Appeal from the Circuit Court of Cook County; the Hon. Irving
R. Norman, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 16, 1985.
Charles Murphy (plaintiff), a nine-year-old third-grade student at Park Manor School in Chicago, lost his left foot and right leg below the knee on March 27, 1979, when he attempted to "flip" (climb aboard) a moving freight train owned and operated by defendant Consolidated Rail Corporation (Conrail), after gaining access to the Conrail railroad tracks by climbing through a hole in a cyclone fence constructed and maintained by defendant city of Chicago (city). Plaintiff filed a cause of action against both defendants alleging negligence and wilful and wanton conduct. Following trial, the jury returned a verdict in favor of the defendants as to wilful and wanton conduct, but found both defendants guilty of negligence, awarding plaintiff damages of $1,130,000. Determining that plaintiff had been 18% negligent, the jury accordingly reduced the damage award to $926,600.
Both defendants initially appealed the verdict against them, and plaintiff cross-appealed on the issue of comparative negligence. Subsequently, Conrail reached a settlement with plaintiff, and, by stipulation of Conrail and plaintiff, Conrail was dismissed out of this appeal.
The city now contends that: (1) as an adjacent landowner only, it owed no duty to a minor trespasser such as plaintiff who was injured by a dangerous condition or activity located on another's property; (2) because the jury found plaintiff to be 18% comparatively negligent, it follows that plaintiff "appreciated the danger" involved in "flipping" trains and he should therefore be precluded from recovery of any damages; (3) the condition of city's cyclone fence was not the proximate cause of plaintiff's injuries; (4) the trial court erred in allowing plaintiff to introduce allegedly speculative testimony with regard to damages; and (5) the trial court improperly instructed the jury.
Plaintiff's two companions, Raphael Spencer and Charles Cosby, testified that, prior to the date of his injury, they had played on the tracks "about three times." On these occasions, they had entered through the same hole in the fence. The fence was taller than they were, and their only access to the track area was through the hole in the fence.
Several other students from the Park Manor School testified that they had used the same hole in the cyclone fence to gain access to the Conrail property many times, although they sometimes reached the tracks by scaling a nearby concrete retaining wall. They had played in the area about three times a week during the year and a half preceding plaintiff's accident. They testified they had seen other children "flip" trains prior to the date of plaintiff's injury, although for fear of "getting in trouble" they had made contradictory statements when questioned previously by Conrail's investigators.
Several railroad employees from the crew of the train which injured plaintiff testified. Mr. Knoll, the conductor, testified that he had worked this particular stretch of tracks for 20 years and "from time to time" had observed children playing on the right-of-way. Mr. Watson, the flagman, testified that he made approximately 200 round trips a year on the route the train was taking on the day of the accident. He had previously observed the cyclone fencing separating the Skyway and the right-of-way and had noted holes in the fence. Mr. Baines, the head brakeman, testified that he had on previous occasions seen children standing about 50 yards from the tracks. In his pretrial deposition, Baines stated that on the day of the accident, he saw the plaintiff coming up the hill towards the tracks through the hole in the fence, although at trial he did not recall making this statement.
Rosemarie Harris, who lived at 7012 St. Lawrence Avenue, testified that her house faced the Chicago Skyway and that from her front porch she was easily able to see the railroad tracks. On a number of occasions she had observed children playing in the area between the fence and the tracks. She stated that children had easy access "because there's an opening in the fence." During March 1979, she had called the Chicago police approximately three times to report this situation.
In his cross-appeal, plaintiff alleges that the trial court erred in permitting the jury to reduce the award of damages based on the alleged comparative negligence of plaintiff since neither defendant raised the issue in their pleadings.
The issues raised in this appeal require presentation here of only a truncated version of the facts adduced during the three-week trial. In 1956, city began its plans for the road now commonly referred to as the Chicago Skyway (Skyway). As partial payment for the land which Conrail deeded to city for construction of the Skyway, city entered into a contract with the Pennsylvania Railroad (later absorbed into Conrail) under which city agreed to erect and to maintain fences. City employed an engineering firm to conduct annual inspections of the fences, and as early as 1977, reports from the engineering firm noted defects in such fences and repeatedly recommended that the cyclone fence through which the plaintiff reached the railroad track should be repaired.
Plaintiff testified: Prior to the date of his injury, he had never been told not to play in the area of the Conrail right-of-way and tracks; he had gone there once before to watch other children playing there; on the day of his injury he and two companions had gone through the hole in the fence with the intention of going to the bakery located on the other side of the tracks; when they saw a train approaching they stopped to watch it; plaintiff saw some "bigger boys jump along the side of the train and then I decided to try it"; plaintiff was able to climb on the side of the moving train and grab a ladder, but after a few seconds he lost his balance and fell; he looked down and "saw the bones in my legs" and was unable to get up.
Emil Hessert testified that he was employed by Conrail's police department since 1955. The Conrail "police blotter" reflected 34 incidents since 1975 of children being present on the railroad property in or near the area where plaintiff was injured. The Conrail "police blotter" also contained additional references to incidents reported by Skyway employees, by Skyway police and by Chicago police personnel, reflecting the presence of children and others on the right-of-way on or near the stretch of tracks where the accident occurred.
Dr. Terry Carle, co-director of the spinal care injury unit at the Rehabilitation Institute of Chicago, testified that based on his examination of plaintiff and a review of plaintiff's medical records and the results of vocational tests given to plaintiff, it was his opinion that plaintiff's opportunities for future employment were "practically nil."
Michelle Marme, a vocational evaluator employed at the Rehabilitation Institute of Chicago, testified that based on her review of plaintiff's school records and the results of vocational tests which she administered, plaintiff would be "minimally employable" at age 18, assuming he continued his education and was graduated from high school.
• 1 City first argues that plaintiff was a trespasser to whom the only duty owed by city as an owner of land was to refrain from wilfully and wantonly injuring him. Although this is generally true, our supreme court in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 625, 126 N.E.2d 836, held:
"* * * [A]n 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.] 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." (Emphasis added.)
City contends that Kahn does not apply to it because plaintiff was not injured on city property, but on the adjacent property owned by Conrail. However, this argument misinterprets both the facts and the language of the Kahn opinion. In Kahn, defendant lumber company was found liable for injuries suffered by a child who fell from a pile of lumber which the ...