Appeal from the Circuit Court of Cook County; the Hon. P.A.
SORRENTINO, Judge, presiding. Judgment affirmed.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1966.
This appeal comes from a judgment entered on a jury verdict finding the appellant railroads guilty of negligence and assessing the appellee's damages at $116,480. The appellants deny negligence on their part and claim also that the appellee was guilty of contributory negligence as a matter of law. To these claims are added several errors alleged to have taken place at the trial.
The appellee here was the plaintiff in a personal injury action below. The appellants are the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company, the owners of the right-of-way on which the appellee was injured; the Pennsylvania Railroad Company, the lessee of that right-of-way; and the Baltimore and Ohio Chicago Terminal Railroad Company, the user of this right-of-way by agreement with the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company.
Most facts concerning this accident are not in dispute. The appellee, Robert Dickeson, was 14 years and four days old at the time of the occurrence. He was born and raised in Drakesboro, Kentucky and lived in close proximity to a railroad track which ran through the town. Before the accident, appellee's health was excellent except for a condition of the eyes known as internal strabismus that is to say in layman's language he was cross-eyed. As a result he tended to see everything out of his right eye. When he looked straight ahead he saw objects to his left with hazy vision.
While in Kentucky, Robert attended the Drakesboro Consolidated School which combined both grade school and high school. He had failed one year of school in Kentucky and when he began school in Chicago he was placed in the sixth grade. His younger brother, David, though two and one-half years junior to the appellee, was put in the fifth grade.
In November or December of 1952, appellee's family moved to Chicago and resided at 338 South Artesian Avenue. Appellee attended the King Elementary School which was located near his home. His school record shows he attended that school for two and three-tenths weeks before his accident. He never returned to school after he incurred the injuries of which he complains here.
The father of the appellee testified that he had warned Robert once when he was six or seven years old not to play on the railroad tracks which ran behind their home in Drakesboro. This was confirmed by the appellee. There is no other evidence of warnings being given Robert concerning the danger of playing on or near railroad trains. The testimony is uncontroverted that the appellee had never ridden a railroad train in his life nor that he ever had attempted to hitch or "flip" a ride on a train before the date of the accident.
The accident occurred when the appellee and his brother were returning home from visiting their sister late in the afternoon of January 22, 1963. They had been playing tag, but when they passed the railroad embankment they decided it would be fun to go up there. Both testified that neither had been up there before; both testified that they had seen other children playing on the embankment before the accident. They climbed the embankment using a path that had been worn there, apparently from the constant use of children going up to the tracks to play. The path ran from the top of the embankment to Rockwell Street to the east and took the plaintiff and his brother to a point about 150 feet north of an overpass which carried the tracks over Jackson Boulevard.
The testimony is that the boys were standing on this embankment when a slowly moving Baltimore and Ohio train approached from the north on the second track from the east. Thus, the boys were on the eastern most track while the train was on the track next to them. The train was headed toward the overpass crossing Jackson Boulevard. There was testimony that the appellee and his brother waved to the engineer and that he waved back. There was no testimony that anybody tried to chase these boys off the embankment. As the train was passing by, Robert grabbed a ladder rung which was affixed to the side of a car and began to climb up the rungs to the top. He testified that as he was doing so he looked upward, obviously looking to see where the next rung on the ladder was. It should be noted that as he was climbing the ladder his left side was toward the south the direction in which the train was moving. As noted before, Robert had bad vision to the left due to a condition of the eyes. As the train passed over Jackson Boulevard, appellee was knocked off the side of the car by a bridge girder.
A switchman on the train heard the appellee cry out as he was hit, and pulled the emergency cord to stop the train. Robert was found wedged between the train and the girder of the overpass. The police were summoned and appellee was removed to Cook County Hospital. It is not necessary to discuss the injuries incurred by the appellee here; no point is being made here as to the extent of these injuries, nor is there any claim that the damages as assessed by the jury are excessive.
The situs of the accident was a railroad embankment, or elevated right-of-way, located in a densely populated area. The neighborhood was a blighted one with no easily accessible playgrounds for the young people. The only playground in the immediate area was part of a housing project and was restricted to the use of the children of the tenants.
On this right-of-way were located five tracks, which had been elevated in 1897. As originally built, there was a retaining wall on the Rockwell Street side of the embankment (the side from which the appellee climbed to the tracks), but in later years the wall was allowed to fall into disrepair, and gradually an incline developed allowing easy access to the right-of-way.
No claim is made here that the fact that there was not a wall or fence barring access to the tracks is violative of any statute. It is, however, maintained by the appellee that under the circumstances, it was negligent for the appellant railroads not to fence off their right-of-way or find some other method to keep the children from harm.
There was evidence adduced at the trial that it was customary for neighborhood children to play on the tracks and that often they would flip rides on the slow moving freight trains as they went by, ride them a short while and jump off a few blocks from the point of beginning. When a freight was moving the other way, the same procedure would be repeated, returning the children back to where they started. There was evidence that this practice had been going on for a great number of years. There was also evidence that the presence of the children was known to the railroads involved in this case. Testimony was given to the effect that children used to throw rocks at the trains as they went by, and railroad employees acknowledged that they had seen children on the tracks and that it was known that they would try to hitch rides on the trains. A policeman testified he saw children on the embankment about once a week and that he saw children at the station house about six times a week when they had been brought in by others for playing on the tracks. He testified that the children ranged in age from six to sixteen years. He also testified that he had conversations with the B & O about the problem of children playing on the tracks. In addition, several residents of the neighborhood took the stand to testify that the children of the area habitually played on that embankment and that they had seen children flip the trains.
Records of the Pennsylvania Railroad Company were subpoenaed and showed that four other children within three years preceding this accident had been injured by moving trains while on the embankment, in the immediate vicinity of the spot where this accident occurred.
The sum of the arguments concerning liability in this case is the claim of the appellee that the railroads were put on notice that children were in the custom of playing on the tracks and that it was negligent of the railroads in question not to construct some sort of barrier to keep them off the right-of-way, or have a more vigilant lookout maintained by railroad personnel for these children. The railroads maintain that they were under no duty to fence. They insist that whatever might be the argument for fencing this area, it could be made for any section of track in the city, pointing out that fencing in all the railroad track in the city would impose an undue burden on the railroads. The appellant railroads also claim that the appellee was guilty of contributory negligence as a matter of law.
Any determination of negligence on the part of the appellant railroads must take into account the doctrine of Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955). That case has been cited and discussed so much that its facts hardly bear repetition here. The holding of that case is summed up in the following paragraph taken from page 625 of the official reporter, pages 841, 842 of the Northeastern Reporter:
"It is generally true, as defendant contends, that an owner or one in possession and control of premises is under no duty to keep them in any particular state or condition to promote the safety of trespassers or others who come upon them without any invitation, either express or implied. (citations omitted) It is also established that infants, as a general rule, have no greater rights to go upon the land of others than adults, and that their minority of itself imposes no duty upon the occupier of land to expect them or prepare for their safety. (citations omitted) It is recognized, however, that an exception exists where the owner or person in possession knows, or should know that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (citation omitted) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child."
The court went on to say that the question of whether a condition or agency was sufficiently attractive to entice children, whether the condition would involve danger to the children, and whether the condition was such as to give notice to the owner or occupier of the premises that ...