63 Ill. App. 309 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
While the maintenance by the defendant of this grade crossing with its twenty-seven railroad tracks was neither unlawful nor negligence, it was a situation existing solely for its purpose and because of its will, which could be removed at its pleasure.
Holding and using the crossing in conjunction with the public, the defendant was bound to not unnecessarily or unlawfully interfere with the public right at this place.
Being under such obligation, the defendant, in violation of law, blocked the highway and compelled those who wished to go over the road to enter upon its grounds, passing around he engine and cars standing upon the crossing, or wait until the defendant removed the obstruction.
That such entry ivas not, under the circumstances, a trespass, is neither disputed nor disputable. Campbell v. Race, 7 Cushing 8; Smith v. Savannah Co., 11 S. E. Rep. 455.
The deceased, having thus lawfully come upon the premises of the defendant, instead of walking between the tracks along the side of the train back to the crossing with her little brother and sister, proceeded southward, over the private grounds of the defendant, and was struck and killed when upon such grounds, at a place variously estimated to be from thirty to ninety feet off the crossing.
It does not appear that upon the space occupied by these twenty-seven tracks, there was anything to distinguish the highway from the yard of the defendant.
Whether a man or a child of thirteen would, from the surroundings, have been aware when thirty feet west of the highway that he or she was out of the road and upon the private grounds of the defendant, it is impossible for us to sayo
If the deceased had not been induced by the defendant to go into its yard, she would, when there, have been a trespasser irrespective of her knowledge.
Whether at the moment she was struck she knew that she was upon the premises of the defendant, there is in the record nothing to show. Nor can we, under the facts of this case, presume that when no more than thirty feet west of California avenue she realized that fact.
The deceased was not, in going upon the premises of the defendant, a trespasser; once thus there, she would not become a trespasser until she had had a reasonable opportunity to go off such premises, and such opportunity she ivould not have without the presentation of reasonable means for learning where the yard ended and the highway began. On all sides was a great open space in which the yard and the highway were, with nothing to show where the roadway ended and the yard began.
As a conclusion of law it can not, therefore, be said that under the circumstances of this case Dora Murphy was a trespasser.
It is for the jury to say whether her relation to the defendant was, when she was struck, that of a licensee or a trespasser, and whether she was in the exercise of such care as is to be expected from prudent persons of her age and intelligence.
The judgment of the Superior Court is reversed and the cause remanded.
