Subsequently, upon an application for a rehearing, the following additional opinion was filéd:
Per Curiam :A petition for rehearing has been presented in this case, and the argument in support of it has received careful consideration. We remain of the opinion heretofore announced. In what we have said we had reference only to the state of facts before the court. A sidewalk is for the passage of persons, only, and we have not had in contemplation any use of it otherwise. Whether it be passed over for business or for pleasure, or merely to gratify idle curiosity, we think the use is lawful. A child may lawfully be upon the sidewalk for pleasure, only,—that is to say, for play,—and the city owes the same duty to have the sidewalk in a reasonably safe state of repair, in respect of it, that it does in respect of those who are on the sidewalk passing to or returning from their places of business or abode. It may be true that the child will be less careful in its mode of using the sidewalk while playing, than the business man will be while traveling to or from his place of business or abode; but this belongs to the domain of fact, and not to that of law. It may be so in most cases,—it is not inevitably so in all cases. It is for the jury, not the court, to say what, in a given case, was the conduct of the parties.
Our attention is called to an expression used in City of Chicago v. Starr, Admr. 42 Ill. 177, wherein it is said: “For it is to be borne in mind that it is not the duty of the city of Chicago to make its streets a safe play-ground for children. That is not the purpose for which streets are designed. ” This expression does not occur in the statement of a legal principle, nor in the argument of a legal proposition, but it occurs in an argument upon a question of fact, purely,—namely, whether, in that case, the intestate was guilty of that degree of contributivo negligence which precluded a recovery. At that time this court reviewed on questions of fact as well as of law, and often these questions were so intermingled in the discussion, that it requires some effort and care to distinguish between them. It was, in the case referred to, assumed as a matter of fact that children, in playing, will be more careless than persons who are simply passing along, and the only legal proposition is one that is implied in the argument, and that is, that the measure of duty of the city in regard to its streets is limited by the necessities of the ordinary modes of traveling or passing along the streets. If they were not kept up to this requirement, and children in playing did not subject them to greater burdens, or essentially different uses, certainly it was not contemplated that the fact of the children being at play should bar a recovery for injuries resulting from the condition of the streets. That this was the view is quite evident from Kerr v. Forgue, 54 Ill. 484, where a recovery was had for an injury occurring to a child through negligence, although the child, at the time of the injury, was engaged in an act of play, in which case Chicago v. Starr is referred to and distinguished. The decisions of the lower court have, under the statutes now in force, relieved us of all questions of controverted fact, and in instructing a jury, trial courts are only authorized to instruct on questions of law. It is not proper to instruct on the facts, nor, in the form of instructions,' to argue the facts.
The rehearing is denied.
Rehearing denied.