Sperry v. Wabash R. Co.

• Citation: 55 F. Supp. 825
• Decision Date: 29 June 1944
• Docket Number: Civ. No. 352-D.
• Parties: SPERRY v. WABASH R. CO. et al.
• Court: U.S. District Court — Eastern District of Illinois

55 F. Supp. 825

SPERRY v. WABASH R. CO. et al.

Civ. No. 352-D.

District Court, E. D. Illinois.

June 29, 1944.

C. E. Tate, of Champaign, Ill., and W. A. Nichols, of Urbana, Ill., for plaintiff.

Henry I. Green, of Champaign, Ill., for defendants.

LINDLEY, District Judge.

At the close of all the evidence, defendant's motion for a directed verdict was denied. The jury returned a verdict for $4,000 and defendant now moves for judgment notwithstanding it.

Plaintiff was injured by a locomotive of defendant while it was proceeding from a southeasterly direction in a northwesterly direction in the city of Urbana. Plaintiff and her companion, a girl of similar age, ten years, were walking on the right of way, between the tracks, on a path used by pedestrians for a great many years as a matter of convenience. The two girls approached the railroad on California Street which runs east and west and crosses the railroad, and after having waited in the cold for a bus which did not appear and having argued as to whether they should walk down the railroad track, proceeded on the track toward Illinois Street to a point approximately half way between the two streets.

Defendant's engine was proceeding in a reversed position, drawing five cars. It came into Urbana some four or five blocks southeast of the place of the accident, the engineer being on the lookout on one side and the fireman on the other. The evidence is undisputed that as the train came into the city the service brakes were applied, reducing the speed of the train; that at each crossing, whistles were blown; that the bell was ringing; that the engineer and fireman saw the two girls; that the emergency brakes were immediately applied and continuous short blasts of the whistle thereafter given as emergency alarms; that plaintiff's companion called to her, warning her, and ran off the track to the east and up the bank to safety; that plaintiff attempted to follow but somehow caught her foot on the rail, tripped and fell so that the engine ran over her leg necessitating its amputation. The locomotive came to a stop at the Illinois Street crossing. Defendant's evidence was that the train was going twelve to fifteen miles an hour; that everything was done to avoid the accident that could have been done. Some of plaintiff's witnesses testified that the train was running over thirty miles an hour. Substantially the only controversy of fact lay in the estimates of the witnesses as to the rate of speed.

Obviously it was the duty of the railroad company under the averments of the complaint to exercise the ordinary care of a reasonably prudent railroad company under the proved circumstances to avoid injuring the plaintiff and the duty of plaintiff to exercise the ordinary care of a reasonably prudent child of her years for her own safety. As to specific definition of the duty of the railroad company we find in the Illinois decisions many authoritative and informative announcements. Thus the Supreme Court of Illinois said, under similar facts, that the obligation was no greater duty than the use of reasonable care to discover persons using the right of way for longitudinal pedestrian travel and to avoid injuring them. Morgan v. New York Cent. R. Co., 327 Ill. 339 at page 344, 158 N.E. 724, at page 726. The court added: "The engineer was not required to stop the train until it became apparent that Morgan had not heard or would not heed the signal."

In the earlier case, Illinois Cent. R. Co. v. O'Connor, 189 Ill. 559, 59 N.E. 1098, 1100, many persons had used defendant's right of way. The court said: "This court is committed to the doctrine that a railroad company, in the operation of its trains, owes no duty to a trespasser upon its right of way or tracks, except that it will not wantonly or willfully inflict injury upon him; and we have frequently held that the mere fact that * * * those operating its trains may have knowledge of the fact that persons have been in the habit of crossing its tracks or walking upon them at places other than public crossings or public places, will not amount to proof of willful and wanton disregard of duty toward such trespassers." In the still earlier case, Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500 at page 506, 22 Am.Rep. 112, the court announced: "The right of way was the exclusive property of the company, upon which no unauthorized person had a right to be, for any purpose. The plaintiff was traveling upon defendant's right of way, not for any purpose of business connected with the railroad, but for his own mere convenience, as a footway. * * * But, because the company did not see fit to enforce its rights, and keep people off its premises, no right of way over its ground was thereby acquired. It was not bound to protect or provide safeguards for persons so using its grounds for their own convenience. The place was one of danger, and such persons went there at their own risk, and enjoyed the supposed implied license subject to its attendant perils. At the most, there was here no more than a mere passive acquiescence in this use."

