Barnes v. Washington

• Decision Date: 24 February 1972
• Docket Number: Gen. No. 53245
• Citation: 4 Ill.App.3d 513,281 N.E.2d 380
• Court: United States Appellate Court of Illinois
• Parties: Rebecca BARNES, Conservator of the Estate of Jessie Barnes, Incompetent, Plaintiff-Appellant, v. Edward WASHINGTON, d/b/a Bea & Ed's Tavern, et al., Defendants, and Illinois Central Railroad Company, a corporation, Defendant-Appellee.

Page 380

281 N.E.2d 380

4 Ill.App.3d 513

Rebecca BARNES, Conservator of the Estate of Jessie Barnes Incompetent, Plaintiff-Appellant, v. Edward WASHINGTON, d/b/a Bea & Ed's Tavern, et al., Defendants and Illinois Central Railroad Company, a corporation, Defendant-Appellee.

Gen. No. 53245.

Appellate Court of Illinois, First District, Third Division.

Feb. 24, 1972.

Rehearing Denied April 6, 1972.

Heller & Morris, Jerome H. Torshen, Ltd., Chicago, for plaintiff-appellant.

Lawrence Lawless, Thomas J. Healey, Patrick F. Healy, Jr., Chicago, for defendant-appellee.

McNAMARA, Justice.

Jessie Barnes, an incompetent, by his conservator, appeals from a summary judgment entered in the Circuit Court in favor of defendant, Illinois Central Railroad Company. The conservator filed a dram shop action against certain defendants for presonal injuries sustained by the incompetent. The complaint alleged that Barnes (hereinafter called plaintiff) had been mentally incompetent since birth, and that, while chronologically 43 years of age, he had the mentality of a four year old. In 1962 the conservator filed an amended complaint adding an additional count and the Wabash Railroad Company as an additional party. By virtue of its affidavit that certain railroad tracks were owned by the Illinois Central, Wabash subsequently was dismissed from the suit. In 1967 leave was granted the conservator to file an amendment to the amended complaint adding Illinois Central as a party.

The amended complaint alleged that plaintiff was abandoned by other defendants in the vicinty of 65th and Dorchester in the City of Chicago; that the Illinois Central Railroad tracks were adjacent thereto; that the Illinois Central negligently allowed its fance along the right-of-way at that location to fall into disrepair; and that there was a break in the fence allowing children and others to easily gain access to the tracks. The complaint further charged that the Illinois Central knew that children and other trespassers frequently climbed the embankment and went on the tracks. The complaint went on to allege that on the evening in question plaintiff climbed the embankment and gained access to a standing freight car where he suffered exposure to the cold. Three days later plaintiff, unable to account for any of his activities, was found in a railroad shanty in Decatur, Illinois. As a result, he sustained frostbite requiring amputation of both legs below the knees and parts of both hands.

Illinois Central did not file an answer, but instead filed a motion for summary judgment asserting that it had no duty to fence the tracks, that it owed no duty to plaintiff and that there was no showing that plaintiff entered upon its tracks or boarded one of its trains. In an accompanying affidavit made by one of its attorneys, Illinois Central stated that plaintiff could not have boarded one of its freight cars since there was no reson for one to have stopped or slowed down at the station.

Counter-affidavits were filed on behalf of plaintiff, stating that he had been let out of an automobile adjacent to an embankment on defendant's right-of-way, and that the fence in question had been pulled aside at that location to enable the Illinois Central to haul material on its tracks. Affidavits of Illinois Central employees were also filed, stating that they had seen children and adults coming through the break in the fence and onto the tracks at that location. Additionally, plaintiff supplied a report made by Paul Stokesberry, director of a scientific research testing service. Stokesberry had made an analysis of the clothing worn by plaintiff at the time he was found in Decatur. After reciting the chemical properties found on the clothing, Stokesberry gave the opinion that the clothing had been in contact with a railroad car. After examining the affidavits and counter-affidavits, answers to interrogatories, briefs, and having heard oral argument, the trial court allowed Illinois Central's motion for summary judgment.

In Dickeson v. Baltimore and Ohio Chicago Terminal R.R. Co., 42 Ill.2d 103, 245 N.E.2d 762, the court imposed upon a railroad a duty to fence its right-of-way to protect children from the dangers of hazardous conditions on the railroad right-of-way because of the immature appreciation of children of such dangers and hazards. In the instant case, however, we are required to determine whether the same duty owed to a child under similar circumstances must be granted to an adult incompetent...