Briney v. Illinois Cent. R. Co.

• Decision Date: 11 November 1948
• Docket Number: No. 30129.,30129.
• Parties: BRINEY v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

401 Ill. 181

81 N.E.2d 866

BRINEY

v.ILLINOIS CENT. R. CO.

No. 30129.

Supreme Court of Illinois.

Sept. 24, 1948.

Rehearing Denied Nov. 11, 1948.

Appeal from Third Division Appellate Court, First District, on Appeal from Circuit Court, Cook County; Leonard C. Reid, Judge.

Action by Daniel C. Briney against Illinois Central Railroad Company for personal injuries. A judgment for plaintiff for $35,000 was affirmed by the Appellate Court, 330 Ill.App. 250, 70 N.E.2d 743, and the defendant appeals.

Judgments reversed.

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

Joseph Barbera, of Chicago, for appellee.

SIMPSON, Justice.

This case is here on appeal from the Appellate Court which affirmed a judgment for $35,000 against appellant, Illinois Central Railroad Company, a corporation, in favor of appellee, Daniel C. Briney, a minor, by next friend. The case was tried twice in the circuit court of Cook County. A prior judgment in favor of appellee was reversed and the cause remanded by the Appellate Court. 324 Ill.App. 375, 58 N.E.2d 286. The injury complained of occurred July 7, 1937, when appellee was eight years and nine months old. As a result of the injury amputation of his left leg a few inches below the hip was required.

Appellant's privately owned elevated right of way extends north and south through a portion of the village of Riverdale, Illinois, a suburb of Chicago, and carries seven sets of track numbered from west to east. The westerly two tracks, 1 and 2, carry suburban trains, tracks 3 and 4 carry passenger trains, and tracks 5 and 6 carry freight trains. Track No. 7 is the most easterly and is known as the interchange track. It carries freight trains made up in the Markham Yard at 157th Street to Indiana Harbor Belt Railroad at about 140th Street and also freight moving in the opposite direction. All streets are dead-end streets on both sides of the right of way between 138th and 144th Streets. Underpasses at 138th Street and 144th Street accommodate both vehicular and pedestrian traffic. There is no crossing at grade over the right of way between these streets.

The accident occurred on the right of way at a point about 50 feet north of a signal tower located about where the center of 142nd Street would pass if extended across the right of way. The right of way at this point is approximately 11 feet above ground level. The elevation two blocks farther north is 23 feet. The interchange track (No. 7) parallels track No. 6 from the Markham Yard three miles south of 142nd Street to a point about where 141st Street would intersect the right of way if extended. At that point track 7 leaves the right of way in an arc to the east coming down to grade where it connects with the track of the Belt railroad which runs east and west parallel with and immediately south of 140th Street underneath appellant's tracks, through a subway.

The signal tower has two upright posts, one on the east located between tracks 6 and 7 and one on the west between tracks 1 and 2. There is a crossover connecting tracks 6 and 7 controlled by two switches, one at track 6 and one at track 7. The switch on track 6 is approximately 624 feet north of the signal tower and the one on track 7 is about 824 feet north of the signal tower. The next switch on track 7 controls train movements to and from either the north or south wye and is 954 feet from the signal tower. The next one controls movements to and from the north wye, off of and onto the Belt railroad, and is approximately 1078 feet from the last one above mentioned, or 2032 feet from the signal tower. The crossover switch between tracks 6 and 7 accommodates only trains moving north on track 6 and those moving south on track 7. The crossover switch on track 7 would not be thrown for a northbound train.

July 7, 1937, after having lunch with Russell Reichert aged 11 1/2 years, appellee, with the latter and Bobby and Billy Sutton aged 12 and 14 years, respectively, walked down under the viaduct at 140th Street onto the Belt railroad and shot off some fireworks that appellee had. According to appellee's witnesses they then climbed the east bank of appellant's right of way upon a path near this point and walked south upon the elevated right of way to a point approximately 50 feet north of the signal tower above mentioned. The distance between tracks 6 and 7 at this point is 16 feet 11 inches and the space between them was level and covered with cinders.

After standing between these tracks for 10 or 15 minutes appellee and his companions saw appellant's train 1 1/2 miles to the south traveling in their direction on track 7. There was nothing between them and the trains to obstruct their view of it and they watched it approaching at about 4 miles per hour. This train consisted of an engine and caboose with 45 cars between them. The train was being pushed by the engine in a northerly direction with the caboose at its northerly end and the engine at the southerly end. As heretofore stated track 7 was the interchange track between appellant's road and the Indiana Harbor Belt line. This train came along daily and was always pushed north up track 7 and onto the Belt line so that when it was upon the latter it would be headed in the desired direction. Appellee was standing half way between tracks 6 and 7, or 8 feet 5 1/2 inches from track 7, as the train approached and as the caboose at its forward end passed him. The other boys were in like positions. It was about 1:50 P.M. and clear. After the caboose and a few cars passed Billy Sutton jumped on the train. After a few more cars had passed Bobby Sutton jumped on. After the caboose and 10 or 12 cars passed, the appellee ran with the train a short distance and attempted to jump on but his hands slipped and he fell in such manner that his left leg was run over requiring amputation as aforesaid.

From the time the train left Markham Yard the conductor and flagman were in the caboose with the doors open. The conductor sat in the doorway on the east side near the center where he could give signals which could readily be seen by the engine crew as the train traveled around the curve to the east. From his position he could see the track ahead except that portion to his immediate left which would be obstructed by the caboose. The flagman sat about a foot inside the door at the forward end which was the northerly end of the caboose. He could see everything on the right of way ahead of the train. The engineer and fireman were both on the engine at the southerly end of the train and the brakeman was riding on the easterly platform of a tank car about 20 car lengths ahead of the engine. The boys did not see the trainmen nor did the trainmen see the boys.

The complaint as amended alleged in substance that on the day of the accident and for a long time prior thereto children of tender years and others were permitted and invited by the defendant to come upon its tracks to throw switches, particularly on the interchange track (No. 7), in exchange for gifts such as fusees and fruit, and that by reason of the invitation it became and was customary for children to be upon the right of way for the purpose of throwing switches and the defendant owed a duty to the children to keep a lookout for them, to given them warning and to use ordinary care not to injure them. There was no charge of wilfulness in the complaint. The answer denied these allegations. Motions for directed verdict at the close of plaintiff's evidence and at the close of all the evidence, as well as a motion for judgment notwithstanding the verdict, motion for new trial and motion in arrest of judgment, were made in the court below and overruled.

Appellee's case was tried upon the theory that defendant impliedly invited plaintiff to come upon its right of way and throw switches for its employees in exchange for gifts. Appellee's evidence shows that for a year or two before the accident, the witnesses Russell Reichert and Melvin Wilkins and other boys, sometimes 6 or 8 in number, would occasionally throw switches on track 7 for the trainmen, sometimes three or four times a week in the summer; that these witnesses had thrown switches a day or two before the accident; that appellee had never been on the track or right of way of appellant prior to the day of the accident and did not regularly play with the boys in whose company he was that day; that in exchange for throwing switches the trainmen would usually give the boys fusees and fruit and never chased them off the tracks; that they would wait for the train to come and some one on the caboose would usually given an arm signal, after which the switch would be thrown, and as the train came along they would jump on the caboose and ride to the next switch and run up ahead and throw that one and so on until they got down to the Indiana Harbor Belt line and that they would stand between tracks 6 and 7 between the signal tower and the first switch north of it on track 6. The evidence further shows that at times other boys would jump on and off of a passing train. Appellant's witnesses denied all evidence tending to establish that appellee was an invitee upon the...