APPEAL from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This is an action for personal injuries based on negligence. At a jury trial in the circuit court of Cook County the court directed a verdict for the defendants on the question of liability and dismissed plaintiff's complaint at the close of plaintiff's evidence. Plaintiff appeals from the order granting defendants' motion for a directed verdict.
Plaintiff presents three issues for review: 1. Whether the court erred in excluding evidence of conduct by defendant Chicago Transit Authority after the accident had occurred to show that the C.T.A. had control over the premises on which the accident took place, 2. Whether the C.T.A. is liable for personal injuries where the occurrence took place on property owned by defendant Chicago and Northwestern Railway Company (hereafter called Northwestern) but used by passengers of the C.T.A. as a means of ingress and egress to the C.T.A. rapid transit station, and 3. Whether the Northwestern is liable for personal injuries to the plaintiff who was injured while walking along a path which was situated on Northwestern property.
Plaintiff was a middle-aged woman who lived in Skokie, Illinois, but who worked in Chicago. She used the facilities of the defendant C.T.A. as her means of getting to and from work. On November 2, 1966, as was her usual habit, she took the Skokie Swift, which was part of the C.T.A. system, to the end of the line in Skokie at which point she got off the train. She alighted onto a platform on the east side of the train. The train was facing north. The train having stopped, she walked from the platform, down stairs, and crossed two C.T.A. tracks in front of the train. The platform on the west side of the tracks was used by passengers who were going to Chicago. Between the platform and Terminal Street, which was west of the C.T.A. tracks and parallel to them, was a grassy field approximately in the middle of which ran a railroad track owned by the Northwestern which was parallel to the C.T.A. tracks and Terminal Street. The paved area with steps leading to the C.T.A. platform on the west side of the tracks was protected by a wooden fence. The fence did not extend in a northerly direction as far as the pavement extended. Therefore, on the evening in question, plaintiff was able to walk past the end of the fence and onto a dirt path which ran from the C.T.A. pavement across the Northwestern track. At a point just west of the Northwestern track, the dirt path, which was unimproved in any way at the time of the accident, branched into two forks, both of which ended at Terminal Street. The dirt path had a slight grade and was used by persons cutting across the field. At about 5:45 P.M. on the evening in question, plaintiff walked down the incline, across the Northwestern tracks to a point midway between the track and Terminal Street. At this point she testified at trial that she stepped into a rut covered by snow in the path and fell on her right side, and as a result of this accident she sustained serious injuries to her arm. She testified that she was wearing boots and that there was a light snowfall on the path. She was walking by herself, but she testified the station was busy and that many people used the dirt path as a means of egress and ingress to the Skokie Swift terminal. Dorothy Long, Mrs. Seipp's daughter, testified that the path had been in existence for about a year before the occurrence and had developed coincidentally with the coming of the Skokie Swift to the area. Mrs. Seipp testified that she had used the path for about seven months prior to the accident.
On cross-examination of Mrs. Seipp, the defendants established that the C.T.A. had provided a paved, well-lighted walk for its passengers that headed in a northerly direction from the west side of the Skokie Swift tracks to Dempster Street, which ran east and west. The paved path ran parallel to the C.T.A. tracks and led to the south side of Dempster Street. There was some dispute as to whether the south side of Dempster Street was paved or was covered by cinders in the area where the paved walk led. The north side of Dempster Street was paved. Plaintiff's residence was located west of Terminal Street, and therefore west of the Northwestern track and the Skokie Swift Terminal, but it was located south of Dempster Street and north of the Skokie Swift platform. In order to take a paved route to her residence, plaintiff would have to cross Dempster Street to the north paved side of the street, proceed westbound, and then recross Dempster. Plaintiff referred to the dirt path which she actually took as a shortcut to her home. When taking this shortcut, plaintiff would necessarily have to pass the point at which the paved path to Dempster Street began. The dirt path ran perpendicular to the paved path.
The dirt path was not well lit. There was a lamppost on Terminal Street, approximately half way between the dirt path and Dempster Street which indirectly cast some light upon the dirt path, but there were no artificial lights which were intended to illuminate the dirt path. Plaintiff sustained her injuries while walking on property which the Northwestern owned. It was stipulated that seven freight trains per week passed the point of the occurrence and that the Northwestern made daily track inspections in the area. The Northwestern did not have a station in the area, and its trains did not stop there.
One of the plaintiff's theories was that although the accident took place on Northwestern property, the C.T.A. exercised control over the dirt path to such an extent that it had a duty to provide a safe path for its passengers who used the path as a means of egress and ingress to the station, and that the presence of a rut in the path which proximately caused plaintiff's injuries showed that the C.T.A. was negligent in maintaining the path.
In her complaint, plaintiff alleged that the C.T.A. had control over the dirt path at the time of the occurrence and that the C.T.A. recognized this path as a much travelled route of its passengers, and acquiesced in its use as such. On defendants' motion made before the hearing of any testimony and after considerable discussion, the court ordered the plaintiff not to mention or bring into the issues any evidence of repairs that either of the defendants performed subsequent to the accident. Plaintiff then proceeded to make an offer of proof, still outside the presence of the jury, that subsequent to the accident the C.T.A. established steps from its property down the incline of the dirt path and that it laid crushed stones on the dirt path to improve its surface. Counsel for the C.T.A. admitted that the C.T.A. established the steps in 1970 and laid crushed stones. It appears from the record that the C.T.A. laid the crushed stones at approximately the same time that it established the steps. The record does not disclose exactly how much of the path was covered with stones. The court admitted plaintiff's exhibit number 1 which was a letter written on the stationery of the C.T.A. for the purpose of the offer of proof but not as evidence for the jury. The letter, dated March 17, 1971, was written by James R. Quinn, vice chairman of the C.T.A., and was as follows:
"March 17, 1971 Mr. A.G. Borowsky 5025 Crain Street Skokie, Illinois 60076
Pedestrians walking across the Chicago and North Western Railway right-of-way west of our Skokie Swift terminal to reach the terminal are, in effect, illegally crossing the North Western property, and we have no right to recommend improvements.
We have already gone beyond our prudent judgment in the spreading of crushed stone and constructing steps on someone else's property for the convenience of our patrons who make use of this crossing. Suggestions to the railroad would not be well received as it would establish the existence of a crossing of their railroad and, undoubtedly, would necessitate complete crossing protection, as required by the I.C.C.
I believe it is advisable to keep this crossing strictly on an informal basis. To go beyond this would, in my opinion, lead eventually to the fencing of the right-of-way by the North Western to prevent the crossing, which I am sure neither you or others want. I appreciate the interest that ...