Appeal from the Circuit Court of Christian county; the Hon.
F.R. DOVE, Judge, presiding. Judgment affirmed.
PRESIDING JUSTICE HIBBS DELIVERED THE OPINION OF THE COURT.
The appellant, Wabash Railroad Company, has appealed from the Circuit Court of Christian County, Illinois from a judgment entered against it in favor of John Albert Shine, the appellee here.
Appellee filed his complaint on the 3rd day of August 1953 alleging that on June 3, 1932 Walter S. Franklin and Frank C. Nicodemus, Jr. were receivers operating the Wabash Railway Company; that the defendant Wabash Railroad Company succeeded to and assumed the liabilities of said receivers arising out of the operation of the railroad; that the right of way of the railroad extended through the city of Decatur in an easterly and westerly direction and was intersected by a beaten pathway at a point between two streets, namely, University Avenue and Oakland Avenue "where a large number of persons daily crossed said tracks with the knowledge of the defendant, all within the residential limits of said city"; that the plaintiff was born on August 11, 1930 and on August 11, 1953 would be twenty-three years of age; that one A.E. Watson was at that time on June 3, 1932 operating a locomotive for the receivers pulling a train of cars on said railroad in a westerly direction approaching said Oakland Avenue; that the plaintiff, while passing over said pathway along the tracks of said right of way, the defendant, Watson, and the defendant, Wabash Railroad Company (a) negligently, carelessly and improperly drove and managed said train, (b) negligently and carelessly failed to give warning of the approach of the train, (c) negligently and carelessly failed to maintain a proper and vigilant lookout, (d) operated said train at a high and dangerous rate of speed, (e) permitted the road bed and right of way to become covered and obscured from view by tall weeds, grass and bushes, and (f) failed to stop or slow the locomotive after having knowledge that the plaintiff was in danger, as a result of which carelessness and negligence the plaintiff was permanently crippled. Later in the proceedings the complaint was amended alleging that the injury was willfully and wantonly inflicted.
The defendant filed a motion to dismiss the action alleging that the suit arose out of an accident on June 3, 1932; that The Livestock National Bank of Chicago was appointed by the Probate Court of Cook County as guardian of the plaintiff and qualified as such; that afterwards the guardian petitioned the court to accept $1,000 to settle the cause of action and such court authorized such settlement, that the guardian upon receipt of the said sum of $1,000 executed a release by virtue of which the present action was barred by the prior judgment and that the claim of the plaintiff had been released and discharged. Attached to the verified motion was a copy of the release executed by The Livestock National Bank of Chicago as such guardian to the receivers of the Wabash Railway Company.
The plaintiff filed a counter-affidavit alleging that The Livestock National Bank of Chicago was not the regularly appointed and qualified guardian; that the plaintiff was at the time of the injury a resident of Macon County, Illinois and not a resident of Cook County, that the Probate Court of that county had no jurisdiction to appoint a guardian for the plaintiff and that such jurisdictional defects appeared on the petition for appointment. Attached thereto was a transcript of the record of the Superior Court of Cook County in the case entitled The Livestock National Bank of Chicago, Guardian of the Estate of John Albert Shine, a Minor, Plaintiff v. Walter S. Franklin and Frank C. Nicodemus, Jr. Receivers of the Wabash Railway Company, and also a transcript of the proceedings in the Probate Court of Cook County in the matter of the Estate of John Albert Shine.
The transcript from the Probate Court of Cook County with reference to this estate shows (first) that the petition for the appointment of a guardian for John Albert Shine was filed by his mother, Myrtle May Shine, and it recited that the minor was then living with Myrtle May Shine, who resided at 1344 Johns Avenue, Decatur, Illinois, and there were no assets in said estate except a right of action for personal injuries against the Receivers of the Wabash Railway Company, and The Stock Yards Trust and Savings Bank was appointed as such guardian and qualified as such, and (second) thereafter The Livestock National Bank of Chicago, successor to The Stock Yards Trust and Savings Bank as such guardian filed a petition to compromise the cause of action and recited "that your petitioner is now informed and is advised by its said attorney, William Wallace McCallum, that the said minor at the time of the injury and does now reside with his parents in their home at Decatur, Illinois." The order of the Probate Court of Cook County authorizing said settlement finds: "that the injury to said minor was occasioned on the 3rd day of June, A.D. 1932 by reason of the said minor who was then twenty-two months of age, unattended, crawled out of his yard which adjoins the Wabash Railway Company right of way at Decatur, Illinois, climbed onto the right of way and tracks and was struck by one of the trains belonging to said Wabash Railway Company."
