Appeal from the Circuit Court of Cook County; the Hon. JOHN J.
LUPE, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 5, 1964.
This is an action to recover damages for personal injuries suffered by a thirteen-year-old boy when he was run over by a Chicago, Milwaukee, St. Paul and Pacific Railroad Company train and suffered a traumatic amputation of both his legs. Suit was brought against three railroads: The Chicago, Milwaukee, St. Paul & Pacific Railroad Company, hereinafter referred to as the Milwaukee Railroad, the Pennsylvania Railroad Company and the Philadelphia, Baltimore & Washington Railroad Company, hereinafter jointly referred to as the Pennsylvania Railroads. Henry Lee Edwards, the minor on whose behalf this suit was instituted, shall be referred to as the plaintiff.
The amended complaint contained two counts. Count I charged the Pennsylvania Railroads with failure to comply with the fencing requirements of a City of Chicago special ordinance passed on January 18, 1897, and the Milwaukee Railroad with proximately contributing to plaintiff's injuries through the negligent operation of its train. Count II charged the Pennsylvania Railroads with common law negligence in failing to take reasonable precautions where serious harm to children was foreseeable, and the Milwaukee Railroad again with proximately contributing to plaintiff's injuries through the negligent operation of its train.
The jury returned a general verdict for the plaintiff against all three defendants for $275,000 and the court entered judgment on the verdict. Post-trial motions on behalf of all the defendants were denied. The Milwaukee Railroad has paid the plaintiff the sum of $75,000 for a covenant not to enforce the judgment against it. The Pennsylvania Railroads bring this appeal.
The accident occurred on June 12, 1959, on an elevated railroad embankment at Rockwell and Van Buren Streets in the City of Chicago. There were five railroad tracks on the embankment where the accident occurred, which ran in a north-south direction. The two easterly tracks were owned and controlled by the appellants and they operated their trains on those tracks. On a user basis, charging so much per car, appellants also leased these tracks to a number of other railroads, including the Milwaukee Railroad. The accident occurred on Pennsylvania track two, the second track from the east. The third and fourth tracks from the east were owned by the Chicago and Northwestern Railroad, and it and other railroads used those tracks. The fifth or most westerly track was little used and is not involved here. Each track passes between large girders as it crosses over each underpass; these girders are six or seven feet high and about a foot and a half wide. The distance between the running board of a tank car and the top of one of the girders is only four to six inches.
Van Buren and Rockwell Streets, where the tracks in question are located, are in a heavily populated area of the City of Chicago; this has been the condition for many years. Within a few years prior to the accident in 1959, a housing project containing eight to ten story buildings has been constructed immediately east of the railroad tracks between Van Buren Street on the south and Jackson Boulevard on the north; there were a number of large apartment buildings in that area between the railroad tracks on the west and Western Avenue on the east. For many years a much used public playground was located immediately west of the railroad elevation, on the south side of Congress Street. Congress Street is a short block south of Van Buren Street. This large playground, known as Altgeld Park, contained several ball fields, swings and other playground equipment, and was extremely popular in that neighborhood. A lighting system had been provided and the playground was used in the evenings as well as in the day time.
Trains often stopped or moved very slowly through the area in question because of heavy train traffic, switching or stopboard signals. Trains sometimes moved at speeds as slow as a walk. The speed was limited to 15 or 20 miles an hour.
For many years youngsters ranging in age from about six to sixteen years of age frequently went up a pathway on the east side of the sloping embankment at the north side of Van Buren Street. From there the children went southwards upon the elevation and crossed over Congress (now the Eisenhower) Expressway to the playground, or went north by the same route from the playground to Van Buren Street or Jackson Boulevard. This occurred daily. The youngsters played on the tracks and often climbed on the standing trains, or got on slowly moving trains, rode a short distance, jumped off, and had a good time.
This use of the elevation between Jackson Boulevard and Congress Street as a means of passage to and from the playground became more extensive after Congress Expressway was built and fenced on both sides because the only way youngsters could go to the playground from the north side of Van Buren Street near Rockwell Street was either by using the direct route along the elevated embankment as a passageway, or by going an extra half mile via the bridges or crossings at Western or California Avenues.
The daily use of the elevated embankment and the tracks by the children, and their climbing on standing cars and riding on the side of the slow moving cars, had been going on for at least 25 years prior to the occurrence. This use of the elevation by the children was more extensive after school hours in warmer weather and throughout the day during vacations.
