is not here shown to have been any ordinance either prohibiting or regulating the rolling of hoops, it is to be assumed that this child was, at the time he was injured, lawfully passing along the sidewalk,-that the fact that he was rolling a hoop, while pertinent on the question of whether he was guilty of contributive negligence, did not, per se, deprive him of any right in respect of passage along the sidewalk which he would otherwise have had, and that the duty of the city towards him was precisely the same that it was towards a child of the same age and mental capacity, exercising the same degree of care, passing along the sidewalk without a hoop. Indeed, the rule seems to be, that although a party may be doing an unlawful act at the time he is injured through the negligence of another, this will not prevent a recovery, unless the act is of such a character as would naturally tend to produce the injury. (Sutton v. Town of Wauwabasa, 29 Wis. 22; Wharton on Negligence, (2d ed.) sec. 995.) Whether this child was guilty of contributive negligence, was a question of fact, to be determined by the jury from all the evidence in the case, and not a question of law, to be determined by the court from the circumstance that he was rolling a hoop. The law neither infers negligence, nor its absence, because he was rolling a hoop, since, as a matter of fact, he may have rolled a hoop along the sidewalk and yet have observed the highest degree of care in passing along,— i. e., it is not impossible that he may have done so, just as, at another time, he may have been passing along the sidewalk in a grossly negligent manner without a hoop, and on a business errand. The question of law is, simply, what is the degree of care he should have observed to entitle his administrator to recover. Whether, his conduct all considered, he observed that degree of care, was the question of fact.