Follett v. Illinois Cent. R. Co.

• Decision Date: 18 June 1919
• Docket Number: No. 12592.,12592.
• Citation: 123 N.E. 592,288 Ill. 506
• Parties: FOLLETT v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

288 Ill. 506

123 N.E. 592

FOLLETT

v.ILLINOIS CENT. R. CO.

No. 12592.

Supreme Court of Illinois.

June 18, 1919.

Error to Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge.

Action by Frank F. Follett, administrator, against the Illinois Central Railroad Company. A judgment for plaintiff was affirmed on appeal to the Appellate Court, and defendant brings certiorari. Reversed and remanded.

Farmer, J., dissenting.Woodward & Hibbs, of Ottawa (John G. Drennan, of Chicago, of counsel), for plaintiff in error.

R. C. Donoghue, of La Salle, and Butters & Clark and H. H. Bayne, both of Ottawa, for defendant in error.

CARTWRIGHT, J.

The plaintiff in error, the Illinois Central Railroad Company, maintained on the west side of its single main track, running northerly and southerly, a depot in the north part of the city of Oglesby until December, 1912, when it abandoned that depot for a new one half a mile or more south, near Walnut street, and the old depot was kept locked and used only by the section men for their tools. The depot was on the west side of the track and was 48 feet long, and between it and the track there was what is called a platform, about 150 feet long and 14 feet wide, made of cinders covered with crushed stone, and there was a wooden curbingaround it. The platform was 8 or 10 inches higher than the rail, and south of it there was a passing track on the east side of the main line, leaving that line at a switch point about 250 feet south of the depot. The railroad company kept an ordinary push car with a platform about 8 feet long and about 5 of 6 feet wide, at the depot, and it was sometimes locked or fastened and sometimes not. On the evening of June 23, 1913, the push car was not locked or fastened and could be pushed about. Shortly after 7 o'clock on that evening a freight train headed north, consisting of 28 cars loaded with cement and 8 empty coal cars at the rear, without a caboose, stood on the passing track waiting for a passenger train to go south. The passenger train went by, and the switch was then lined for the main track, so that the freight train could go north. When the last car went out of the switch, the rear brakeman lined the switch for the main line, gave the go-ahead signal, and climbed on the rear coal car. The train was moving 3 or 4 miles an hour, and it then increased its speed to about 7 or 8 miles an hour in passing the depot. Cassie Kosinski, a girl 7 years and 9 months of age, lived with her parents about 700 feet from the depot. The family had supper about 6:30, and afterward Cassie went to the depot platform, and as the train passed she was run over and fatally injured, so that she died the next day. Her administrator brought suit for damages in the circuit court of La Salle county, and the cause was tried upon the original declaration of one count and three additional counts, charging defendant with liability on the grounds that the push car was attractive and enticing to children; that trains frequently passed the platform, and Cassie was induced to go to the place to play by the fact of the push car standing there unlocked; that children, while playing with the push car, would be liable to be struck by passing trains, or slip or fall down the abrupt edge of the platform, or be drawn under the wheels of a passing train by air suction; that the defendant knew, or had a reasonable opportunity to know, that children had been in the habit of going to the platform to play and pushing the push car about on the platform; and that Cassie, while playing with the push car, was unavoidably struck by the freight train, run over, and injured so that she died. The plea was not guilty.

The controverted questions of fact were whether the defendant was guilty of negligence in leaving the push car unlocked; whether the parents of the child exercised ordinary care with respect to her going to the depot; whether she was at the time playing with the push car and pushing it about; and, if so, whether it was the proximate cause of her injury and death. There was a verdict, followed by a judgment for $3,500, and on appeal to the Appellate Court for the Second District the judgment was affirmed. The record has been brought from the Appellate Court by writ of error, in pursuance to a certiorari allowed by this court.

There was no witness testifying who saw the accident. A witness who lived east of the depot testified that he went to the depot and crossed the track to the platform; that as he went over the platform he saw Cassie Kosinski pushing the push car north near the south end of the depot, a foot or a foot and a half west of the track; that there were other children there, but not close to her, and she was the only one pushing the car; that he passed the engine of the freight train south of the platform and the train was not going fast; that he walked a little distance and heard somebody scream, and turned around and saw a brakeman pick up the child about 5 or 6 feet north of the place where he saw her pushing the car; and that the car then stood near the edge of the platform, about the same distance as when he passed it before. He was a Lithuanian, and testified at the trial through an interpreer, and he had been examined in English by an agent of the defendant concerning what he knew. His answers to questions at that time were taken down by a stenographer, who testified that he spoke English and the witness understood what he said. There were differences in the statement then made from his testimony at the trial, the chief material difference being that there were lots of ‘kids' pushing the car, and there were somewhat different statements at the trial as to the place where the child was picked up; but, of course, some difficulty in speaking English when the statement was given must be taken into account. On the part of the defendant the rear brakeman, who had set the switch and climbed on the last car, testified that he gave a stop signal when he heard some one scream, and ran and picked up the child, and afterward gave her to her mother; that he saw the push car at that time, and it was about a foot from the depot and 12 or 15 feet from the railroad track; and that when he picked up the child he saw a woman and baby right north of the depot, but she disappeared all of a sudden, and he did not see her go. The engine foreman in charge of the train, who was forward brakeman, testified that after the passenger train went through he lined up the switch for the main track, to let the freight train out of the passing track, and after a few cars had passed he got on top somewhere between the engine and the eighth or tenth car and stood up on a box car; that the train was going 3 or 4 miles an hour, and in passing the depot he saw some children and a woman with a baby in her arms; that there were three girls there, running around playing at the south end of the depot; that he did not see any push car, and did not see anybody pushing the car; that he started for the Kosinski home to call the parents; that...