Chicago & Alton Railroad v. Mayer , 112 Ill. App. 149 ( 1904 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an action by the administrator of Dora Murphy, 'deceased, to recover for her death caused by alleged negligence of appellant. The case has been twice before this court on appeal, and the facts may be found sufficiently stated in 63 Ill. App. 309. At the last trial the jury returned a verdict in favor of appellee for $5,000, which was reduced by remittitur to $3,500, for which judgment was entered.

It is contended in behalf of appellant that there was a new element introduced not present in the first trial, which it is claimed tends to show that the deceased was a trespasser as a matter of law. This new element was said to be found in the proof that California avenue was planked to the width of forty-eight feet; that the deceased, a girl thirteen years of age, was thoroughly familiar with the locality, and therefore what was said in the former opinion with reference to the “ great open space in which the yard and the highway were, with nothing to show where the roadway ended and the yard began ” and that deceased could not be held a trespasser as a matter of law, is not applicable to the evidence as now presented. We are unable to agree with appellant’s counsel. The morning was excessively cold, and the ground somewhat covered by snow. The deceased found the street crossing blocked by appellant’s trains. It is said in appellant’s. brief, “ It cannot be denied that the testimony as to a blockade is very conflicting and uncertain.” It must be deemed to have been settled by the jury, and there is certainly evidence warranting the finding. It is not denied that if a street crossing be blockaded for an unreasonable time, a person having urgent reason to cross may depart from the street and go around the blockade on private grounds without thereby becoming a trespasser. Upon an exceedingly cold morning when the alternative is to stand and wait at a crossing with the ternperature below zero, the reasons for going around a blockade, if possible, would probably become urgent very soon. The deceased may have known that she was in the yards, but it does not necessarily follow that she is to be regarded as a trespasser there at the time of the injury.

It seems to be contended that the deceased had passed around the obstruction, and when injured was pursuing a course parallel with the street and eighty-one feet from it; in other words, going straight across the tracks instead of going back to the street crossing between or among the tracks. It cannot be said that in this the deceased may not have been exercising ordinary care, or might not reasonably conclude that it was more prudent to go over the tracks in the most direct way possible. Doing so would not make her a trespasser in fact or law, nor does such conduct under the circumstances necessarily in law constitute negligence. We find no material difference in the evidence from that presented at the first trial, and the views expressed by this court in the former decision must be regarded as controlling upon the questions there reviewed. If the girl was not necessarily in law a trespasser under the facts as found by the jury, we do not regard it erroneous to introduce evidence tending to show the conditions under which the accident occurred, including the absence of a lookout on the flat cars by which the deceased was struck. It was for the jury to determine the questions of negligence as between appellant and the deceased. This they have done and we find no sufficient ground of interference with their finding. We are not prepared to hold as a matter off law that under the circumstances in evidence here appellant had no reason for apprehending that persons might be on its right of way at or near this crossing in view of the alleged blockade, and that, hence, precautions, otherwise unnecessary, might not have become a duty. See I. C. R. R. Co. v. Noble, 142 Ill. 578-586. We are of the opinion, the instruction, the refusal of which is complained of, was properly denied. The position of the deceased was, under the evidence, different from that of a mere implied licensee, whom appellant might have owed no duty to protect or provide with safeguards. See I. C. R. R. Co. v. O’Connor, 189 Ill. 559-565.

We are unable to say that the judgment is excessive, nor do we find error in the record. The judgment must be affirmed. Affirmed.

Mr. Justice Stein having presided at the hearing of this case in the trial court, did not participate in the foregoing opinion.