Chicago & Erie Railroad Co. v. Fox

• Decision Date: 18 February 1904
• Docket Number: 4,649
• Citation: 70 N.E. 81,38 Ind.App. 268
• Court: Indiana Appellate Court
• Parties: CHICAGO & ERIE RAILROAD COMPANY v. FOX

70 N.E. 81

38 Ind.App. 268

CHICAGO & ERIE RAILROAD COMPANY v. FOX

No. 4,649

Court of Appeals of Indiana

February 18, 1904

Rehearing denied April 20, 1904.

Transfer denied June 7, 1906.

From Porter Circuit Court; Willis C. McMahan, Judge.

Action by Edward L. Fox, by his next friend, against the Chicago & Erie Railroad Company. From a judgment on a verdict for plaintiff for $ 5,000, defendant appeals.

Affirmed.

W. O Johnston and Johnston, Bartholomew & Bartholomew, for appellant.

L. L. Bomberger, D. E. Kelly and William J. Whinery, for appellee.

OPINION

BLACK, J.

The appellee, an infant, suing by his next friend, recovered a judgment against the appellant for a personal injury. At the time of the injury, and for many years before, the appellant owned and maintained, at the city of Hammond, railroad yards, side-tracks, switches, a roundhouse and a turntable, in the southern part of the city. The tracks of the appellant's railroad ran nearly north and south, and the tracks of the Monon railway company, west of the appellant's grounds, and running nearly parallel with the appellant's tracks, were graded up between two and three feet. Douglass street crossed these tracks about two thousand feet north of the turntable, and bounded appellant's yards on the north. About thirty-six hundred feet south of the turntable another street, crossing th tracks, bounded the appellant's yards on the south. The east side of Harrison park, a public park of the city, was west of the Monon tracks, and about three hundred feet from the turntable, which was situated in the western part of appellant's yards, in front of the roundhouse. Webb street, running east and west, ran along the north side of Harrison park, and terminated at the west side of the Monon tracks, nearly opposite the roundhouse and turntable, while from that terminal point Park avenue extended northward along the west side of the Monon tracks.

The southern portion of the appellant's grounds was enclosed by a wire fence, which ran east and west, passing about three feet south of the roundhouse. A beaten path ran from the Monon railway, at a point about sixty feet south of Webb street, eastward between the wire fence and the roundhouse, and thence northeastward to the turntable, in front of the roundhouse, and about one hundred eighty feet east of it. The grounds in which the roundhouse and the turntable were situated were unenclosed. A short distance north of the turntable was a large excavation on the appellant's grounds, filled with water and used as a swimming pool. The roundhouse was in a dilapidated condition, and was not used by the appellant; but the turntable was occasionally used for turning locomotives, which were brought upon it by a track which approached from the north, and connected with the track upon the turntable. Harrison park, containing twenty-five or thirty acres, was resorted to for picnicking and general outing in summer, and for skating and coasting in winter. Carroll street, one square north of Webb street, and parallel with it, extended eastward to the Monon railway. There was a path extending from Webb street across the Monon railway to the west wall of the roundhouse, and thence around its north side to the north side of the turntable. Opposite the east end of an alley which ran east and west between Carroll and Webb streets, another path extended southeastward, passing the north side of the roundhouse, to the turntable. There was also a path from Williams street, one square north of Carroll street, which ran southeastward to the Monon tracks, and thence around the north side of the swimming hole. All these paths united with a path running along the tracks of the appellant. The turntable had an iron frame fifty-eight feet in diameter, and turned on a pivot, above an excavation eighteen inches in depth, and was supported at the circumference by wheels which ran on a track extending around the excavation. The frame was floored over, and had a track of two rails, and two handles at opposite sides for turning the table. It was used for turning freight engines, mostly, sometimes three or four times a day, and sometimes once or twice a week. The rails of the track upon the turntable and those of the side-track connected with the table came close together when opposite to each other. The roundhouse and the turntable could be seen from the park, and were within six hundred feet of the nearest dwellinghouse. The turntable was permitted by the appellant to remain unfastened. The roundhouse and the turntable were frequently resorted to as playing places by the children of the city, and they had been so used for a number of years before the appellee's injury. The railroad grounds and tracks in the vicinity of the turntable were traversed daily by large numbers of people going to and from their work, and were frequented by children who played in Harrison park, especially when they were attending picnics. Appellant's employes and its man in charge of the roundhouse and turntable frequently had seen children playing on the turntable, and such employes had more than once turned the table for children to ride on it, and had given children permission to turn the table, provided they would restore it to its former position. Appellant's agent in charge of its yards and tracks at Hammond knew that children frequented the turntable; but the employes of the appellant had never driven children away from the turntable, or forbidden them to use it or to ride upon it, or taken any active measures to prevent them from using it. On two occasions before the injury of appellee, children six or seven years old had been injured while playing on the turntable, and one of appellant's employes had carried away from the turntable a child injured there.