The motion to dismiss was denied and thereafter the defendant answered. Upon the trial at the close of plaintiff's case the charges of negligence (b) and (d) aforesaid, namely, negligently, carelessly and improperly drove and managed said train and operated said train at a high and dangerous rate of speed, were withdrawn by the plaintiff. At the close of all the evidence the defendant made a motion for directed verdict and tendered instructions to that effect which were respectively denied and refused. Thereupon the defendant, A.E. Watson, was dismissed by the plaintiff as a party defendant. The jury returned two verdicts: (1) finding the defendant guilty of negligence and assessing plaintiff's damages at $50,000, and (2) finding the defendant not guilty as to willfulness and wantonness. Judgment was entered upon the verdicts and thereupon the defendant filed a motion for judgment notwithstanding the verdict under the negligence count and for a new trial.
We are first confronted with appellee's contention that the compromise authorized by the Probate Court of Cook County which had issued the letters of guardianship and the release given was a bar to the action. Section 2 of the Guardian and Ward Act, being par. 2, Chap. 64, Cahill's Ill. Rev. Stat. 1931 provides: "The County Courts in their respective counties may, when it shall appear necessary or convenient, appoint guardians of minors, inhabitants of or residents in the same county, and to such as reside out of this State and have an estate within the same, in the county where the real estate or some part thereof may lie; or if he has no real estate, then in any county where he may have personal property; . . ." The principal case relied upon by the appellant is Balsewicz v. Chicago, B. & Q.R. Co., 240 Ill. 238, where a minor was killed in a railway accident in Kewanee, Henry County, Illinois. His parents lived in Bureau County, where the minor had his home. A stranger who had no right to administer on the estate obtained letters of administration in Cook County and subsequently settled the cause of action for the death with the railway company. Later the deceased's father took out letters of administration in the county of his residence and sued the railroad for the death. The court say at page 246: "The probate court of Cook county has general jurisdiction of the settlement of the estates of deceased persons, and, when adjudicating upon questions arising in such matters, as liberal intendments are to be made in favor of its findings as of those of courts of general jurisdiction. (Bostwick v. Skinner, 80 Ill. 147; Blair v. Sennott, 134 Ill. 78.) Residence of the deceased, at the time of his death, within the territorial jurisdiction of the court is essential to give the probate court jurisdiction to grant administration of his estate. But the probate court having general jurisdiction of the subject matter of the settlement of estates, if such court has assumed jurisdiction of a particular estate and granted administration thereof, then, in accordance with the rule in regard to the acts of courts of general jurisdiction that all intendments of law are in favor of such acts and that they are presumed to have jurisdiction to give the judgments they render until the contrary appears, such grant of administration is conclusive and not subject to attack in a collateral proceedings." (Italics ours.) It will be noted in the Balsewicz case, supra, it is said in substance that the Probate Court having general jurisdiction of the subject matter of the settlement of estates, if such court has assumed jurisdiction of a particular estate and grants administration, then all intendments are in favor of the jurisdiction of such court until the contrary appears (italics ours), and such grant of administration is not subject to attack in a collateral proceeding.
Here it is admitted that the jurisdictional defect appears on the transcript of the record of the proceedings in the matter of the guardianship of this plaintiff in the Probate Court of Cook County. In Sharp v. Sharp, 333 Ill. 267, a minor after his majority in an original action had a deed declared void which had deprived him of a remainder interest in real estate during his minority, and the court said there at page 273: "In case of collateral attack a presumption in favor of the regularity and validity of the decree is indulged from a statement in the decree that the court had jurisdiction of the subject matter and of the parties. Nothing will be presumed, however, in favor of jurisdiction in the face of facts appearing in the mandatory record showing that it did not exist. (People v. Brewer, 15 R.C.L. 895; Old Wayne Life Ass'n v. McDonough, 204 U.S. 8.) A presumption is not evidence and cannot be treated as evidence. It cannot be weighed in the scale against evidence. (People v. Cochran, 313 Ill. 508.) Presumptions are never indulged in against established facts."
