Hayes v. Michigan Central Railroad Company

A. D. Rich, for plaintiff in error.

Ashley Pond, for defendant in error.

This action was brought by the plaintiff in error to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in error. After the evidence in the cause had been closed, the court directed the jury to return a verdict for the defendant. A bill of exceptions to that ruling embodies all the circumstances material to the case, and presents the question, upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury.

The defendant, in running its trains into Chicago, used the tracks of the Illinois Central Railroad Company, under an arrangement between them; and no question is made but that the defendant is to be treated, for the purposes of this case, as the owner as well as occupier of the tracks. The tracks in question are situated for a considerable distance in Chicago, including the place where the injury complained of was received, on the lake shore. They were built in fact, at first, in the water on piles; a breakwater constructed in the lake protecting them from winds and waves, and on the west or land side the space being filled in with earth, a width of about 280 feet, to Michigan avenue, running parallel with the railroad. This space between Michigan avenue and the railroad tracks is public ground, called Lake park, on the south end of which is Park row, a street perpendicular to Michigan avenue, and leading to and across the railroad tracks to be water's edge. Numerous streets, from Twelfth street north to Randolph street, intersect Michigan avenue at right angles, about 400 feet apart, and open upon the park, but do not cross it. Nothing divides Michigan avenue from the park, and the two together form one open space to the railroad. The right of way for these tracks was granted to the company by the city of Chicago over public grounds by an ordinance of the common council, dated June 14, 1852, the sixth section of which is as follows:

'Sec. 6. The said company shall erect and maintain on the western or inner line of the ground pointed out for its main track on the lake shore, as the same is hereinbefore defined, such suitable walls, fences, or other sufficient works as will prevent animals from straying upon or obstructing its tracks, and secure persons and property from danger; said structure to be of suitable materials and sightly appearance, and of such height as the common council may direct, and no change therein shall be made except by mutual consent: provided, however, that the company shall construct such suitable gates, at proper places at the ends of the streets which are now or may hereafter be laid out, as may be required by the common council, to afford safe access to the lake; and provided, also, that in case of the construction of an outside harbor, streets may be laid out to approach the same, in the manner provided by law, in which case the common council may regulate the speed of locomotives and trains across them.'

It was also provided in the ordinance that it should be accepted by the railroad company within 90 days from its passage, and that thereupon a contract under seal should be formally executed on both parts, embodying the provisions of the ordinance, and stipulating that the permission, rights, and privileges thereby conferred upon the company should depend upon their performance of its requirements. This contract was duly executed and delivered March 28, 1853.

The work of filling in the open space between the railroad tracks and the natural shore line was done gradually,-more rapidly after the great fire of October 9, 1871, when the space was used for the deposit of the debris and ruins of buildings,-and the work was completed substantially in the winter of 1877-78. In the mean time several railroad tracks had been constructed by the railroad company on its right of way, used by itself and four other companies for five years prior to the time of the injury complained of, and trains and locomotives were passing very frequently, almost constantly. The railroad company had also partially filled with stones and earth the space east of its tracks, to the breakwater; sufficiently so in some places to enable people to get out to it. This they were accustomed to do for the purpose of fishing and other amusements, crossing the tracks for that purpose. At one point there was a roadway across the park and the tracks, used by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great numbers of people crossed to the breakwater; from two streets the public were also accustomed to cross over the tracks from the park to ferry-boats. From Park row, at the south end of the park, running north a short distance, the railroad company, in 1872, had erected on the west line of its right of way a five-board fence, the north end of which, at the time of the injury to the plaintiff, was broken down. The rest of it was in good order. The park was public ground, free to all, and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open-air concerts.

The plaintiff was a boy between eight and nine years of age, bright and well-grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake park. Across the street from where they lived was a vacant lot where children in the neighborhood frequently played. On Sunday afternoon, March 17, 1878, St. Patrick's day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the permission of his father, to play. While playing there a procession celebrating the day passed by, and the plaintiff, with other boys, but without the observation of his brother, followed the procession to Michigen avenue at Twelfth street, just south of Lake park. He and his companions then rcturned north to the park, in which they stopped to play. A witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north; turning round towards it he saw the plaintiff on the tracks south of him, but north of the end of the fence; he also saw a colored boy on the ladder on the side of one of the cars of the train, motioning as if he wanted the plaintiff to come along. The plaintiff started to run north beside the train, and as he did so turned and fell, one or more wheels of the car passing over his arm. There were four tracks at this point, and the train was on the third track from the park. The plaintiff had his hands reached out towards the car, as he ran, as if he was reaching after it, and seemed to the witness to be drawn around by the draught of the train, and fall on his back. Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit.

Mr. A.D. Rich, Mr. George C. Fry, and Mr. J. W. Merriam for plaintiff in error submitted on their brief.

[Argument of Counsel from pages 232-234 intentionally omitted]

MATTHEWS, J.