Livak v. Chicago & E.R. Co.

• Decision Date: 22 October 1921
• Docket Number: No. 13966.,13966.
• Citation: 299 Ill. 218,132 N.E. 524
• Court: Illinois Supreme Court
• Parties: LIVAK v. CHICAGO & E. R. CO. et al.

299 Ill. 218

132 N.E. 524

LIVAK

v.CHICAGO & E. R. CO. et al.

No. 13966.

Supreme Court of Illinois.

Oct. 22, 1921.

Error to First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Joseph H. Fitch, Judge.

Action by John Livak, by Leo N. Rivkin, his guardian, against the Chicago & Erie Railroad Company and others. Judgment for plaintiff was reversed, without remand, by the Appellate Court for the First District (220 Ill. App. 394), and plaintiff brings certiorari.

Reversed and remanded.Finn & Miller and Elmer M. Leesman, all of Chicago, for plaintiff in error.

Adams, Follansbee, Hawley & Shorey, of Chicago (Mitchell D. Follansbee and Clyde E. Shorey, both of Chicago, of counsel), for defendant in error Chicago & E. R. Co.

C. G. Austin, Jr., J. Raymond Barse, and Samuel Kassel, all of Chicago, for defendant in error Chicago & W. I. R. Co.

Glennon, Cary, Walker & Murray, of Chicago, for defendant in error New York, C. & St. L. R. Co.

DUNCAN, J.

John Livak, plaintiff in error, a minor of the age of five years, by Leo N. Rivkin, his guardian, recovered a judgment in the superior court of Cook county in the sum of $18,000 against the Chicago & Erie Railroad Company, the Chicago & Western Indiana Railroad Company, and the New York, Chicago & St. Louis Railroad Company, defendants in error. On appeal to the Appellate Court for the First District, that court reversed the judgment of the trial court, without remanding the cause, expressly denying any intention to make a finding of fact different from that found by the trial court. Petition for certiorari was allowed by this court to review the record on error.

The declaration contained six counts, averring that defendants in error, as owners, lessors, and lessees, were in possession and control and operated certain steam railroad systems in the city of Chicago, the rights of way of which contain six parallel tracks running at grade in a southeasterly and northwesterly direction across 107th and 108th streets, and near Bensley avenue, in said city. All the counts set forth a certain ordinance of the city of Chicago enacted March 26, 1890, providing, in substance, that every person or corporation owning, leasing, or operating a steam railroad in the corporate limits of the city shall, in such time as may be prescribed by the mayor and commissioner of public works, construct or cause to be constructed on each side of its tracks, and in such place as the mayor and commissioner aforesaid shall approve or direct except at public street crossings, substantial walls or fences of such material, designs, proportions, and height as shall be determined and approved by such mayor and commissioner. The counts further allege that said ordinance was re-enacted in 1905 as section 1994, and in 1911 as section 2198, of the Revised Municipal Code of said city, and the revised ordinances are set forth in the declaration. The fifth and sixth counts of the declaration set up the provisions of section 2183 of the Municipal Code of Chicago for the year 1911, and section 2199 thereof.

All the counts charge that the defendants in error constructed fences along their rights of way at and near the place of the accident in pursuance of the direction of the mayor and commissioner of public works, but that they thereafter negligently failed to maintain the fences, and allowed them to become broken down and out of repair, and as a direct consequence thereof plaintiff in error, while passing over the tracks of defendants in error at one of the broken places in the fences near 108th street, was struck and injured by a certain engine and train of cars operated by defendants in error. Counts 5 and 6 also charge that defendants in error, for a long time prior to the injury of plaintiff in error, May 15, [299 Ill. 221]1914, operated their trains greatly in excess of the 6 and 10 miles per hour limit named in section 2183, and had operated their railroads and enjoyed the benefits of higher speed conferred by sections 2198 and 2199. The ordinances thus pleaded in the declaration are the same ordinances that were pleaded in the declaration in the case of Carlin v. Chicago & Western Indiana Railroad Co., 297 Ill. 184, 130 N. E. 371.

The facts as they appear in the record are that the Chicago & Western Indiana Railroad Company owns the four easterly tracks crossing 107th and 108th streets and that they are situated on the westerly side of its right of way, which is 66 feet wide at those crossings. The New York, Chicago & St. Louis Railroad Company owns the two westerly tracks situated on the easterly side of its right of way, which joins that of the Chicago & Western Indiana and is also 66 feet wide. All of the tracks are parallel at said street crossings. The Chicago & Erie Railroad Company operated trains upon and along the tracks of the Chicago & Western Indiana Railroad Company as lessee, and it was a train owned and so operated by this company that injured the plaintiff in error, who lived on Bensley avenue, between 107th and 108th streets, about a block and one-half east of the railroad tracks. Bensley avenue runs north and south, and 107th and 108th streets east and west.

On the morning of May 15, 1914, plaintiff in error, accompanied by another small boy, left his home and crossed the six railroad tracks for the purpose of picking wild flowers, which grew on the west side of the tracks. They picked the flowers and started back across the tracks going home. They had crossed all of the tracks, except the east track of the Chicago & Western Indiana, and as they approached it plaintiff in error tripped and fell upon the track and caught his foot in a hole between the ties. While attempting to loosen his foot, a train operated by the Chicago & Erie Railroad Company ran over his leg, inflicting such injuries as made it necessary to amputate his leg between the ankle and knee. He was injured between 107th and 108th streets, and was found shortly thereafter by a policeman about 100 feet from the track, crawling towards home. Immediately west of where plaintiff in error was found there were parts of an old barbed wire fence on the east side of the right of way of the Chicago & Western Indiana Railroad Company, about 15 feet east of the east track, which fence was broken at several places.

It is contended by defendants in error that plaintiff in error and his companion gave a different version of their intentions and transactions to other parties shortly after the accident than was given by them on the trial; but, as the Appellate Court reversed the judgment for errors of law only, plaintiff in error is entitled to have the facts shown by his evidence considered as here stated for the purpose of this review of the record, as the jury evidently made the same finding.

The evidence tended to show that the New York, Chicago & St. Louis Railroad Company had been notified to build a fence on its right of way in conformity with the ordinance of March 26, 1890, and that that company had inclosed specifications to the city authorities of the fence it proposed to build, in its letter of September 4, 1890, to W. H. Purdy, commissioner of public works, stating that it would arrange for its superintendent, Gorham, to arrange a meeting with the engineer of the city, and go over the ground, and decide as to the kind of fence that was to be put up, and to see the locations where it was impossible to put up any fence on account of adjacent waterways. The evidence also tends to show that this railroad company received permits from the city to operate its trains with reference to speed on condition that it complied with its duty to fence its road; that in 1891 there was built on its right of way west of the tracks a fence from 106th street to 110th street, except across 108th street, which was then open for travel, and that this street was closed to travel in about 1912; that it had operated its trains after 1891 greatly in excess of the 6 and 10 mile limit allowed for freight and passenger trains in the absence of such fence or wall, and that its speed for passenger trains at the point in question exceeded 30 miles an hour. This latter railroad company makes no claim that it had not been notified by the city authorities to erect such fences, or that it had erected them after being notified to do so.

To prove notice to the Chicago & Western Indiana Railroad Company to comply with the requirements of the ordinance in regard to building fences, plaintiff in error offered in evidence the same letters and documents that were offered for that purpose against it in the Carlin Case, supra, to wit, the letter of March, 27, 1890, to ‘sundry railroads,’ signed by the commissioner of public works; the letter of April 18, 1890, addressed to the vice-president of this defendant...