101 Ill. App. 284 | Ill. App. Ct. | 1902
delivered the opinion of the court.'
There is very little dispute as to the facts of this case. The plaintiff may have gone from Wallace street to the railroad yard by way of Fifty-fourth street or stepped on at a place between Fifty-fourth and another street.
While regarding this as immaterial, we are of the opinion that if it were of consequence the evidence is such that the jury might have found that the boys did not go upon the tracks by way of any street.
March 26, 1890, there was created an ordinance of the city of Chicago requiring every railroad corporation to construct on each side of its tracks, and in such place with reference thereto as the. mayor and commissioner of public works shall approve or direct, except where public streets shall intersect or cross the same, substantial walls or fences of such material, design, proportion and height, as shall be determined and approved by the mayor and commissioner of public works.
There was no fence along Wallace street opposite the railroad yards. Fifty-fourth street was, at the time of the accident, a public street opening into Wallace street, and so, by the public records of the city, appears to have been since 1873. It does not appear to have been planked, but there were thereon ten houses, facing north, east of the railroad tracks.
The defendant was not only not required to construct a fence across the entrance of Fifty-fourth into Wallace street, but it does not appear that it would have been permitted by the city so to do.
It is manifest that with an open entrance to the yards by way of Fifty-fourth street, a fence along the remainder of Wallace street would not have prevented the plaintiff or other boys from going upon the defendant’s tracks, or jumping on and off—“flipping”—its moving trains.
The evidence in the court below did not tend to show that the construction of such a fence as was required by the ordinance and ordered by the board of public works would have prevented the accident, and therefore did not show that the injury to the plaintiff was.due to the defendant’s negligence.
The plaintiff, in climbing upon the defendant’s cars, did an unlawful thing (section 17 of act in relation to fencing and operating railroads, approved March 31, 1874); unlawful, although under the statute he could not have been punished therefor.
The defendant below owes to mere trespassers no duty save to refrain from wantonly or willfully injuring them. Barney, by Next Friend, v. The Hannibal and St. Joseph Railway Co., 126 Mo. 372; Moore et ux. v. Pennsylvania Ry. Co., 99 Pa. St. 301; Cooper, Adm’r, v. Overton, 45 L. R. A. 591; Newcomb v. B. P. Dept., 146 Mass. 596.
The plaintiff was then nine and a half years old, and at the least a boy of fair intelligence and discretion. It can hardly be claimed that he did not know that he was doing what he ought not, and was not only forbidden, but dangerous. While neither crime nor misdemeanor can, under the statute, be charged upon a minor under ten years of age, infants are civilly accountable for their torts, and there is no statute prescribing an age at which they are not civilly responsible or can not be trespassers. See Barney v. Railway Company, 126 Mo. 372-383; Cooper v. Overton, 45 L. R. A. 591-597.
The failure to erect a fence along Wallace street was not the proximate cause of the accident. Between this and the injury there intervened the going of the plaintiff upon the railroad tracks; his jumping upon a moving train; jumping off and on again, hanging from the side of the car wdth" his face toward it and letting his foot hang down so that it came in contact with a low switch.
The proximate cause of an accident is that from which, in conformity to well-known laws, the accident naturally resulted. The injury must proceed in an ordinary, natural sequence from the negligence complained of, or a recovery can not be had. Wharton on Negligence, Sec. 97; Cooley on Torts, 73.
The judgment of the Superior Court is affirmed.
