Appeal from the Circuit Court of Cook County; the Hon. EDWARD
G. SCHULTZ, Judge, presiding. Judgment affirmed.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
Leonard F. Sydenstricker, a minor, brought suit by his mother and next friend to recover for injuries incurred when he fell from the ladder of a tank car standing in defendant's railroad yard while playing a game of tag with his friends. Summary judgment was entered in favor of defendant and plaintiff has appealed.
Plaintiff charged in his amended complaint substantially as follows:
Defendant permitted a railroad tank car to remain and stand on defendant's premises unguarded and with no limitation to accessibility from the immediately adjacent residential area;
The premises were unfenced in open view of and no more than 100 feet from the residence of plaintiff and the tank car was so located as to be attractive to children of tender years;
For at least a week prior to the date of the occurrence, children of tender years were in the habit of resorting to the premises and playing upon the tank car and climbing an iron ladder that was attached to and part of the tank car;
Children had been attracted and invited thereto by childish curiosity and instinct, and defendant knew of the aforesaid facts, or should have known of them by the exercise of ordinary care and nevertheless defendant negligently suffered the same to be and remain;
At the time of the occurrence plaintiff was a minor at the age of nine years old and at the time and prior thereto he was in the exercise of due care and caution for his own safety commensurate with his age, capacity and discretion;
On June 15, 1959, plaintiff in the company of other children, attracted and invited by reason of the premises and negligence of the defendant, engaged in playing on the tank car and while playing plaintiff gained access to the top of the ladder and fell to the ground.
Defendant responded by moving for summary judgment and stated substantially as follows:
Plaintiff alleges in his amended complaint that he fell from a standing tank car that was stopped on a siding in the yard of defendant. Plaintiff in his deposition admitted that there was no defect in the tank car;
Plaintiff further admitted in his deposition that he slipped from the ladder of the tank car when he attempted to tag another boy that was playing on the tank car;
Plaintiff admitted he was a trespasser and that his mother had on many occasions forbidden him to go into the yard where the accident occurred. The complaint did not allege that plaintiff was in any respect mentally or physically incapable of appreciating or avoiding the danger that existed when he trespassed upon the property and equipment of defendant;
That Ill Rev Stats ch 114, § 72 (1961), was in full force and effect at the time of the occurrence. The statute in substance provides: No one shall go upon any locomotive or car, whether moving or stationary, or any railroad track unless in compliance with the law or permission of the railroad. Plaintiff was in violation of the statute;
Defendant denied that the tank car standing on a siding was an attractive nuisance and averred that there was no genuine issue as to any material fact and defendant was entitled to a judgment as a matter of law.
Plaintiff responded and answered to the motion for summary judgment substantially as follows:
Denied that he admitted there was no defect in the tank car, or that he slipped from the tank while playing tag with another boy, or that he was a trespasser at the time of the occurrence, or that he was forbidden on many occasions to go into the aforesaid railroad yard.
Plaintiff further answered the motion for summary judgment by alleging he was in the exercise of due care and caution for his own safety commensurate with his age, capacity and discretion. Plaintiff denied he was in violation of the aforesaid statute and alleged that the statute has no application for a nine-year-old child and further stated that a violation of such a statute is only one of the facts to be considered in determining whether or not the plaintiff is guilty of contributory negligence; a presumption exists that a person nine years of age is incapable of contributory negligence.
Plaintiff denied that the tank car standing on the siding was not an attractive nuisance.
Plaintiff denied that there were no issues of fact and stated that the issues of fact are substantially as follows:
Defendant was negligent in maintaining a railroad yard containing tank cars on tracks directly adjacent to residential areas where children were known to play, in not maintaining fences or warning signs around the yard, in keeping railroad cars in a place easily accessible to children, whether defendant knew of the attractive nature of such cars to children. Defendant should have foreseen the possibility of children being in an area that was unguarded and unfenced containing railroad cars and ...