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02/16/89 John Engel, A Minor By His v. Chicago & North Western

February 16, 1989

HULTMAN, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY, DEFENDANT (THE CHICAGO PARK DISTRICT, DEFENDANT-APPELLANT AND CROSS-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

JOHN ENGEL, a Minor by his Mother and Next Friend, Donna

542 N.E.2d 729, 186 Ill. App. 3d 522, 134 Ill. Dec. 383 1989.IL.189

Appeal from the Circuit Court of Cook County; the Hon. Jacques F. Heilingoetter, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

The minor plaintiff, John Engel, was severely injured when he jumped from a moving train. Following a jury trial, he was awarded $5 million in compensatory damages and $1.5 million in punitive damages. The trial court subsequently vacated the punitive damages award, on post-trial motion, but upheld the jury's verdict as to liability and compensatory damages. Defendant Chicago Park District (District) appeals, contending that the risk of danger in climbing on and off a moving train is obvious and that defendant therefore had no legal duty to plaintiff. The Park District further argues that it did not receive a fair trial because the jury was angry and prejudiced against it, as indicated by the large award and the finding that Engel had zero contributory negligence for his injuries. Plaintiff cross-appeals from the trial court's entry of judgment notwithstanding the verdict on the punitive damages award.

We affirm.

BACKGROUND

John Engel was 12 years old on September 27, 1981. On that date he went to Hermosa Park in Chicago to play with his friends. The park is operated by the Chicago Park District. There are tennis courts, a playground, a playing field, and other recreational facilities. The entire park is fenced. Along the west side of the park are railroad tracks.

For at least two years prior to Engel's injury the fence along the west side had a large opening that extended from the bottom to the top of the fence. Children and adults used this large hole in the fence as a short cut. Through this opening, children had direct access to the railroad tracks from the park. There was an embankment leading to the tracks, and railroad ties set in the embankment created a stairway up to the tracks.

The Park District failed to repair this large opening in the fence, despite its admitted knowledge of its existence and dangerous condition. Internal memoranda produced at trial established that the Park District considered the unrepaired fence as a safety hazard and that its personnel knew that children used the opening to gain access to the tracks. Work orders to repair the fence were produced, but for unexplained reasons, the opening was not repaired. At trial, one of the Park District's witnesses claimed that repairs had been made, but no substantiation of that claim was produced, and, in fact, the opposite Conclusion was proved by other testimony and evidence.

Testimony at trial also established that the practice of going up to the tracks through the opening in the fence was so prevalent at Hermosa Park that Park District employees frequently engaged in this conduct in plain view of the children in the park. In addition, park employees were aware that children took rides on passing trains. The practice of grabbing a short ride on slow-moving freight trains is called "flipping" the trains.

The engineer for the Park District testified that the open fence separating the park from the tracks created a "very dangerous" condition, one that would undoubtedly allow a child to get hurt if the condition existed for a long enough period of time. The District's safety director also agreed that the condition presented a very dangerous situation.

One of the Park District's employees testified that he had heard of children flipping the trains at Hermosa Park and may have actually seen this happen, but did not recall warning the children not to do this. Another witness, a child who frequently went to the park, testified that for years prior to the accident he had gone through the opening in the fence and boarded moving trains, as had others. A railroad employee testified that he had seen children trying to jump on and off almost every train that passed Hermosa Park.

Railroad employees also jumped on and off moving trains, as part of their job, and the children in the park observed this practice. The railroad would at times run brake tests at the park by stopping the trains and then restarting them while some employees were off the train. Once the railroad crew members who were off the train were satisfied that the trains were running properly, they would mount the moving train by jumping on either the side ladder or stairs of the moving railroad trains. Engel testified that he had observed the railroad crew do this without incident seven or eight times prior to his accident.

The Park District's repair department had received work orders on eight occasions to fix the fence but these orders had never been approved and the work was never done. The orders started in March of 1980, and the last one was dated in August ...


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