delivered the opinion of the court.
The amount of the verdict in this case ($14,000) is a very large sum of money—more than the average man can accumulate in a long lifetime of labor. It is true that the plaintiff has lost a part of his right foot, and that at times it inconveniences him and gives him a very slight limp, but at the most he is but partially disabled. At the time of the trial he was employed as a messenger boy, and there is no evidence that his work is not satisfactorily performed. If it be admitted that the defendant was guilty of negligence in the premises, there is no evidence showing that such negligence was wilful or wanton. Granting that the plaintiff should have a recovery, compensatory damages are all that he is entitled to.
On the motion for a new trial, at the suggestion of the trial judge, counsel for the plaintiff remitted $7,000 from the verdict, and thereupon -that motion was overruled and judgment was entered for $7,000.
Under the facts and circumstances shown in this record, we regard the verdict of $14,000 as grossly excessive and the judgment of $7,000 as excessive.
In an action for damages, where there was no dispute as to the liability of appellant, and there could be no question but that appellee was seriously injured,.the' judgment rendered in favor of appellee was in the sum of $21,000. The Appellate Court, after finding that the verdict, while not warranted as to its entire amount by the credible evidence in the casé, ivas not so far in excess of such an amount as the credible evidence would support as to indicate passion or prejudice, and that no reversible error intervened in the trial, decided that if appellee would remit $6,000 from the judgment it would be affirmed. This appellee did, and an affirmance was ordered as to the remainder thereof. C. & E. I. Ry. Co. v. Cleminger, 77 Ill. App., 186. This rule, whether followed in the trial court or in the Appellate Court, while strongly criticised in some of the cases, has been adhered to by the Supreme Court, where the amount of the verdict was not so great "as to indicate passion or prejudice, and where the remittitur reduced the judgment to a sum that did not seem to be excessive to that court. N. Chicago St. Ry. Co. v. Wrixon, 150 Ill. 532; Goldie v. Werner, 151 Ill. 551; C., M. & St. P. Ry. Co. v. Walsh, 157 Ill. 672; Elgin City Ry. Co. v. Salisbury, 162 Ill. 187. Under these circumstances, the rule, though illogical, is justified by the maxim that it is necessary there should be an end to litigation, and by the constitutional right every one has to receive promptly that which is justly due him. We, however, believe that no case can be found in which a judgment, based upon a rmnittitur, although approved by the trial judge, has been allowed to stand where the reviewing tribunal is satisfied from the record that the verdict rendered was based upon passion or prejudice, or was founded upon a misconception of the evidence. In such a case the infirmity pervades the entire verdict, and the remission of the one-half or of any other part of the whole amount does no't* free the remaining part from the taint. The courts will not take money or other property from one and give it to another, except upon a fair trial in accordance with the forms of law. This principle is illustrated by the following cases: C. & N. W. Ry. Co. v. Cummings, 20 Ill. App. 333; W. Chicago St. Ry. Co. v. Johnson, 69 Ill. App. 147; C. & E. Ry. Co. v. Binkopski, 72 Ill. App. 31; Sterling H. Co. v. Galt, 81 Ill. App. 602; Lockwood v. Onion, 56 Ill. 512; Loewenthal v. Streng, 90 Ill. 74.
At the time he was injured the plaintiff was not a servant of the defendant. It is neither alleged nor proved that the employee of defendant who called (if he did call) upon plaintiff to assist in turning the table, had any authority to make the plaintiff a servant of the defendant. There was no contract of employment then or at any other time between the plaintiff and the defendant. Hence the plaintiff at ' the time of the accident was not the servant of defendant. But if the request that the plaintiff aid in the work made him a servant of the defendant at the time he was injured, then there can be no recovery, for it is clear that he was injured by the negligence of a fellow-servant at a time when they- were directly co-operating with each other in a particular business in the same line of employment.
If the plaintiff was a volunteer, this suit must fail, for the defendant owed him no duty other than not to injure him wantonly or wilfully. The evidence contained in this record will not justify a finding that such injury was wanton or wilful. Legal liability is based upon the breach of some legal duty. When a volunteer assists the servant of another, he does so at his own risk. Ill. Cent. Ry. Co. v. Godfrey, 71 Ill. 500; Ill. Cent. Ry. Co. v. Eicher, 202 Ill. 556; Flower v. Penn. Ry. Co., 69 Pa. St. 210; Atlanta, etc., Ry. Co. v. West, 121 Ga. 641. The only exception to this general rule is where the alleged volunteer has an interest in the work being done, in which event he is entitled while engaged in the work to be protected from the carelessness of the servants of the master. Cleveland, etc., Ry. Co. v. Marsh, 63 Ohio St. 236; Welch v. Maine Central Ry. Co., 86 Me. 552,
The duty which the law imposes upon the defendant and the omission of which is actionable negligence, is not affected by the age of the plaintiff. His youth does not supply the Jack of negligence upon the part of the defendant. He cannot recover unless there was negligence upon the part of the defendant which caused his injury. Nolan v. N. H. & H. Ry. Co., 53 Conn. 461; Sherman v. H. & St. J. Ry. Co., 72 Mo. 62; C. & W. I. Ry. Co. v. Roath, 35 Ill. App. 349; Gavin v. Chicago, 97 Ill. 66; Hargreaves v. Deacon, 25 Mich. 1.
