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Mullen v. Chicago Transit Authority

SEPTEMBER 27, 1961.

EUGENE MULLEN AND KENNETH BENBOW, PLAINTIFFS-APPELLEES,

v.

CHICAGO TRANSIT AUTHORITY, ET AL., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JOHN L. LUPE, Judge, presiding. Judgments affirmed. MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 11, 1961.

In two personal injury cases consolidated for trial the court entered judgments on verdicts against the Chicago Transit Authority, hereinafter called defendant, in favor of plaintiff Mullen for $25,000 and in favor of plaintiff Benbow for $55,000. From those judgments defendant appeals. There were other defendants in whose favor the court directed verdicts, but no question is here raised concerning those rulings.

The leading point made by defendant is that not only were the verdicts against the weight of the evidence, but there was an absence of the proof required to impose liability. For a consideration of this point, a scrutiny of the facts is necessary.

The accident occurred July 13, 1948, when plaintiffs, then six and eight years old, respectively, came in contact with a third rail on defendant's westbound right of way, 200 feet west of Kostner Avenue in Chicago. There, defendant's tracks leave an elevated structure and run at grade. The grade operation commences about one block east of Kostner Avenue and continues for a distance of about thirteen blocks. Energy is derived from electrically charged third rails, one for trains in each direction. These third rails are twelve inches above ground, about seven inches higher than the rails upon which the cars operate. They carry 600 volts of electricity.

At the northwest corner of the intersection of defendant's tracks and Kostner Avenue a tower was maintained and a gateman controlled gates protecting the crossing. A wooden fence running west of Kostner Avenue separated the right of way from a baseball park to the south. About fifteen months prior to the accident defendant constructed a fence on the north side of the right of way, running from the west side of Kostner Avenue to a point a block west. It was composed of woven wire stapled to posts five feet high. Sign posts on the right of way at Kostner Avenue bore the legend: "Danger, Electric Current, Keep Out." Defendant's maintenance foreman personally inspected the right of way fences twice a year, and maintenance employees did so every day. The fence was 47 inches high, with interwoven wire strands, making openings about 4-1/2 inches square. It was known in the trade as a "hog-tight" or "cattle-tight" fence. Its purpose, as stated by defendant's maintenance foreman, was to keep people out. The vice-president of Chain Link Fence Corporation testified that the fence was not adequate for its intended purpose; that a chain link fence, also known as a "non-climbable fence" was the type customarily used; and that such a fence should be seven or eight feet high, with closely woven chain link type of wire, which gives it a non-climbable feature. It can be installed with concrete posts so that the bottom is in direct or close contact with the ground. The cost of a chain link fence with steel posts is $2.50 per foot. The type of fence used costs 75 to 90 cents per foot.

There was further testimony to the effect that about 200 feet west of Kostner Avenue a couple of wires at the bottom of the fence were torn; that children would crawl under it to cross the tracks and get to a cherry tree on defendant's property near the southwest corner of the right of way and Kostner Avenue, or to the ball park, or just to play in and around the general area.

On the day in question, both plaintiffs went to a playground to swim, but when they discovered the pool was closed, decided to pick cherries from defendant's tree instead. They took another boy named Gunder with them, but at a point where there were several holes in the fence, he left them and went home. Gunder testified that he and the other boys had gone to defendant's premises a few days before, and after one of them talked to the watchman, they proceeded to pick cherries. Eugene Mullen testified that after Gunder left, he crawled under the largest hole in the fence, stepped over one of the tracks and on the third rail. At that point he remembers nothing except going through the air and then regaining consciousness in an ambulance on the way to the hospital. He testified that he did not know the third rail carried electricity. Kenneth Benbow, who suffered permanent mental as well as physical injuries, had no recollection of how he had come in contact with the third rail. There is testimony that on regaining consciousness, he told the lineman they were going to cross the tracks to go over and pick cherries.

There were three employees of defendant at the crossing at the time — a gateman, a flagman and a lineman. They saw plaintiffs lying on the track, ran to them, found them unconscious and in contact with the third rail and pried them loose. Other witnesses testified that as children they had played around the area, picked cherries, watched baseball games, put pennies on the track to smash them and make medallions, and "horsed around." One of defendant's employees testified that he had picked cherries from the tree. Other men helped themselves to produce in a vegetable garden kept by the maintenance man near the cherry tree.

Defendant's employees, however, denied they saw any children on the tracks or in the area of the tree. One was the track foreman. On cross-examination, he was shown a three page statement which he acknowledged was signed by him. This impeached his testimony that he never saw any children playing on the right of way. The statement recited that the foreman and other employees of defendant had had to chase children away many times, that often train crews would call in and report there was a child playing on the tracks and some one would be sent out to chase the child away.

The first point made by defendant is stated thus: "Not only was the verdict against the weight of the evidence but there was an absence of proof whereby liability could be imposed upon defendant." In that statement the qualifying word "manifest" is omitted. In recent years there has been conflict and confusion with respect to the yardstick to be applied, and we will review briefly the powers of a reviewing court to pass upon errors of fact.

[1-3] The right to a jury trial as protected by the constitution is the right as it existed at common law prior to the adoption of the constitution. In the early history of the common law, the verdict could not be set aside as being against the weight or preponderance of the evidence. The only proceeding was by attaint directed against the jurors for bringing in a false verdict. The penalties were so severe that the proceeding fell into disrepute and in due course the trial courts exercised the right to set aside a verdict as against the weight or preponderance of the evidence. There was, however, no provision for review of error of fact in Illinois until 1837, although a practice had developed at common law which authorized a review on the ground that the findings of fact were not supported by the evidence.

In 1837 the act, now known as Section 92(3b) of the Civil Practice Act, granting power to a reviewing court to review errors of fact, was adopted. It reads as follows:

"Error of fact, in that the judgment, decree or order appealed from is not sustained by the evidence or is against the weight of the evidence, may be brought up for review in any civil case: Provided, that, except as to equitable issues, the Supreme Court shall re-examine cases brought ...


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