delivered the opinion of the Court.
Appellant was one of the owners of a tract of land located in the city of Chicago, used as a brick yard, and having within it an excavation called a clay-hole, some two hundred feet long by one hundred to one hundred and fifty feet wide. This hole was partly filled with water, and on December 23, 1893, was covered with ice. The ice was in a rotten and weak condition. The premises were uninclosed. Plaintiff’s intestate, a lad of thirteen years, started out with a younger brother to try the ice, to test its safety for skating. As he approached the place he ran down a steep bank and out upon the ice some twenty-five to fifty feet, where- the ice broke under him and he was drowned. This suit was brought to recover damages by reason of his death, and the negligence alleged as the proximate cause of the death, was the permitting of the premises in question to be uninclosed.
The errors assigned and argued in briefs of counsel relate to instructions. One of the instructions given was as follows:
“The court instructs the jury, that if they believe from the evidence, that the deceased might in the exercise of ordinary care and caution, have seen the danger and avoided it, and that his omission to do so, if you believe from the evidence he did omit to exercise ordinary care and caution for his own safety, contributed materially to his death, then he was guilty of such negligence as will prevent a recovery in this case, unless the jury further find from the evidence that the death was caused by the willful, intentional, or wanton, reckless acts of the defendant. The degree of care and caution required is such a degree of care and caution as a boy of the age and intelligence of deceased would naturally exercise under like circumstances.”
This instruction was presented by appellant, but was modified by the court, and the word “materially” was inserted. The instruction as modified is erroneous.
The well established rule, in cases like the one here, is that in order to permit a recovery by plaintiff, his intestate must have been in the exercise of ordinary and reasonable care for his own safety, i. e., such care as would be ordinary and reasonable for one of his age and condition. Lake S. & M. S. R.R. Co. v. Hessions, 150 Ill. 546; City of Lanark v. Dougherty, 153 Ill. 163.
There can be no contributing negligence, in contemplation of law, where there is an exercise of ordinary and reasonable care. North C. St. R. R. v. Eldridge, 151 Ill. 549.
To tell the jury that although the intestate was not in the exercise of such care, and the lack thereof contributed to his death, yet the plaintiff might recover if the jury found that the want of such care was not material, is to permit the jury, in their discretion to disregard the rule of law. This can not be permitted. Cicero & Prov. St. R’y Co. v. Snider, March term, 1897, this court (not yet reported); Chicago City R’y Co. v. Carnevin, 72 Ill. App. 81.
The question of the liability of appellant is a matter of grave doubt.
Under the facts disclosed, there would be no liability in relation to adults, who were trespassers upon the premises. The exception is in favor of children only, and it is only in relation to children, lacking the discretion of adults, that a liability may be imposed. City of Pekin v. McMahon, 154 Ill. 141.
Whether this lad, thirteen years of age and sufficiently conversant with the dangers of the situation to start out with the avowed intention of testing the ice as to its safety, can, as a matter of fact, be brought within the class of children, who, in lack of discretion, wander into uninclosed premises, or are allured to enter by the surroundings, is a question admitting of much doubt. A verdict by a jury finding that he was of this class will not be sustained unless the proceedings leading to such verdict are absolutely free from any error which might have improperly guided the jury in reaching it. That the law as to contributory negligence was elsewhere properly given, in a number of instructions, can not avail, for we are not prepared to hold that the jury were not led to the result reached by the one instruction in question.
The first instruction for plaintiff, inasmuch as it directs as to negligence of defendant, should have also directed as to negligence of the intestate.
The court did not err in refusing the instruction, which announced an abstract proposition of law.
For the error in the giving of the modified instruction above set forth, the judgment is reversed and the cause remanded.