City of Chicago v. Baker

• Decision Date: 02 January 1900
• Docket Number: 629.
• Citation: 98 F. 830
• Parties: CITY OF CHICAGO v. BAKER.
• Court: U.S. Court of Appeals — Seventh Circuit

98 F. 830

CITY OF CHICAGO v. BAKER.

No. 629.

United States Court of Appeals, Seventh Circuit.

January 2, 1900

Thomas J. Sutherland, for plaintiff in error.

Morris St. P. Thomas, for defendant in error.

Before WOODS, Circuit Judge, and BUNN and ALLEN, District Judges.

WOODS Circuit Judge.

For the opinion delivered in this case when first here, see City of Chicago v. Baker, 58 U.S.App. 569, 30 C.C.A. 364, 86 F. 753. Some of the questions then decided are again brought forward, but, of course, are not open to reconsideration. Other questions, however, are presented. After the remand of the case, an amended declaration was filed, to which the city alone was made defendant, and by which damage was claimed only for the vacation of 21st street within the limits of the right of way of the Chicago, Rock Island & Pacific Railway Company and the Lake Shore & Michigan Southern Railroad Company. At the commencement of the trial, at the instance of the plaintiff in error, the jury was sent, in charge of a bailiff, to view the premises; and it is assigned for error that the court refused to direct a view of the entire work of the elevation of the tracks of the railroads named from 17th street to 63d street, that the court unduly restricted the opening statement which should be made by counsel for the plaintiff in error before the jury's view of the premises was had, and that the court refused permission to counsel or other representative of the plaintiff in error to be present with the jury at the time of the view. These were matters of discretion, and, while we incline to think it the better practice that representative of either party, if the privilege be asked, should be allowed to be present and witness the action and conduct of the jury in taking a view of premises, we are satisfied that in this instance no harm resulted from the refusal. The situation was so simple that a diagramatic representation would have been enough, without sending the jury out. The scope of the examination ordered including, as it did, 21st street from the lake to the river and other neighboring streets and the subways near the vacated portion, was certainly sufficient. To have required more would have been needless, and possibly misleading.

The important questions in the case concern the elements of the injury which the jury were permitted to consider. In the amended declaration it is averred that prior to the alleged vacation a crossing of the streets and railroad tracks at grade had been maintained, so that pedestrians and vehicles and the public generally were able to cross at that point that by reason of the premises large numbers of persons passed the land of the plaintiff, which in that way was accessible and in close proximity to the portion of the city west of the crossing; that upon the vacation of the street the railroad companies, with the consent of the city, built and ever since have maintained, upon and across the entire portion of the street within their right of way, a structure of earth and stone of the height of ten feet, and have laid thereon their railroad tracks; and that by reason of the vacation of that portion of the street, and the construction and maintenance of the railway embankment, 'the public, and all persons and vehicles, were and are absolutely excluded and prevented from using said street for the purpose of...