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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.
In La Salle National Bank v. City of Chicago (1985), 132 Ill.App.3d 607, 478 N.E.2d 417, the nine-year-old plaintiff was severely injured after he hopped on a slow-moving freight train. The court affirmed a jury verdict in his favor despite the defendant city's assertion that plaintiff should have known that hopping a moving train was dangerous as a matter of law. The city owned land adjacent to the railroad tracks and had built and maintained a fence thereon. Children gained access to the tracks through a large hole in it, a situation of which the city had knowledge. Following Kahn, the court found that the elements of liability had been satisfied. The city owed a duty, which it had breached, and the fact that the plaintiff was found to be 18% at fault for his injury did not establish a specific appreciation of
risk in jumping moving trains. We find this case persuasive, notwithstanding the Park District's suggestion that it was incorrectly decided. Further support for Engel's position is found in several other cases involving railroad injuries. In American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill.App.2d 406, 202 N.E.2d 79, aff'd (1966), 35 Ill.2d 145, 219 N.E.2d 529, a 13-year-old boy climbed a slow-moving train on his way to a playground which abutted the tracks. As in the instant case, children often cut through the park to the tracks. The boy sustained a traumatic amputation of his leg as he alighted from the train and fell beneath it. Both the appellate and supreme courts affirmed the jury's verdict for the plaintiff, albeit on different theories of liability. The supreme court based its affirmance on defendant's negligent operation of the train, but specifically commented that the question of the boy's contributory negligence was properly left to the jury, who was to evaluate the age, capacity, intelligence, and experience of the child. 35 Ill.2d at 153, 219 N.E.2d at 533. In Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1969), 42 Ill.2d 103, 245 N.E.2d 762, evidence established that children customarily "flipped" rides on the slow-moving freight trains and that the railroad that owned and maintained the premises knew of this fact. In affirming the jury's verdict in favor of the 14-year-old plaintiff, the supreme court held that the issue of a child's contributory negligence when climbing a slowly moving train is a question of fact. By necessary implication, the verdict for the plaintiff meant that he did not truly appreciate the risk of injury. See also Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill.App.3d 1091, 415 N.E.2d 615 (appellate court reversed the trial court's entry of summary judgment on behalf of the defendants, holding that jury should have decided whether 13-year-old boy who was injured after attempting to board a slow-moving train was contributorily negligent); but cf. LeBeau v. The Pittsburg, C., C. & St. L. Ry. Co. (1897), 69 Ill.App. 557, 560 (finding that jumping from a moving freight train is dangerous and that all men and ordinarily intelligent 10-year-old boys know it to be so). • 4 We find a sufficient basis in Illinois law to uphold the submission of the instant case to the jury. Moreover, we disagree with the Park District's contention that the above-cited train-flipping cases are either distinguishable or inapposite. Although the Park District labels the train-flipping "line of cases" as an exception to the general principles of landowner liability, we do not agree. The main reason the case
cannot be determined as a matter of law is that the "obviousness" of the danger is not such that no minds could reasonably differ. The policy determination that most children are presumed to know the risks of injury inherent in certain types of activities, such as playing with fire or playing in bodies of water, does not per se extend to the train-flipping cases. Under different facts than are present in this case, however, a judge could find that the danger was obvious to a plaintiff or that the landowner was unaware of the condition and find no duty existed as a matter of law. The duty in this case was repairing the fence to prevent access to the trains from the park. The Park District admitted its awareness of the children's use of the hole in the fence to go up to the tracks and its belief that the situation was dangerous. We find that the evidence amply supports the jury's conclusion that the Park District breached its duty to repair the fence and that Engel's injuries were proximately caused by that breach. Accordingly, we affirm the jury's verdict and award of compensatory damages. II
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.
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