APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
On April 24, 1974, 13-year-old Richard Pellegrini was seriously injured while attempting to hop a freight train operating on the railroad tracks owned by Chicago, Rock Island and Pacific Railroad Company. Railroad moved for summary judgment. The trial court granted Railroad's motion, finding that Pellegrini was contributorily negligent as a matter of law. Pellegrini appeals.
The two issues raised on appeal are whether the trial court erred in: (1) entering summary judgment in favor of defendant based on a determination that 13-year-old plaintiff was contributorily negligent as a matter of law, and (2) entering summary judgment without considering the question of whether defendant's conduct was the sole proximate cause of plaintiff's injuries.
On April 24, 1974, 13-year-old Richard Pellegrini (plaintiff) was playing near a section of railroad tracks owned by the Chicago, Rock Island and Pacific Railroad (defendant). Plaintiff hopped a slow-moving freight train and rode the train over a bridge. After the train had crossed the bridge, plaintiff jumped off, crossed back over the bridge and attempted to hop on the train again. Plaintiff failed to gain the momentum necessary to hop the train and sustained traumatic amputation of his right leg.
First, we must consider whether the trial court erred in entering summary judgment in favor of defendant based on a determination that the 13-year-old plaintiff was contributorily negligent as a matter of law. Plaintiff argues that the issue of whether plaintiff was contributorily negligent was incapable of resolution by summary judgment.
• 1 A child between the ages of 7 and 14 is presumed to be incapable of contributory negligence. (Hardy v. Smith (1978), 61 Ill. App.3d 441, 378 N.E.2d 604.) The presumption, however, may be rebutted by offering proof that the particular child, based on his age, mental capacity, intelligence and experience, was accountable for his actions. (Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1969), 42 Ill.2d 103, 245 N.E.2d 762.) Once such proof is offered, the question of contributory negligence becomes a question of fact which must be left to the jury to determine. Thomas v. Price (1980), 81 Ill. App.3d 542, 401 N.E.2d 651; American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App.2d 406, 202 N.E.2d 79; Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149 N.E. 23.
Defendant contends that the facts in the record regarding plaintiff's age, mental capacity, intelligence and experience support the trial court's finding that plaintiff was contributorily negligent as a matter of law. The record indicates that: plaintiff was 13 years old; he did not get A's or B's in school; he had been warned by his mother to stay off the railroad tracks; he had been warned that he may be injured; he had hopped cars previously; and he had lived near the railroad tracks all his life.
Plaintiff points to additional facts in the record to support his contention that he should not have been found contributorily negligent as a matter of law. The record further indicates that: plaintiff had never been seriously injured; he had never heard of anyone being injured by a train on the tracks where the train struck him; he had only hopped a train on one previous occasion; he had watched his brother and other neighborhood children hop trains on numerous occasions.
• 2 It is our opinion that the evidence in the record relating to plaintiff's age, mental capacity, intelligence and experience, raises a material question as to whether plaintiff was capable of appreciating the risk. We find that reasonable-minded persons might draw different inferences from the facts in this case and therefore the issue of plaintiff's contributory negligence should have been submitted to the jury.
Second, plaintiff argues that since the jury could properly have found that defendant railroad's conduct was the sole proximate cause of plaintiff's injury, the trial court erred in entering summary judgment based solely on a consideration of plaintiff's conduct.
In his complaint at law, plaintiff alleged that his injuries were proximately caused by defendant's failure to erect barriers and its failure to properly maintain and inspect the right-of-way. Defendant, in its motion for summary judgment, denied that it was in any way negligent, and stated that plaintiff's own negligent actions were the proximate cause of his injuries.
In Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149 N.E. 23, the defendant railroad argued that the evidence showed that the probable cause of plaintiff's injury was plaintiff's own act in climbing onto the moving train, and that there was no evidence tending to show that the absence of a fence along the right-of-way proximately caused minor plaintiff's injury. The Illinois Supreme Court held that it cannot be ruled as a matter of law that the absence of a fence did not contribute to the plaintiff's injury and the question, therefore, was properly submitted to the jury.
Maskaliunas is distinguishable from the case at bar in that there was an ordinance requiring fencing of the right-of-way. However, the court's discussion of the propriety of submitting the ...