Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
This is an appeal from a judgment entered for the two defendant railroad companies notwithstanding the verdict of the jury finding both defendants guilty of negligence and awarding damages for the plaintiff in the amount of $200,000.00.
The accident, out of which this action for personal injuries arose, occurred October 11, 1945, when the plaintiff, James M. Reilly, Jr., a boy then five and one-half years old, with two older boys, climbed up on an unfenced embankment on the north side of an elevation of the right of way of the defendant Baltimore & Ohio Chicago Terminal Railroad Company. The boys, on arriving at the top of the embankment, walked across the four tracks of this defendant to the adjoining right of way and tracks of the defendant Chicago and North Western Railway Co., walked across three or four tracks of this second defendant, hopped on a moving train belonging to and being operated by the second defendant, and, then, as he jumped off the train, the plaintiff fell under the train wheels and received injuries which resulted in the loss of both of his legs, one above, and one below, the knee.
The sole negligence charged against the defendants was that they "carelessly and negligently failed to continuously enclose with walls and fences their said rights of way as provided by the Ordinances of the City of Chicago."
Two ordinances are involved. One, enacted in 1907, required each of these defendants to elevate its roadbed and tracks within certain limits of the city, including the locale of this accident. Section 2 of this ordinance specified the materials to be used by the railroad companies in building these embankments and provided that, if necessary, retaining walls should be constructed to keep the embankments within the lines of the rights of way of the railroads; and that, if retaining walls were used, they should be surmounted with suitable fences or railings if the walls themselves were insufficient to prevent trespassing. This section of the ordinance also provided that where, as here, "said retaining walls are not used at all the right of way of said companies shall be fenced in or otherwise properly inclosed in compliance with the present ordinances of the City of Chicago relating to the fencing of railroad tracks."
The "present fencing ordinance" here applicable is one contained in the 1905 Revised Municipal Code of the City of Chicago, Section 1994 of which provides:
"Every * * * corporation owning, leasing or operating a steam railroad within the city, shall, within such time as may be prescribed by the city council, construct * * * on each side of its tracks, and in such place with reference thereto as the city council shall direct, * * * substantial walls or fences of such material, design, proportion and height as shall be determined and approved by the mayor and commissioner of public works * * *."
It is to be noted that this ordinance provides that the city council shall prescribe the time within which such fencing shall be built and shall direct the place where it is to be built and that the mayor and the commissioner of public works of the city shall determine the material, design, proportion and height of the fencing.
The defendants contend that until the designated city officials had so prescribed the time and the place of such fencing and had determined the material, design, proportion and height thereof, and had notified the defendants of such action, they (the defendants) were under no duty to fence. We think this contention of the defendants is correct, and the Supreme Court of Illinois so held in Curran v. Chicago & Western Indiana Railroad Co., 289 Ill. 111, 124 N.E. 330. There, as here, two railroad companies owned adjoining rights of way and each railroad operated on the several tracks of its right of way. There, also, a boy, after crossing the tracks of one railroad, was injured by a train owned by and moving on the track of the other railroad company. There the court said, 289 Ill. at page 115, 124 N.E. at page 332:
"This case rests entirely upon the alleged negligence of the appellants in their failure to build and maintain fences in accordance with certain ordinances of the city of Chicago. Unless, therefore, the appellants were required to fence but neglected to do so, and such neglect to fence was the proximate cause of this injury to appellee, there can be no recovery."
In the Curran case evidence was introduced which the plaintiff contended showed the required action by the city council and notification of such action to the defendant railroad companies. The court held, however, that the evidence of such action and notification was insufficient as to the Chicago and Western Indiana, and said, 289 Ill. at page 118, 124 N.E. at page 333:
"It appears from the evidence that there was never a fence on the west side of these tracks at the place where appellee went upon the right of way. The city council had permitted this track ot remain unfenced of 25 years after the adoption of the ordinance of 1890. It would appear that the city council, not ...