Smymour v. Union Stockyards & Transit Co.

• Decision Date: 07 February 1907
• Citation: 224 Ill. 579,79 N.E. 950
• Court: Illinois Supreme Court
• Parties: SMYMOUR v. UNION STOCKYARDS & TRANSIT CO. et al.

224 Ill. 579

79 N.E. 950

SMYMOUR

v.UNION STOCKYARDS & TRANSIT CO. et al.

Supreme Court of Illinois.

Dec. 22, 1906.

Rehearing Denied Feb. 7, 1907.

Appeal from Branch Appellate Court, First District; Lockwood Honore, Judge.

Action by Mattie Seymour against the Union Stockyards & Transit Company and others for personal injury. From a judgment of the Appellate Court affirming a judgment in defendants' favor, plaintiff appeals. Affirmed.B. J. Wellman (Arthur A. House, of counsel), for appellant.

Winston, Payne & Strawn (F. S. Winston and John D. Black, of counsel), for appellees.

Mattie Seymour, a minor, by his next friend, brought an action on the case in the circuit court of Cook county against the Union Stockyards & Transit Company and the Chicago Junction Railway Company to recover for personal injuries sustained by him on November 9, 1899, immediately south of Forty-Ninth street, between Wallace street and Union avenue, in the city of Chicago. At the close of the plaintiff's testimony in the court below the defendants made a motion to exclude from the jury all the evidence offered and received on behalf of the plaintiff, and to instruct the jury to find the defendants not guilty. The court sustained the motion, and instructed the jury to return a verdict in favor of the defendants. After overruling a motion for a new trial the court entered judgment on the verdict of the jury in favor of the defendants and against the plaintiff for costs. The plaintiff appealed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed. A certificate of importance having been obtained, a further appeal has been prosecuted by the plaintiff to this court.

Forty-Ninth street, in the city of Chicago, runs east and west. It is intersected by Wallace street, Union avenue, and Halsted street in the order named; Wallance street being the most easterly of these three streets. At the time Seymour was injured the Union Stockyards & Transit Company owned a right of way adjoining Forty-Ninth street on the south, between Wallace and Halsted streets, on which were laid a number of railroad tracks; the most northerly of these tracks being six or seven feet south of Forty-Ninth street and running parallel therewith. These tracks were operated under a lease by the Chicago Junction Railway Company, and a large number of trains passed over the tracks each day. There was no fence, wall, or other line of demarkation between Forty-Ninth street and the right of way. About two months prior to November 9, 1899, large quantities of clay had been brought to this place on flat cars and left on the north side of the railroad tracks. The clay had been thrown off the flat cars in piles, which formed an uneven, continuous bank, extending from Wallace street to Halsted street. These piles varied from two to four feet in height, and on the south side sloped down to the railroad tracks. On the north side, as the evidence tends to show, they sloped down into and upon Forty-Ninth street. The vicinity was thickly populated, and a great many children lived in the neighborhood of Forty-Ninth street and Union avenue. These children had been accustomed to play on vacant lots on the north side of Forty-Ninth street; but as soon as the clay had been left along the track they commenced to play upon the bank or piles of clay, and continued so to do until Seymour was injured. They moulded the clay with their hands into cakes, pies, marbles, and the like, and baked these in fires which they built beside a large rock which had been left upon the north side of the clay bank. They also stood upon the piles and watched the trains pass, or ran along the top of the bank with the train while it was passing. On the date above mentioned, at about 10 o'clock in the morning, Mattie Seymour was playing upon the piles of clay. At that time there were no other children there. A freight train passed over the most northerly track, and Seymour ran upon the bank of clay alongside the cars, touching them with his hands. While thus engaged he slipped and fell down the side or slope of the pile of clay to the track and under the wheels of the...