Neering v. Illinois Cent. R. Co.

• Decision Date: 15 September 1943
• Docket Number: No. 27004.,27004.
• Citation: 383 Ill. 366,50 N.E.2d 497
• Parties: NEERING v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

383 Ill. 366

50 N.E.2d 497

NEERING

v.ILLINOIS CENT. R. CO.

No. 27004.

Supreme Court of Illinois.

May 20, 1943.

Rehearing Denied Sept. 15, 1943.

Action for damages for injuries by Agnes Neering against the Illinois Central Railroad Company. A judgment for plaintiff was reversed by the appellate court, 315 Ill.App. 599, 43 N.E.2d 604, and the plaintiff appeals.

Reversed and remanded with directions.Appeal from Appellate Court, First District, Third Division, on Appeal from Circuit Court, Cook County; William F. Borders, Judge.

Ringer, Reinwald & Sostrin, of Chicago (M. Lester Reinwald and Morris Sostrin, both of Chicago, of counsel), for appellant.

John W. Freels and Herbert J. Deany, both of Chicago (Vernon W. Foster and Charles A. Helsell, both of Chicago, of counsel), for appellee.

THOMPSON, Justice.

Agnes Neering filed a complaint in the circuit court of Cook county against the defendant, the Illinois Central Railroad Company, asking for damages because of injuries suffered on September 6, 1938, as a result of being assaulted while she was awaiting the arrival of a suburban train at the Riverdale station of defendant's railroad. A trial before the court and a jury resulted in a verdict in her favor of $5,000. The court overruled defendant's motion for a judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict. On appeal to the Appellate Court for the First District the judgment of the circuit court was reversed and the cause remanded with directions to enter judgment notwithstanding the verdict for the defendant and against the plaintiff. We have allowed a petition for appeal to this court.

The evidence in this record establishes the following facts: Agnes Neering, 23 years of age, lived at Riverdale, Illinois, and for several years prior to September 6, 1938, had been employed as a waitress at Harvey, about three miles south of Riverdale. She used the defendant's suburban service to go to her work at Harvey and for several years she had regularly taken a southbound train from the One Hundred Thirty-seventh street Riverdale station at 4:59 A.M. For some time prior to August 15, 1938, she had been accompanied by her sister. About that time, however, her sister gave up her job in anticipation of her approaching marriage and thereafter plaintiff took the train alone. She was known by the regular employees on this train and occasionally they held the train for her when she was late. Plaintiff's home was three blocks west of defendant's railroad and a half block south of One Hundred Thirty-eighth street. At that hour of the morning the sisters seldom saw any automobile traffic or people on One Hundred Thirty-eighth street. Plaintiff and her sister both testified that in 1937 and 1938 they saw hoboes and tramps once or twice, and sometimes three or four times a week, on the Riverdale station platform; that occasionally the hoboes would be sleeping and often the girls would be afraid to go into the warming house which was provided by defendant for the use of patrons of the road. Plaintiff also testified that she often saw such men walking on the right of way and both plaintiff and her sister testified to complaints made to the ticket agent.

Plaintiff further testified that on September 6, 1938, she went alone to the Riverdale station following her regular route down One Hundred Thirty-eighth street and entered the platform from that end. She testified that she then walked all the way to the warming house on the north end of the platform; that she saw no one on or about the platform and seated herself in the waiting room; that while she was seated there a colored man entered, came up to her and pressed his knees against hers so she could not move, grabbed her by the throat and tried to choke her; that she started to scream and he knocked her to the floor, sitting on her stomach and hitting her with a blackjack; that she told him someone was coming and in the confusion got up, passed him, and backed out of the door; that she turned and ran screaming down the platform and he caught her toward the south end and knocked her off the platform, at which time her back struck a rail; that her assailant then jumped down, pulled her under the platform, hit and choked her, went through her purse, took two rings off her hand, a pin off her dress and put them in his pocket; that he then raped her and fled; that he kept her under the platform from three to five minutes and left from the east side going north along the tracks; that she climbed up on the platform by some two-by-four props; that after she got on the platform she boarded the southbound train to Harvey and told the conductor what had happened; that she got off the train at Harvey and went to the restaurant where she worked; that she went to the kitchen, washed up and put on her uniform not realizing how badly she was hurt; that in about ten minutes she tried to walk but could hardly move and was taken to the Illinois Central Hospital. A physical examination was made which showed she was suffering from a slight swelling and discoloration of the right side of the neck, a contusion of the left elbow and superficial excoriations of the left shoulder. After leaving the hospital she was confined to her bed for about six weeks and was off from work for about fourteen months.

