Maskaliunas v. Chicago & W.I.R. Co.
| Decision Date | 09 October 1925 |
| Docket Number | No. 16700.,16700. |
| Citation | 149 N.E. 23,318 Ill. 142 |
| Parties | MASKALIUNAS v. CHICAGO & W. I. R. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Action by Joseph Maskaliunas against the Chicago & Western Indiana Railroad Company. From a judgment of the Appellate Court, First District, affirming a judgment in favor of plaintiff, defendant appeals.
Affirmed.Appeal from Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Joseph H. Fitch, Judge.
Edward W. Rawlins, of Chicago (H. T. Dict, of Chicago, of counsel), for appellant.
Finn & Miller, of Chicago, for appellee.
The Appellate Court for the First District having granted a certificate of importance, this appeal is prosecuted to review its judgment, affirming the judgment of the superior court of Cook county in favor of Joseph Maskaliunas for damages resulting from an injury received on the right of way of the Chicago & Western Indiana Railroad Company. The evidence in this record establishes the following facts:
The injury occurred about 4:30 p. m., September [318 Ill. 144]29, 1921, near 104th street, in the city of Chicago. Appellee was then 7 years and 10 months old. When appellant constructed this line of railroad, some time prior to 1890, the territory in the vicinity of the place of the accident was open country, and it erected on each side of its right of way a barbed wire fence about 4 feet high. March 26, 1890, an ordinance was passed by the city council of the city of Chicago, requiring every company operating a steam railroad within the city over tracks laid at grade to construct on each side of its tracks, except where public streets crossed the same, substantial walls or fences. April 2, 1890, the mayor and commissioner of public works of the city of Chicago prepared general specifications relating to such walls and fences, which have been published and are now on file among the documents filed in the office of the commissioner of public works of the city of Chicago. Shortly after this ordinance went into effect the territory in question was annexed to the city. One Hundred and Third street is a paved east and west thoroughfare, crossing the right of way of appellant at right angles, about a block north of the point where the accident occurred. One Hundred and Fourth street does not cross the right of way. West of the right of way, and north of 103d street, is Fernwood Subdivision Park, and south of 103d street is a coal yard. East of the right of way, between 103d street and 104th street, is a public park, one-half block wide, at the south end of which is a large brick building containing a public swimming pool. Directly south of this, on the other side of 104th street, is a pumping station and pipe yard. Extending south from the southwest corner of the natatorium across 104th street is a high iron fence along the east line of the right of way, and on the same side, but extending north of the natatorium, is a row of wooden posts on which wire was formerly strung. This wire fence was in good repair when the territory was annexed to the city of Chicago, and it was repaired from time to time for a numberof years thereafter. No fence has been maintained along here for 6 or 8 years last past. Just inside the park, back of the posts, is a row of thick shrubbery.
At the point of the accident there are three tracks on the right of way. The accident occurred on the west track. Passenger trains operate over these tracks as fast as 35 miles an hour. A street car line crosses the tracks at 103d street, and here a flagman and gates are maintained for the protection of the public. There are sidewalks along the north, east, and south sides of the park in which the natatorium is located. There is also a sidewalk across the park at the rear of the natatorium. On the right of way, a short distance north of the west end of this sidewalk, is a rubbish pile. Both 103d street and 104th street are closely built up for several blocks east and west of the right of way, but there is open farming country both north and south of this residence section. On the day of the accident appellee swam in the pool during the early part of the afternoon and then went to Fernwood Subdivision Park, where he watched some boys play baseball until about 4 o'clock, when he went to 103d street, crossed the railroad tracks, and turned south down the right of way toward the natatorium. When he reached the rubbish pile, he stopped there and searched for rubber bands for a while. He then crossed the right of way line into the park, picked up some newspapers lying in the shrubbery, and looked at the comic strips. As he finished looking at the pictures, a long freight train passed slowly on the west track. He crossed the two intervening tracks, and in an attempt to climb up the side of the train he fell under it. His right foot and ankle were so crushed that it was necessary to amputate his leg about 5 inches below the knee. At the time of the accident two or three other boys were attempting to climb onto the moving train; the trainmen ordering them to keep off. On this day other people were walking along the tracks on the right of way, as they did on most other days.
The negligence charged in the declaration is the failure of appellant to comply with the fencing ordinance. This ordinance is set out verbatim in Curran v. Chicago & W. I. R. Co., 289 Ill. 111, 124 N. E. 330, and in substance in Carlin v. Same, 297 Ill. 184, 130 N. E. 371. Under this ordinance the obligation of the company to fence its tracks is absolute, and it is the duty of the city authorities to enforce the ordinance. At the point of the accident there was a substantial fence along the right of way, when the territory was annexed to the city and brought under the ordinance. There being a fence there, it was unnecessary for the city authorities to prescribe the time within which a fence should be built, or to determine the material, design, or height of the fence to be constructed. Under the ordinance the mayor and the commissioner of public works had the right to give specific directions regarding the erection of the fences required, but they were not required to act in the first instance, or at all, if they were satisfied with the fence built by the railroad company.
It is evident that, if the city authorities had made any effort to enforce this ordinance, or the railroad company had made any pretense of complying with it, there would have been a substantial fence along the side of this park, where children were invited to congregate in great numbers every day. The ordinance provides that passenger and freight trains shall not be operated at a speed in excess of 10 and 6 miles an hour, respectively, over tracks at grade in the city of Chicago, until the company has fenced its right of way in compliance with the ordinance. After proper fences have been built and proper protection provided at the street crossings, the company is authorized to operate its passenger and freight trains at a maximum speed of 30 and 12 miles an hour, respectively. After this territory was annexed to the city, and while the fence was maintained along the right of way, appellant regularly operated its trains at the speed permitted by the ordinance after a compliance with it. Under the holding of this court in Carlin v. Chicago & W. I. R. Co., supra, and Livak v. Chicago & Erie Railroad Co., 299 Ill. 218, 132 N. E. 524, appellant was clearly bound by the provisions of the fencing ordinance, and its contention to the contrary is without merit.
One of the principal contentions of appellant is that there is no evidence in the record tending to show that the absence of a fence along the right of way at the place in question contributed to or proximately caused the injury to appellee, but that the evidence shows that the proximate cause of the injury was appellee's own act in climbing onto the moving train. Appellee being under 10 years of age, the statute making it a misdemeanor to climb upon a railroad car without permission has no application to him. Notwithstanding this statute is general in its terms, it must be...
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