Trust Co. of Chicago v. New York Cent. R. Co.

• Decision Date: 26 May 1936
• Docket Number: Gen. No. 38356.
• Parties: TRUST CO. OF CHICAGO v. NEW YORK CENT. R. CO.
• Court: United States Appellate Court of Illinois

285 Ill.App. 482

2 N.E.2d 362

TRUST CO. OF CHICAGO

v.NEW YORK CENT. R. CO.

Gen. No. 38356.

Appellate Court of Illinois, First District, Second Division.

May 26, 1936.

Appeal from Superior Court, Cook County; Charles A. Williams, Judge.

Action by the Trust Company of Chicago, guardian of the estate of Charles Brokovich, a minor, against the New York Central Railroad Company. From the judgment, the plaintiff appeals.

Reversed and remanded.

Lloyd T. Bailey, of Chicago, for appellant.

Sidney C. Murray, Marvin A. Jersild, and Harold E. Christensen, all of Chicago, for appellee.

FRIEND, Justice.

In an action brought to recover damages for personal injuries suffered by plaintiff's minor, the trial court, upon the conclusion of plaintiff's evidence, peremptorily instructed the jury to return a verdict finding defendant not guilty and entered judgment accordingly. Plaintiff appeals.

The essential facts disclose that in the late afternoon of May 1, 1933, Charles Brokovich, then fourteen years of age, proceeded to defendant's railroad station located along the tracks between 92d and 93d streets on South Chicago avenue in Chicago to purchase for his father a monthly railroad ticket for use on defendant's trains. The boy proceeded to the station over a path frequently traveled by the public in the neighborhood, accompanied by anther boy, named Perusich. In so doing, he saved about two blocks walk, but was required to travel over a path along the railroad embankment, cross a railroad bridge carrying the tracks above and over 93d street, proceed in a northerly direction along the right of way, walk diagonally across the Pennsylvania railroad tracks and several eastbound New York Central railroad tracks, all of which were on an elevated embankment, before reaching the train platform. From this platform access to the station proper, where tickets were sold, was secured by means of stairways and a tunnel. After reaching the station, Brokovich purchased and paid for the ticket and then went back up to the station platform through the tunnel and along the stairways, intending, as defendant argues, to return by the same route over which he came. It was raining, and the boys took refuge in the shelter shed on the station platform which was commonlyused by passengers waiting for trains. While there, the shelter house collapsed and blew over upon Brokovich, severely injuring him.

The declaration filed by plaintiff consisted of five counts. The first count charged defendant with a failure in its duty to maintain its platforms and shelters in a reasonably safe condition for plaintiff's minor, who was then using the same lawfully and upon the platform and in the shelter as an invitee of defendant. The second count charged defendant with a failure in its duty to properly maintain its platform and shelter for the protection of plaintiff's minor, who was then a guest and invitee upon the platform of defendant. The third count charged a violation of a like duty on the part of defendant in failing to properly erect, control, and maintain the building and shelter at the station in a safe condition for the use of its guests, passengers, and invitees. The fourth count charged that the defendant invited its guests and passengers and invitees to use and receive the benefits of this shelter shed, and that defendant negligently and carelessly allowed the roof cover and shelter to become old and dilapidated and in a generally dangerous condition. The fifth and last count, which was filed by leave of court at the time of the trial, charged that the defendant maintained the roadbeds and other railroad equipment, including the shelter and station, and that it became the duty of defendant to maintain the same in a reasonably safe condition, but that it failed in this regard and willfully, wantonly, and maliciously maintained the platform and shelter in a wholly dangerous and unsafe condition so that it became old and decayed, and while plaintiff's minor was an invitee and a guest at the station and about the shelter, the roof thereof gave way, crashed and fell to the ground, injuring plaintiff's minor.

It appears from the evidence that Brokovich had gone to defendant's station for the purpose of purchasing a ticket for his father. He described the route by which he arrived at the train platform, testified that he then proceeded to the office where he purchased a ticket, and then came back up the stairway to the platform. “It was raining that day and was kind of windy,” and so the boys stepped into the shelter house. Almost immediately thereafter the structure collapsed and Brokovich was severely injured. He was taken to a hospital, where he remained for about two weeks under the care of defendant's physician, and for several months thereafter he continued to receive medical attention by various physicians.

The principal issue involved is whether defendant owed Brokovich any duty to protect him at the time and place of his injury. Defendant's position is stated in its brief as follows:

“Brokovich was an invitee while he was purchasing the ticket for his father, and he would have remained such invitee, if he had left the station through the means of egress afforded by the defendant, until he was off its premises. But he chose to follow an exit not provided by the defendant in order to save two or three blocks. That means of egress took him to the train platform as to which his implied invitation did not extend. That platform was for persons arriving and leaving on trains. It was not used for the transaction of business such as selling tickets.”

In other words, it is conceded that plaintiff's minor was an invitee on defendant's property at the time he purchased the ticket, and that if he had followed the exit to the street immediately thereafter and had been injured in so doing, defendant would have been liable in damages, but it is argued that when he proceeded to the station platform along the tunnel and up the stairway provided for that purpose for passengers on incoming and outgoing trains, he thereupon immediately became either a licensee or a trespasser, to whom defendant owed no duty except to refrain from inflicting upon him willful or wanton injury. That seems to us to be a rather narrow view of the duty owing to persons who are rightfully present on railroad property and one that cannot be sustained by the current weight of authority. The reason for the presence of plaintiff's minor on the station platform is at best a matter of conjecture. Plaintiff's counsel argues that he evidently intended to return home by the same route over which he came, and defendant's counsel seems willing to have us indulge in that presumption. There is no direct evidence bearing on that question, however, and we think it relatively unimportant. The essential fact is that Brokovich came to the station upon legitimate business in which both he and the defendant had a mutual interest. While there, he had a right to move about the depot and premises within reasonable bounds and was entitled to receive the protection of defendant for his own safety. It is not unusual or unnatural for a lad of fourteen to move about the station house and property of a railroad company under circumstances such as these, and in this instance he traveled along the passage regularly provided for passengers using the station and those who had an implied invitation to use the premises. It has been generally held that depots, grounds, and passenger houses are not strictly private property, but are places where persons may resort without permission for the purpose of transacting business with the company or with the...