The evidence reveals that the station itself was located in a rather isolated section of Riverdale, being not only isolated from all street traffic and passersby but was located in the heart of a railroad and switching center which was infested with tramps, hoboes and other undesirable characters either coming in or leaving Chicago and its vicinity. One block to the north at One Hundred Thirty-sixth street, the Pennsylvania and Baltimore and Ohio freight lines intersected and cut under the defendant's right of way. At One Hundred Fortieth street, two blocks to the south, the Michigan Central, the New York Central and the Indiana Harbor Belt Railway freight lines intersected and cut under the defendant's right of way. At this particular place of intersection a long spur track ran from the New York Central, Michigan Central and the Indiana Harbor's tracks up to and connected with defendant's tracks. This spur formed a ‘Y’ in which was a hollow known as ‘Hobo Jungle.’ The triangle forming the ‘Y’ spur, and known as ‘Hobo Jungle,’ formed windbreaks and hoboes and tramps occupied the place, constantly loitering there and waiting to catch trains. Three police officers of Riverdale and one of the adjoining village of Dolton, testified to the network of railroads in and about Riverdale and to the presence of hoboes and tramps in that territory in 1937 and 1938. All of the freight lines, including the main freight and passenger lines of the Illinois Central from the southland, brought in many hoboes, bums and vagrants, white and colored, to the city of Chicago.

Plaintiff testified that she would see these tramps and hoboes in the waiting room or on the platform; that they were both black and white and when she saw these tramps she would stay outside and wait for the train in both cold and warm weather; that she complained to the ticket agent and told him she could not go into the waiting room in the morning, even when it was chilly, on account of the tramps sleeping there; that it was dangerous and she was afraid. The sister of plaintiff, who took the same train to Harvey as plaintiff until she gave up her job in August, 1938, likewise testified to the fact that the One Hundred Thirty-seventh street station was habitually infested three or four times a week with tramps and hoboes, white and black, shabbily dressed, and that she also made complaints repeatedly to the agent in charge of the station when she returned from work in the afternoon.

The evidence reveals that although plaintiff and her sister repeatedly notified defendant's station agent of this dangerous condition and that they were afraid, during the entire eight months' period preceding the assault, the defendant failed to have a single inspection made or a station attendant present at or about the time plaintiff boarded her train daily.

Lester Brookfelt, assistant chief of police of Riverdale, testified to the dangerous conditions existing at the station. He testified that while cruising by in the squad car while on night duty, he had been on the One Hundred Thirty-seventh street station platform about one hundred times during 1937 and 1938; possibly fifty times, generally at night, between January 1 and September 1, 1938, and he stated that on twenty-five or thirty of these occasions he and his police companion had removed hoboes and tramps from the platforms at the One Hundred Thirty-seventh street station, both black and white, and took them to the local jail. He also testified as to ‘Hobo Jungle’ at One Hundred Fortieth street and the Illinois Central right of way; that they broke up the camp and sent them on their way or put them in the station, but it would start right up again.

Officer Grover Cogswell was also subpoenaed by plaintiff and he testified that during 1937 and 1938 he likewise found hoboes, both white and colored, on the One Hundred Thirty-seventh street station, in the summer and fall of 1938, when he helped out the Riverdale police and that they were ragged and dirty. Many other witnesses testified as to the hoboes and tramps who loitered around the platform at the One Hundred Thirty-seventh street station in 1937 and 1938.

The defendant offered testimony to the effect that plaintiff and her sister had used the station daily at 5:00 o'clock A.M. for several years; that the platform of defendant's station was well lighted at all times; that besides the lights in the warming house, there were 24 lights on the platform; that four of these lights were over the ledge on each side of the warming house; that others were in each of the windbreaks and at other points on the platform...