LeBeau v. Pittsburg, C., C. & St. L. Ry. Co. ( 1897 )

Mr. Justice Waterman

delivered the opinion ob' the Court.

It is urged that appellee ivas negligent in not warning the plaintiff to keep away from this crossing.

Such warning, unless enforced by physical force, it is not likely would have been of any service, nor does it appear that appellee had the right to warn or keep boys away from this place. Appellant was injured upon a public street in which he had a right to be. A warning to boys to keep away from a place into which they know they have a right to go, is not usually sufficient to induce them to keep away, especially when the warning is by one not clothed with authority.

Mo case has been cited in which it has been held to be the duty of a railroad to keep or warn boys off a public street used by it.

There was no evidence of negligence upon the part of appellee, and hence no question for submission to a jury. Grand Trunk Railroad Co. v. Ives, 144 U. S. 408-417; Werk v. Illinois Steel Co., 154 Ill. 302-308.

Doubtless, a moving train does offer a temptation to small boys, as does every moving vehicle; so, likewise, the windows of an untenanted house often induce the throwing of stones thereat; while a farmer’s orchard surrounded by a rail fence is a strong temptation.

From, either of these causes may arise an injury to a young child, for which the owner of the carriage, bouse or orchard may be sued. The question then arises: Wherein was he negligent ? Should he have kept watch and warned boys not to hitch or jump on to his car. Should he have covered the windows of his house, or removed the apples from his orchard ?

It is apparent also, that the plaintiff was injured as a result of his failing to exercise such care as is to be expected from one of his age and intelligence.

Jumping from the ground upon a moving freight train is dangerous, all men and all ordinarily intelligent boys ten years of age know it to be so. C., R. I. & P. Ry. Co. v. Eininger, 114 Ill. 79.

It was not the duty of appellee to warn the plaintiff off the street wherein he was injured. C. & A. R. R. Co. v. McLaughlin, 47 Ill. 265; C., B. & Q. R. R. Co. v. Stumps, 55 Ill. 367; Same v. Same, 69 Ill. 409; C., R. I. & P. R. R. Co. v. Berg, 57 Ill. App. 521.

The judgment of the Superior Court is affirmed.

Judge Shepard did not participate in the consideration of, or judgment rendered in, this cause.