Salvatore Sparachio testified that he owned and operated a screw machine plant on the south side of Harrison Street, a short distance west of the tracks. He was born in that neighborhood and grew up there. After he moved to a home elsewhere, he continued to operate his business at Harrison and Rockwell Streets. He described the physical conditions in the area. He was 35 years old, and from the time he had been about twelve years old, children had gone on the railroad elevation and tracks between Harrison and Van Buren Streets. He had been up on the tracks himself when he was a youngster, lots of times, had walked on and crossed over the tracks many times, and during the years had seen other boys do the same thing, down until June, 1959. The children were up on the elevation and tracks daily during the summer time. The children played on the tracks, got on trains as they were passing through and jumped off, having a good time. Mr. Sparachio stated that at no time prior to June 12, 1959, was there a fence erected on the east side of the railroad tracks along the north side of Van Buren Street. He had called up the Northwestern Railroad police to tell them about children on the tracks, and children jumping on and off trains.
Hugo R. Koehler, of Skokie, Illinois, retired, testified that he was a conductor for the Baltimore and Ohio Railroad for about 35 years. On trips for the Baltimore and Ohio over this stretch of tracks at Van Buren and Rockwell, he usually rode in the caboose on the northbound trip from 14th and Robey [Damen] to the St. Paul at Grand Avenue and Western between 1:00 and 1:30 in the afternoon. They would arrive there about 2:00, and would leave there about 2:30 or 3:00 in the afternoon, southbound to 14th and Robey [Damen]. These trips were on the No. 1 or most easterly track going north, and the No. 2, second from the east (Pennsylvania track), going south. He made these trips daily between the years 1956 and 1960. On the trip northbound he very seldom saw "kids" up there on the right of way, but coming back in the afternoon around 3:30 or 4:00 p.m., they would see quite a number of children up there trying to get on trains. When the "kids" were getting on or off the trains, the speed would be pretty slow, around four or five miles an hour. These children would be on the right-of-way, and looking at you, and throwing stones, and sometimes there would be little tots asking for chalk. Neither he nor his men ever gave them any chalk but they sometimes did use chalk as part of their job in the railroad yards. The children would get on the side of a car or the caboose, would get on and off, and get on and get off again. They (the railroad men) would be very careful when they saw the children, would tell them to keep off the cars, and would be very careful when they told them to get off because they (the children) get scared and might jump off before getting to the bridge (the girders) and that is where they could get caught. Ordinarily, the youngsters would get off when they were told to, and naturally some youngsters wouldn't, would start to try to kid, but usually, if they (the railroad men) were close to them, the children would get off the cars.
The children rode on all kinds of foreign trains, the New York Central, the Soo Line, various railroads. This was true both on the Pennsylvania and the Northwestern trains. Koehler saw children getting on and off trains in that area for several years. If he saw children there, he would tell them to get off the right-of-way and not to flip the trains, and would try to explain how dangerous it was to get on the train because of the girders. If the children were on another train or in the middle of Koehler's train, that would scare the railroad men because they couldn't holler at the children or warn them. He reported to his own company, to the Baltimore and Ohio, that there were children on the tracks, and had no doubt that he mentioned it to the yardmaster of the Chicago, Milwaukee and St. Paul Railroad at Western Avenue, told them that there were a lot of kids there. He testified at an inquest in August, 1957, at the County Morgue that he had frequently seen children playing up on the tracks in that area.
Henry Lee Edwards, the plaintiff, was born January 2, 1946, and in June, 1959, when injured, was approximately thirteen years and five months old. He was in the lower half of seventh grade, called 7-B, in Manley Elementary School. His health, eyesight and hearing were good, and he was not crippled or deformed in any way before the accident; he was of average intelligence. Before he was injured, he was a member of a regular boy scout troop, played baseball in a league and was a patrol boy.
The plaintiff had been up on the elevation at Rockwell previously, and he stated the conditions shown in the various photographs were that way as long as he had known them. He usually walked up the path on the east side of the embankment, just north of Van Buren to get to the playground. If this passage on the elevation wasn't used to get there, it required a trip of a half mile, using the crossing at Western or California Avenues. The boys going over to the playground or coming back home from it took the short cut on the railroad embankment. To Henry Edwards' knowledge, children used that elevated embankment every day before he was hurt. When up on the elevation, the children would wave at the railroad men and ask for chalk. Sometimes the railroad men would throw chalk out the window, and sometimes they said they didn't have any. At times Edwards saw children on the railroad cars while the cars were moving or standing. Children used to hop on the trains, ride about a block, and jump off. At times the trains would stop and railroad men would get on or off. The kids would climb the ladders and jump off.
During the four years that Henry Edwards played on the elevation and used that path to go to the playground or to go back home, a man spoke to him on one occasion about not going up there. He thought that was about a year and a half before he was injured. The man, who had seen Edwards coming through the fence at the playground, told Henry and the boy with him that they shouldn't be up there. He said nothing further, and nothing about danger. Henry stayed off the elevation for two or three days, but the other boys were still going up there, and some of them were friends of ...