ENGEL v. CHICAGO & NW. TRANSPORTATION CO.
186 Ill. App.3d 522 (1989)
Appellate Court of Illinois — First District (4th Division).
Opinion filed February 16, 1989.
The Park District failed to repair this large opening in the fence, despite its admitted knowledge of its existence and dangerous condition. Internal memoranda produced at trial established that the Park District considered the unrepaired fence as a safety hazard and that its personnel knew that children used the opening to gain access to the tracks. Work orders to repair the fence were produced, but for unexplained reasons, the opening was not repaired. At trial, one of the Park District's witnesses claimed that repairs had been made, but no substantiation of that claim was produced, and, in fact, the opposite conclusion was proved by other testimony and evidence.
Testimony at trial also established that the practice of going up to the tracks through the opening in the fence was so prevalent at Hermosa Park that Park District employees frequently engaged in this conduct in plain view of the children in the park. In addition, park employees were aware that children took rides on passing trains. The practice of grabbing a short ride on slow-moving freight trains is called "flipping" the trains.
The engineer for the Park District testified that the open fence separating the park from the tracks created a "very dangerous" condition, one that would undoubtedly allow a child to get hurt if the condition existed for a long enough period of time. The District's safety director also agreed that the condition presented a very dangerous situation.One of the Park District's employees testified that he had heard of children flipping the trains at Hermosa Park and may have actually seen this happen, but did not recall warning the children not to do this. Another witness, a child who frequently went to the park, testified that for years prior to the accident he had gone through the opening in the fence and boarded moving trains, as had others. A railroad employee testified that he had seen children trying to jump on and off almost every train that passed Hermosa Park.
Railroad employees also jumped on and off moving trains, as part of their job, and the children in the park observed this practice. The railroad would at times run brake tests at the park by stopping the trains and then restarting them while some employees were off the train. Once the railroad crew members who were off the train were satisfied that the trains were running properly, they would mount the moving train by jumping on either the side ladder or stairs of the moving railroad trains. Engel testified that he had observed the railroad crew do this without incident seven or eight times prior to his accident.
The Park District's repair department had received work orders on eight occasions to fix the fence but these orders had never been approved and the work was never done. The orders started in March of 1980, and the last one was dated in August 1981, just six weeks before Engel's leg was crushed beneath a train.
At trial the Park District attempted to show that the fence had been repaired. Testimony on that point was severely impeached, however, and there was substantial evidence to the contrary. Moreover, two sets of documents offered by the Park District appeared to be falsified. The first group of documents purported to be memos from the director of safety regarding repair of the fence. The director of safety whose name appeared on the memos, however, did not even work for the Park District at the time he allegedly wrote the memos.
1. As the Park District points out, there is a distinction between punishment for wilful and wanton acts or omissions in relation to the tort itself and punishment for perjury during trial. The former is a proper base for imposition of punitive damages by a jury, while perjury may be separately punished by contempt or a criminal proceeding. (Amerco Field Office v. Onoforio (1974), 22 Ill.App.3d 989, 317 N.E.2d 596.) Since the punitive damages award has been vacated, however, we need not determine whether it would have been a proper award on any basis.