APPEAL from the Circuit Court of Cook County; the Hon. HENRY
W. DIERINGER, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 30, 1971.
Defendant, Elgin, Joliet and Eastern Railway Company ("Railway") appeals from a judgment in favor of American National Bank and Trust Company of Chicago, as guardian for Frank St. John, a minor, plaintiff, for personal injuries. After trial without a jury, the court found the issues in favor of plaintiff and entered judgment for $275,000.00. No issue is raised regarding damages.
On October 16, 1958, when plaintiff was approximately one month over the age of seven, he was severely injured by a moving freight train operated by Railway on its tracks on the south side of Chicago. For better comprehension, we commence with a description of the area and of the occurrence.
Calumet Park is a public park slightly under 200 acres. It is irregularly shaped with its east boundary formed by Lake Michigan. The park is located between 95th and 101st Streets. The right-of-way owned by Railway runs in a curving direction generally northwesterly along the western boundary of the park. The tracks curve to the northwest in a large arc until 100th Street; run due north for about two blocks to 98th Street; then curve again rather sharply to the northwest to 97th Street and then run diagonally northwest to 95th Street. Photographs and other evidence show that a large field house is located inside the park with an entrance close to 98th Street. There is an access drive in the park curving from time to time and running generally northwest and southeast. The northern portion of this drive terminates by merging into 95th Street where there is a railroad crossing. There is no crossing of the right-of-way at 96th or at 97th Streets. There are crossings at 98th Street, 99th Street and 100th Street. All crossings are at grade.
There is considerable evidence as to the recreational and educational facilities of Calumet Park. During material times, the park had some Little League and baseball diamonds, a football field, a running track and a beach for swimming. Various activities for children were carried out within the field house.
The area west of Railway's right-of-way is a heavily populated residential tract with many children. There is a public school on 99th Street some 200 feet west of the right-of-way and there is a Catholic grammar school at 95th Street to the west of the right-of-way. The park has generally been well attended and used by both children and adults. For example, a total of 19,000 persons used the park in January of 1946 and 69,000 used it in July of 1946. Population increase has undoubtedly expanded these figures in a proportionate manner.
The record is replete with evidence of the presence of children not only within the park and traveling to and from the area, but crossing, and being present upon, the Railway right-of-way. Virtually every witness called by plaintiff, including employees of Railway, such as the switch-engine foreman from the train in question and even the General Superintendent of Railway, called by defendant itself, testified to the presence of children going in and out of Calumet Park, crossing the Railway right-of-way and even running up and down the tracks.
There is no fence along the western border of the right-of-way between 95th Street and 101st Street. During the year 1941, steps were taken toward fencing the eastern edge of the right-of-way. On May 13, 1941, Railway entered into a written agreement with the Chicago Park District. This agreement provided that Railway would convey certain irregularly shaped lots and parcels along the right-of-way to the Chicago Park District. In return, the District was to secure and consent to vacation of portions of certain streets in the area so that it could convey these parcels to Railway. The agreement further detailed the boundary line between the park and the railroad from the north line of 98th Street to the north line of 95th Street. Railway further agreed that, "as soon as weather conditions would permit, it will furnish, erect and maintain a seven foot chain link type wire fence along the aforesaid boundary line."
Pursuant to this agreement, and on June 9, 1943, Railway executed and delivered to the Chicago Park District a quit claim deed conveying the parcels of real estate described in this agreement. The deed was duly acknowledged and recorded. This deed contains a covenant by Railway that it would, "within a reasonable time from and after the date hereof, make and set up and forever thereafter maintain, at the cost and expense of the party of the first part, in a proper and substantial manner, a seven foot chain link type wire fence on and along said boundary." In due course, a fence as described was installed by Railway at its own expense. However, the fence did not go to the north line of 98th Street but stopped at a distance of from 100 to 200 feet north of that line. The exhibits and testimony show without contradiction that for many years it was the custom of persons in the area to walk around the southern end of this fence so that a well defined and easily observed path came into existence around the southern end of the fence north of 98th Street leading from park property onto the right-of-way.
The parties stipulated that when this fence was erected in 1943, it extended for 1,860 linear feet. The cost of installation was $2.39 per foot or a total of $4,422.00. Computation shows that the cost of extending the fence to the north point of 98th Street, in accordance with the agreement and the covenant in the quit claim deed, would have been from $239.00 to $578.00 depending upon whether the unfenced distance was 100 or 200 feet.
One further fact regarding operation of the Railway must be noted. Railway carries no passengers but the right-of-way in question is used exclusively by freight trains; most or many of which operate to and from facilities of the United States Steel Company and Material Service Company. The plant of the former is located north of the Calumet River and the latter plant is on the south bank. The river is several blocks north of Calumet Park. The trains using this right-of-way could vary from 5 to 60 or even 100 cars. A train of 100 cars would be approximately one mile long. If the bridge across the Calumet River was open so that trains could not proceed north, a situation would develop in which a standing train would effectively block access to the park from 98th, 99th and 100th Streets. Sometimes access would also be blocked at 95th Street.
There is considerable evidence in the record to show that when this occurred impatient children and adults would cross the right-of-way by clambering over or under the couplings of the standing cars. Furthermore, there is evidence that people, including children, would walk around the end of the fence and then walk north along the tracks in the process of reaching their homes west of the Railway. There is evidence that children would flip rides on the train and then jump off at the street crossing closest to their homes. In this activity, children would sometimes play along the right-of-way. The record also shows that Railway had ample notice and was well aware of the prevalence of these activities.
Prior to 1946, the three crossings over the right-of-way at the western edge of Calumet Park at 98th, 99th and 100th Streets were each protected by watchmen at all hours of the day and night. Railway then erected a two-story tower at the 100th Street crossing and installed mechanical gates at the other three crossings in question. This was done pursuant to approval obtained from the Illinois Commerce Commission during 1946. Operation of the three ...