"We,
the jury, find the following special verdict in the above
entitled cause:
"We
find that the defendant, the Louisville, New Albany and
Chicago Railway Company, is, and prior to the 12th day of
April, 1891, and at that time was, a corporation duly
organized under the laws of the State of Indiana, and, as
such was, operating a line of railroad from Louisville, in
the State of Kentucky, to Chicago, in the State of Illinois;
that said line of road is located and runs through the
corporate limits of the city of Lafayette, in Tippecanoe
county, in the State of Indiana, and along on Fifth street,
in said city, occupying a track located about the center of
said street, the ties of which are eight feet long; the
distance between the rails on the inside was four feet, eight
inches and a half; that the box and platform cars used at
that time on freight trains on said railroad were from eight
feet four inches to eight feet eight inches wide; that said
street was sixty feet wide from the property line on one side
to the property line on the other, and was forty feet wide
between the sidewalks; that said street and sidewalks were in
constant use by the inhabitants of said city and the public
generally; that said Fifth street was an improved street and
in good condition in all parts of it, except the dirt piles
and holes hereinafter mentioned, on the 12th day of April,
1891, and was at that time in a populous and thickly-settled
portion of the city of Lafayette; and in the corporate limits
thereof; that on the 12th day of April, 1891, and for years
prior thereto, and ever since, there has been in force in
said city of Lafayette a valid ordinance of said city
limiting the rate of speed of all railroad
trains to six miles per hour; that some five days prior to
the 12th day of April, 1891, said defendant company, for the
purpose of removing old ties from its roadbed in said Fifth
street, and replacing them with new ones at a point on said
road about 150 feet north of Romig street in said city, and
extending north about thirty feet, put some of the dirt on
the east side and outside of the track of said company's
road in a continuous pile about thirty feet long, the base of
which, next to the track, was about one foot outside of the
ends of the ties and outside of that part of the street used
by the railroad, and in the part of the street used by the
public, which pile extended north and south along said track,
and was twenty inches high, and holes were left where said
dirt had been taken out at the sides and ends of the ties and
so remained for five days and until after the plaintiff was
injured as hereinafter shown; that the new ties were put in
and the dirt left in said piles prior to the 12th day of
April, 1891, as aforesaid, and that said dirt might have
reasonably been put back and the holes filled, and any
obstruction to the street thereby removed from time to time
as the new ties were put in; that George Sears, the plaintiff
in this suit, was born on the 22d day of April, 1883, and at
the time of the injury to him, hereinafter set forth, was
seven years, ten months and twenty days old, and resided with
his parents at the southeast corner of Romig and Fifth
streets, in said city of Lafayette; that he was a boy of
ordinary intelligence for his age, and prior to the time of
said injury had been accustomed to go on the streets of the
city of Lafayette unattended, going to and from school, going
on errands and playing upon the streets, particularly Romig
and Fifth streets near his father's residence; that on
Sunday, April 12, 1891, at about 7:30 A. M., said George
Sears, with three other boys near his age,
was playing at a game called by them stink-base,' two of
the boys having their base on the north side and two on the
south side of Romig street, which street crosses Fifth
street, running east and west, and said Fifth street runs
north and south through said city; that on said 12th day of
April, 1891, at about 7:30 o'clock in the forenoon, a
freight train on said defendant's said road, owned and
operated by the defendant, running from three or four squares
south of Romig street in said city of Lafayette to said Romig
street, crossed the same on said Fifth street, and ran along
said Fifth street, going north in the corporate limits of
said city, and past said pile of dirt situated on Fifth
street as above found, said train then running at a rate of
speed exceeding six miles per hour, to wit, at the rate of
eight miles per hour; that the train consisted of a
locomotive and twenty-five box cars; that while said train
was passing Romig street, and after two or three cars had
passed, the plaintiff started to run, and did run north on
said Fifth street, and in the same direction in which the
cars were running, and one of the other boys ran after him
for a short distance and stopped; that said plaintiff
continued running, believing that one of the boys was running
after him, and while so running, stepped on said pile of dirt
at a place where it was twenty inches high, and the dirt gave
way, causing said plaintiff to slip and fall, and slide down
said pile of dirt toward and under said moving train, which
was then running opposite the place where said boy fell, and
some of the cars, including the caboose at the south end
thereof, ran over said plaintiff, and both his legs were so
mangled and crushed by said train that it was necessary to
amputate both legs at four inches below the knees, which was
on said day accordingly done, the operation being performed
by Dr. George F. Beasley, the defendant company's
surgeon, assisted by Dr. Potel, both
reputable and competent physicians and surgeons; that by
reason
of said injury and wounds, the plaintiff has suffered great
bodily and mental pain, and continues to suffer pain, and is
maimed and crippled for life; that said plaintiff, at the
time of his injury, was of sufficient age and capacity to
exercise reasonable care in his own behalf, and that his
parents were not without fault in permitting him to go abroad
on the streets of said city unattended; that while said pile
of dirt upon which plaintiff so stepped, and which gave way
with him as stated, was apparent, and was an obstruction on
said street, and in fact dangerous by reason of its liability
to cause persons to stumble over the same, or of giving way,
and thereby throwing persons down, still such danger was not
so apparent as that it would be reasonably foreseen by a boy
of the age, experience, and capacity of the plaintiff under
the circumstances in which he was placed at the time he so
stepped on said pile, and said danger was not in fact then
and there apparent to plaintiff, and the plaintiff, in so
running along said street, and stepping on said pile of dirt,
which so gave way with him, and caused him to fall and slide
under said moving train, was in the exercise of ordinary care
considering his age, intelligence and the other facts herein
found.
"We
further find that the length of time said defendant allowed
said street to remain obstructed by said pile of dirt, and
said holes as herein found, was an unreasonable length of
time.
"If
upon the foregoing facts the court is of the opinion that the
law is with the plaintiff, then we find for the plaintiff,
and assess his damages at $ 3,500.
"If,
however, the court is of the opinion that the law is with the
defendant, then we find for the defendant."
