Smith v. Hopkins

• Decision Date: 07 October 1902
• Docket Number: 865.
• Citation: 120 F. 921
• Parties: SMITH v. HOPKINS.
• Court: U.S. Court of Appeals — Seventh Circuit

120 F. 921

SMITH v. HOPKINS.

No. 865.

United States Court of Appeals, Seventh Circuit.

October 7, 1902

Franklin L. Velde, for plaintiff in error.

W. S Horton, for defendant in error.

This is a suit to recover damages for the death of the intestate of the plaintiff in error, and a review is sought of the judgment below, entered upon a verdict directed by the court.

In the year 1890 the railway company, prior to the receivership leased several acres of land situated upon the north side of the Mackinaw river, in Tazewell county, Ill., cleared the land, and fitted the same for a pleasure resort, building dining and dancing halls, cottages, and stands, and sought to induce the public to frequent the place for the purpose of pleasure, including fishing and boating. These pleasure grounds lay partly on the east and partly on the west side of the railway, and north of and extending to the Mackinaw river, and were fenced and in charge of a custodian. The station was on a trestlework at an elevation of 15 feet above the ground, the trestle continuing a distance of 300 feet to the north and a distance of from 780 to 900 feet to the south, within that distance spanning the Mackinaw river. At the north end of the trestlework, and to the north of the station, were stairs descending to the pleasure ground below and at the center of the platform of the station was an incline descending to the grounds upon the east side of the railway. In October, 1895, the receiver executed a new lease of these pleasure grounds, and also of a piece of ground on the south of the river adjacent to the west line of the right of way, and upon the north bordering upon the river. This lease was for the period of 1 year, with the privilege of a further period of 14 years if desired by the receiver or his successors or by the purchaser of the railway. It was agreed that the tract on the south side of the river might be cleared, but should not be fenced, and might be used in connection with and as part of the pleasure grounds then occupied by the company on the north side of the river. It was, however, shown in evidence that the land upon the south bank of the river had never been cleared, and was not in fact prepared for or used as pleasure grounds at the time of the injury complained of, but was covered with an undergrowth and sand and drift. At the east of the right of way, and on the south bank of the river, was a pasture lot owned by some other party, and fenced, which was resorted to occasionally by pleasure seekers at the grounds for the purpose of playing ball. The south shore of the river was sometimes resorted to for fishing. The ties of this trestlework were eight inches wide and four inches apart, and people frequently crossed the river upon the trestlework, there being no other bridge spanning the river. At the south end, and on the west side of the trestlework, were steps leading to the land below, supposed to have been placed there at the time of the construction of the bridge. At a distance of 15 feet south of these steps the company had placed upon its right of way a pile of railway ties without proper support, and it was in respect of this pile that negligence is charged. On the 28th of May, 1900, the plaintiff's intestate, a lad of 18 years of age, a scholar in a high school, being one of a picnic party on that day visiting the grounds, with two or three of his companions crossed upon the railway bridge from the north, and upon the right of way of the company south of the trestlework, for a walk, and without any special purpose, and went upon this pile of railway ties. The pile fell, and young Smith was killed.

Before JENKINS, G...