The appellee, who was a boy not quite six and one-half years old, resided with his parents on Douglass street. With the knowledge and consent of his father, he left his home after noon on Sunday, December 1, 1901, to go about five blocks, to visit some boy friends residing at the corner of Webb street and Homan street, which ran north and south along the west side of Harrison park. He had often before been at the home of these friends, having lived in their neighborhood, and having been in the habit of playing with them. He afterward went across the street into Harrison park, and across the park to the Monon tracks, at a point south of the turntable, seeking his brother and another boy. There he met two boys about thirteen years old, going north along the Monon railway, and, at their suggestion, walked with them northward toward his home along that railroad. When they came to a point on the railroad opposite the turntable, and not on the appellant's grounds, the appellee noticed the turntable, and asked the other boys to go with him to it and give him a ride on it, which they did, going eastward along the path which ran between the wire fence and the roundhouse. The appellee had ridden on the turntable before. The appellee sat down on the west side of the turntable, and the other two boys moved it around by pushing upon its handles. The turntable was not fastened, but was open, the track thereon extending east and west. When the appellee, thus situated, had ridden about one-fourth of the way around, and had arrived at one of the rails of the track for the passage of locomotives on to and off of the turntable, the rails of which projected over the brink of the excavation so as to meet the rails of the track upon the turntable, the appellee was caught by the projecting rail, and his left leg was torn and crushed, the bones thereof being broken, and his right leg was severely lacerated. He was carried home by the other two boys, and thence he was removed to a hospital, where, after some weeks of nursing, his left leg was amputated.

As the case is presented by counsel, no matter for decision is before us, except the question as to the duty of the appellant toward the appellee with respect to the turntable, taking into consideration all the facts of the case. Assuming that a railroad company is under no obligation to lock or otherwise fasten or render immovable or to guard its turntable, so situated, when not in use for the purpose for which it was constructed and maintained, so as to prevent a like injury under like circumstances to a person capable of appreciating the danger, it does not necessarily follow that no such obligation exists with reference to a child, who, because of its immaturity and consequent want of reason and judgment, is not chargeable with negligence, or is capable of only a small degree of care for its own safety.

In Lynch v. Nurdin (1841), 1 QB *29, the defendant's cart, in charge of his servant, having been left standing unattended, in a street, where there were a number of children playing, while the cartman went into a house, the plaintiff, under seven years of age, climbed upon the cart. Another boy led the horse a few steps, the plaintiff fell off, and, the wheel running over him, his leg was thereby broken. The defendant was found liable, and although it was considered that the plaintiff was a trespasser, and contributed to his injury by his own action, it was held that the trial judge properly left to the jury whether the defendant's conduct was negligent, and whether the negligence caused the injury. In the course of his opinion, Lord Denman, C. J., observed, that if it were probable that "large parties of young children might be reasonably expected to resort to the spot, * * * it would be hard to say that a case of gross negligence was not fully established. But the question remains, can the plaintiff then, consistently with the authorities, maintain his action, having been at least equally in...