In the case of In re Cash, 383 Ill. 409 it is said at page 429: "Where the record itself shows the evidence upon which the court acted in finding that it had jurisdiction, no presumption of jurisdiction can be indulged, and where the record shows the evidence upon which the court acted is insufficient, the finding in favor of jurisdiction is not conclusive. The presumption of jurisdiction applies only when the record is silent upon the question. (citations.)"
In the face of the transcript of record of the Probate Court of Cook County, we are not permitted to indulge in any presumption that such court ever had any jurisdiction in the matter. Such record shows affirmatively that the court did not have jurisdiction. The trial court did not err in overruling the motion to dismiss.
The appellant contends that the trial court erred in not entering judgment notwithstanding the verdict and overruling the motion for new trial. This requires a summary of the testimony in the case.
The admitted facts in the case show that the main line of the Wabash Railroad runs in an easterly and westerly direction through the city of Decatur, and this accident occurred in a residential and business area of that city where the tracks for a mile each way from the point of the accident are straight. The right of way intersects North Oakland Avenue, a north and south street, at right angles, and it is 540 feet from the west edge of North Oakland Avenue to the next north and south street to the west known as University Avenue, which is not open across the tracks. North of the right of way between the two streets is a long block, 560 feet in length, the south half of which was owned by the Hunter-Pogue Lumber Company, on the south portion of which was situated two fairly large buildings and three other buildings north thereof, one of which was at the west end of the block next to University Avenue. North of the lumber yard was an alley 16 feet in width and immediately north of the alley were 14 lots, 40 feet in width, upon which were located residences. Immediately west of the west line of University Avenue, and north of the right of way, was a one and one-half story house in which the plaintiff and his father and mother together with some of his grandparents lived. South of the right of way and parallel thereto was the right of way of the Illinois Terminal Railroad Company upon which interurban cars were operated. Just south of the latter right of way was an east and west street known as Cerro Gordo. There was a park in Decatur, known as the "Fairview Park" located south of the tracks, together with the Garfield and Roosevelt Schools. At the corner of Cerro Gordo and Oakland south of the tracks was a grocery store. There was also a plant known as the H. Mueller Manufacturing Company south of the tracks and about five blocks east of Oakland Avenue. There was a beaten path across the tracks of the railroad between Oakland and University Avenue and over the Illinois Terminal Railroad Company's track leading to Cerro Gordo Street, which was used by numerous adults and children going to the grocery store, the H. Mueller Manufacturing Company, the schools, the park and other areas in Decatur located south of the tracks. There is some evidence that along the north line of the right of way there was a plank over a ditch, and at the south edge of the Illinois Terminal Railroad Company there were some steps that led down to Cerro Gordo Street.
On June 3, 1932 sometime prior to 8:30 in the morning an extra freight was made up consisting of an engine, tender, three boxcars and caboose, and at about 8:30 that morning it was travelling west on the rails of the Wabash track. The train crew consisted of six members, the engineer, fireman, front brakeman in the engine, the conductor and two other men in the caboose. The engineer, A.E. Watson, the front brakeman, John B. Kuecher, and the list man, G.A. Fowkes, were the only members of the crew surviving at the time of the trial. There is no evidence in the record that vision on that morning was in any way obscured. The train was travelling at a rate estimated by the witnesses from 15 to 25 miles an hour. As the train approached Oakland Avenue, an object was seen to come onto the track. The engineer, Watson, the front brakeman, Kuecher, and apparently the fireman, all thought it was a dog. The engineer, Watson, testified at the trial that when he got "I suppose two blocks, I looked down the track, and I saw something that looked like a dog on the track. When I got close enough, I thought it was a child, a boy. I tried to stop, set the brakes in emergency, and the engine and tender ran over the boy. Before I got to it, I saw it moving, and that's when I set the brakes. That was when I was less than one block, about forty feet, from the object when it moved. . . . It might have been a little farther or a little closer." Further he said: "There was nothing about the traffic on Oakland Avenue to divert my attention. There was nothing to keep me from watching the child." And he said further: "I tooted, set the brakes, emergency first, and opened the sand lever and began tooting the whistle at the child." Again he said: "I applied the air and sand together when I was the distance described." Again he testified: "I didn't see the child ...