In Cunningham v. Toledo, St. L. & W. R. Co., 260 Ill. 589 at page 594, 103 N.E. 594, at page 596, the court said: "The doctrine has been firmly established that the railroad company owes no duty in the operation of its trains to such persons other than not to wantonly or willfully inflict injury upon them. * * * A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident. * * * Permission to pass over an estate imposes no obligation on the owner to provide against accident."

In Illinois Cent. R. Co. v. Eicher, 202 Ill. 556, 67 N.E. 376, 378, plaintiff was walking down a cinder path between the double tracks of the railroad which had been generally used because it was a better road for pedestrians than the public road alongside the right of way furnished. The court said: "A railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or willfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril; and it makes no difference in that respect whether he is a trespasser, a mere licensee, or one who is on the tracks by mere sufferance, without objection of the company. One who goes upon a railroad track by permission, or where permission may be implied from the circumstances, may be regarded as having a license, but one who is there by mere sufferance is not a licensee, and may be a trespasser. In either case there is no duty toward him, except to refrain from wantonly or willfully injuring him." (Italics supplied).

In Illinois Cent. R. Co. v. Noble, 142 Ill. 578, 586, 32 N.E. 684, 686, the court said: "The railroad company has the right to an unobstructed use of its track, and it is justified in presuming, and in acting upon the presumption, until the contrary is brought to its attention, that its right in this respect will not be interfered with. * * * We are not prepared to hold that the duty of a railroad company to mere trespassers * * * requires such company to run its trains with a view to the constant probability of trespassers upon its track."

In Peirce v. Walters, 164 Ill. 560, at page 563, 45 N.E. 1068, at page 1069, the court approved an instruction stating that "the law did not impose any duty whatever upon his engineer, to discover the plaintiff's presence upon the same, but only required him, after he discovered the plaintiff, and had knowledge that he was in a perilous position, to exercise reasonable care and prudence to avoid collision * * *. The defendants are liable * * * only if the engineer failed to exercise ordinary care to prevent the injury after he became aware of the danger to which the plaintiff was exposed; and by ordinary care is meant such care as would be ordinarily used by a prudent person performing a like service under similar circumstances." Thus in Illinois, the duty of the railroad company to a licensee and to one trespassing is exactly the same,—not wantonly or willfully to injure him and to exercise reasonable care for his safety after discovering his peril.

In Illinois Cent. R. Co. v. Eicher, supra, the court added: "One who has permission or license to travel along the tracks takes it subject to the use of the road without reference to him. The license imposes no obligation to take precautions for his safety, or to run trains in any respect different from what they would be run if he was not there. He takes the premises as he finds them, with all the attendant dangers connected with their use, only subject to the limitation that the company shall not inflict upon him wanton or intentional injury. * * * `The safety of the traveling public demands that the right of way of a railroad company should be unobstructed.' A railroad company has no right to disregard its obligations to the traveling public, or disable itself from their full performance. "The rights of trespassers and mere licensees are entirely different from the rights of those who come upon the premises of a railroad company for a purpose connected with its business, where the invitation and the mutual interest raise a duty toward them. An invitation to come upon the premises at proper places for the purposes of business may be implied, but in this case the deceased was not upon the premises of the defendant for any such purpose. There is no controversy whatever over the fact that he was walking upon this path merely for his convenience, and that * * * at most, there was a mere license to the public, arising out of the fact that defendant had made no objection to the use made of the walk. All that was proved was that the space between the two main tracks was filled with cinders and ballast level with the tops of the ties, so as to be smooth and...