The only ground upon which this judgment can be supported is upon what is called the law of “ attractive nuisances.” The leading case upon this question is Railroad Co. v. Stout, 17 Wallace, 657, where a child of six years was injured while playing around a turn-table, situate near two traveled roads in a village. The latch by which the table was fastened was broken, and the table was unguarded and unfenced. The court held, while it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself be free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and that is to be determined in each case by the circumstances of that case. And accordingly, whether there was negligence upon the part of the railway company was held to have been properly left to the jury.
In Donk Bros. O. & C. Co. v. Leavitt, 109 Ill. App. 385, where a child less than three years of age was drowned in an open and unguarded cistern, the court, in affirming the j udgment, say: “ The law of this State recognizes the ‘attractive nuisance’ doctrine, so far as children are concerned, whether they are of sufficient age to have some degree of discretion or not. and the consequent duty of defendants to guard such structures or agencies that no harm shall come to those who are physically or mentally incapable of-taking care of themselves.”
In the City of Pekin v. McMahon, 154 Ill. 141. a child of eight years was drowned in a deep pond lying in one-half a block of ground in a populous city. The pond had been fenced, but upon the north and south sides there were openings for a wagon way. Children frequented the pond and amused themselves by riding on logs and timbers which floated about in it. The city had been notified of the dangerous condition of this pond and its attractiveness to children. The Supreme Court, in sustaining a judgment for damages, after stating the general rule as to trespassers, said: “An exception, however, to this general rule exists in favor of children. Although a child of tender years, who meets with an injury upon the premises of a private owner, may be a technical trespasser, yet the owner may be liable if the things causing the injury have been left exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts. Unguarded premises, which are thus supplied with dangerous attractions, are regarded as holding out implied invitations to such children.”
An examination of the “attractive nuisance” cases will show that in nearly every instance the child injured was less than ten years of age and incapable of exercising ordinary care; and that the machinery or other dangerous agent was situated near a public street or alley, in a populous neighborhood, and unfenced.
iu St. Louis, etc., Ry. Co. v. Bell, 81 Ill. 76, at a time when the Supreme Court so far considered the facts as to determine whether or not the verdict was against the weight of the evidence, it is said: “In view of the isolated position in which the turn-table was located, the proofs fail to show that appellant was guilty of such a want of care as could lawfully charge it with damages for this accident.”
The doctrine of “attractive nuisance” is recognized by our courts, and the questions of fact as to the care or want of care of the child for his own safety, and the negligence or the lack of It uporPEhe part of~the~clefendant. are for the determination of the jury under proper instructions by the court.___
It is a weakness of the plaintiff’s case that it is not directly based upon the doctrine of “attractive nuisance.” As appears by the declaration .set forth in the statement of facts, there is no averment in the charging part of the first count that the plaintiff was drawn to the turn-table by childish curiosity, or that the table was attractive to children of tender years, or that the plaintiff was then so young that he was unable- to appreciate the danger of the situation; and in the second count the sole negligence charged is that the defendant, by means of its servants, invited the plaintiff to assist them in turning the table.
While it may be that the first count is a defective statement of a good cause of action, and we think it is, by no laxity of pleading can the second count be brought within the “attractive nuisance” rule. If this is an “attractive nuisance” case, then the evidence tending to prove that other boys had been seen around the turn-table prior to the accident, and that it was situate in a residence district, was properly admitted, otherwise such evidence should have been ruled out.
Thomas McFarlane, who had charge of the men engaged in turning the table, was asked by the defendant: “Did any of these people at the turn-table, or yourself have a right to employ helpers?” An objection was interposed and sustained, and the answer “No, sir,” was struck out. This action of the court is not ground for reversal, for the reason that the burden of proving such authority, if it existed, was on the plaintiff.
We think instructions A and B, given on behalf of the plaintiff, are not misleading nor do they erroneously state the law.
Instruction E, concerning damages, is in the usual form. The clause relating to “loss of health” of the plaintiff is guarded by the words “if any.” Further, the . testimony of Dr. Thilo,' and of James Charters, justified the insertion of this clause.
The trial judge ruled too rigorously against the defendant upon its tendered.instructions. We are of the opinion that under the declaration the defendant was entitled to have the jury instructed upon the law as to volunteers and as to trespassers, and also upon the law as to the want of authority in servants engaged in handling its engines and in the operation of its turn-tables, to bhjd the defendant by asking others to assist them.
’ The judgment of the Circuit Court is reversed and the cause is remanded.
lieversed and remanded„