Fitzgerald v. Chicago, Burlington & Quincy Railroad , 114 Ill. App. 118 ( 1904 )

Mr. Justice Ball

delivered the opinion of the court.

The action of the learned trial judge in instructing the jury to find a verdict for the defendant was clearly right.

The plaintiff was guilty of such negligence as bars a recovery. He is shown by his, own evidence to have been familiar with railway tracks,and with the running of cars thereon. He lived near this crossing. He had attended school for three years, and had reached the age of twelve years. He does not claim that he did not know that it was wrong and dangerous to attempt to climb upon a moving freight car. Of his own volition and for his own pleasure he put himself in this place of danger. His statement is, “ the ball flew over on the tracks and I went to get it and I got on the train.” While it is true that the law does not require a child to use the same degree of care as is required of a grown person, he is, nevertheless, bound to use such reasonable care as one of his age, mental capacity and experience is capable of using; and his failure to so do is negligence. In LeBeau v. P., C., C. & St. L. Ry. Co., 69 Ill. App. 557, under similar circumstances we held that a boy ten years and five months of age, of ordinary intelligence, as we must presume from the evidence the plaintiff was, knows that it is dangerous, to attempt to get on a moving freight train. Such is the law in this state, and we cannot depart from it.

Nor is there any negligence shown upon the part of the defendant. The declaration is framed upon the theory that plaintiff was induced to come upon the tracks by the invitation of the watchman of the defendant stationed at that crossing, and that thus being there and ignorant of the danger incurred in attempting to climb upon moving cars, he tried to do so, and was thus injured. Assuming that the watchman in calling plaintiff to the tower and sending him upon errands was acting within the line of his duty (a point we do not decide, and in favor of which wre find no authorities), that fact has no place in the res gestee. The errands had been done and the plaintiff had been playing in a place of safety for twenty minutes to one-half hour before, in following the ball, he came again to the tracks. The evidence shows no negligence upon the part of the defendant which contributed to the happening of this accident.

The trial court did not err in its rulings upon evidence. The judgment of the Superior Court is affirmed.

Affirmed.