Seymour v. Union Stock Yards & Transit Co.

1. Negligence—when recovery cannot be had under doctrine of attractive nuisances. A recovery cannot be had against a railroad company upon the ground that it deposited piles of clay along its tracks adjacent to a street, which attracted children to such clay piles, where the boy who was injured was safe from danger while playing with the clay, but ceased such play when the defendant’s train approached and ran along the bank, touching the cars as they passed, until he slipped under them and was injured, there being no claim that the defendant was negligent in the manner in which the clay was piled. 2. Same—an intervening element which breaks the cause and effect defeats recovery under doctrine of attractive nuisances. An element which intervenes between the allurements of an alleged attractive nuisance and the injury, and which so breaks the .relation of cause and effect as to be, itself, the proximate cause of the injury, defeats a right of recovery under the doctrine of attractive nuisances. 3. Proximate cause-—extent to which question of proximate cause is one of fact for the jury. Whether the negligence charged in the declaration was the proximate cause of the injury sustained is a question of fact for the jury if there is any evidence tending to establish that fact, but whether there is any such evidence is a question of law.

Appeal from "the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Mattie Seymour, a minor, by his next friend, brought an action on the case in the circuit court of Cook county against the Union Stock Yards and Transit Company and the Chicago Junction Railway Company to recover for personal injuries sustained by him on November 9, 1899, immediately south of Forty-ninth street between Wallace street and Union avenue, in the city of Chicago. At the close of the plaintiff’s testimony in the court below the defendants made a motion to exclude from the jury all the evidence offered and received on behalf of the plaintiff and to instruct the jury to find the defendants not guilty. The court sustained the motion and instructed the jury to return a verdict in favor of the defendants. After overruling a motion for a new trial the court entered judgment on the verdict of the jury in favor of the defendants and against the plaintiff for costs. The plaintiff appealed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed. A certificate of importance having been obtained a further appeal has been prosecuted by the plaintiff to this court. Forty-ninth street, in the city of Chicago, runs east and west. It is intersected by Wallace street, Union avenue and Halsted street in the order named, Wallace street being the most easterly of these three streets. At the time Seymour was injured the Union Stock Yards and Transit Company owned a right of way adjoining Forty-ninth street on the south, between Wallace and Halsted streets, on which were laid a number of railroad tracks, the most northerly of these tracks being six or seven feet south of Forty-ninth street and running parallel therewith. These tracks were operated under a lease by the Chicago Junction Railway Company, and a large number of trains passed over the tracks each day. There was no fence, wall or other line of demarkation between Forty-ninth street and the right of way. About two months prior to November 9, 1899, large quantities of clay had been brought to this place on flat-cars and left on the north side of the railroad tracks. The clay had been thrown off the flat-cars in piles, which formed an uneven, continuous bank, extending from Wallace street to Halsted street. These piles varied from two to four feet in height, and on the south side sloped down to the railroad tracks. On the north side, as the evidence tends to show, they sloped down into and upon Forty-ninth street. The vicinity was thickly populated, and a great many children lived in the neighborhood of Forty-ninth street and Union avenue. These children had been accustomed to play on vacant lots on the north side of Forty-ninth street, but as soon as the clay had been left along the track they commenced to play upon the bank or piles of clay, and continued so to do until Seymour was injured. They moulded the clay with their hands into cakes, pies, marbles, and the like, and baked these in fires which they built beside a large rock which had been left upon the north side of the clay bank. They also stood upon the piles and watched the trains pass, or ran along the top of the bank with the train while it was passing. On the date above mentioned, at about ten o’clock in the morning, Mattie Seymour was playing upon the piles of clay. At that time there were no other children there. A freight train passed over the most northerly track, and Seymour ran upon the bank of clay alongside the cars, touching them with his hands. While thus engaged he slipped and fell down the side or slope of the pile of clay to the track and under the wheels of the passing cars and was seriously injured. It was alleged in the declaration, and is urged in this court, that the bank of clay constituted an attraction for children; that the neighborhood was thickly inhabited with small children, and that large numbers of children were attracted to, and had been in the habit of using, the bank of clay as a playground; that said premises were dangerous and unsafe for small children to be upon or about, and that the defendants were guilty of negligence in'allowing and permitting the attractive pile of clay to remain there for a period of several weeks prior to the accident.