Atchison, Topeka & Santa Fe Railroad v. Elder

Per Curiam: This is an appeal from a judgment of the Appellate Court, affirming a judgment of the circuit court of Cook county, in favor of Lester T. Elder, a minor, by Charles Elder, his next friend, against the Atchison, Topeka and Santa Fe Bailroad Company, for $2500. It appears that Charles Elder, and Mary, his wife, with their small boy, about four years old, Lester T. Elder, became passengers on appellee’s road on the 28th day of May, 1892, from Streator to Chicago. The train, when about a half or three-quarters of a mile south of Lemont, struck a cow and calf on the track and was thrown from the track. Mary Elder, the mother of plaintiff, was somewhat injured, and upon her arrival in Chicago an agent of the railroad company called upon her and her husband and settled for the injuries she had received. A short time after-wards it was discovered that the boy was ruptured, and negotiations were then commenced between the father of the child and the company, with a view to a settlement for the injury the child had received. The negotiations resulted in an agreement that §250 should be paid in settlement for the injury received by the child, but as the plaintiff was a minor and not capable of making a settlement, and as the father was without authority, it was arranged that a friendly suit be brought in the name of the minor, by his father, as next friend, and a judgment should be entered for the amount agreed upon. A declaration was filed, the appearance of defendant entered, and the parties appeared before the court, waived a jury, and the court, without hearing any evidence, entered a judgment in the cause in favor of the plaintiff for §250. Eleven days after the judgment was entered, but during the same term of court, the plaintiff appeared in court by attorney, and offered to refund the §250 which had been paid, and entered a motion to vacate the judgment. This motion was supported by affidavits, and the appellant also filed affidavits in opposition to the motion. Finally it was stipulated by the parties that evidence should be heard on the motion before Judge Tuthill, and the court should, when the evidence was all in, pass upon such motion. If denied, an order should be entered overruling the motion and confirming the judgment and satisfaction, and if granted, the court should make a finding of damages, jury being waived. Benefit of all objections and exceptions as to motion, and the finding and judgment, if any, is expressly reserved, plaintiff to file an amended declaration if motion is granted. An amended declaration was filed, the court heard the evidence, and entered an order vacating the judgment and rendered a judgment in favor "of the plaintiff for $2500. In the amended declaration it was, in substance, alleged % Second count—-That plaintiff’s injuries were caused by defendant running its said train and ears at a negligent and dangerous rate of speed, and while so running, did, by reason of such reckless rate of speed, run into a cow and calf near the village of Lemont, thereby wrecking said train and seriously and permanently injuring the plaintiff. Third count—The defendant’s track had been in use for more than six months, and it was its duty to fence the same from Streator to Chicago, except at public crossings and within the limits of cities and incorporated towns and villages laid off into lots and blocks, and also to erect and maintain at all road crossings sufficient cattle-guards; that it had failed to-fence its track and to erect cattle-guards “at and near and south of the village of Lemont;” that for want and lack of' said fences and cattle-guards “a certain cow and calf strayed onto said defendant’s railway at a point near to said village off Lemont, and south thereof, and not within the incorporated limits thereof, and not at any public or highway crossing of said railwaythat while said cow and calf were on the track, defendant’s train, running at an excessive and dangerous rate of speed, struck them and became wrecked, and plaintiff was ruptured, crippled, etc. ' Fourth count—That defendant failed to erect cattle-guards- and fences on its railway “for some distance south of the village and station of Lemont, * * * where cattle and other-stock were fed, grazed and allowed to run at large, ” and where fences and cattle-guards were necessary to prevent such cattle-getting on said track; that at a point on its railway south of the village of Lemont, and near the same, a certain cow and calf, “by reason of such failure, came on the track, and the-train in which plaintiff was riding collided with the same and he was thereby injured,” etc. It is- first contended that no cause of action was shown by the allegations and proof. If the injury resulted from the running of the defendant’s train at a dangerous rate of speed, as alleged in the second count of the declaration, the plaintiff was entitled to recover. If, on the other hand, the defendant failed to fence its track and erect suitable cattle-guards outside of the limits of the village of Lemont, at or near where the accident occurred, and in consequence of such failure the cow went upon the defendant’s track and was struck by the-train producing the injury, as charged in the third and fourth counts of the declaration, a recovery might be had. Whether the evidence was sufficient to authorize a recovery was a question of fact which was proper for the consideration of the Appellate Court but does not arise here, as we are not at liberty, under the statute, to review controverted questions of fact. There was evidence, however, tending to prove the allegations of the declaration, and that was sufficient. A number of witnesses testify that the train was running at a high and dangerous rate of speed,—from fifty to sixty miles an hour,— prior to and at the time the accident occurred, and on the other branch of the case there was ample evidence to show that the road was not fenced for some distance south of the village of Lemont, nor were there cattle-guards sufficient to keep cattle off the track. It is true that the cow went on the track near the depot at Lemont, and ran down the track to the place where the accident occurred; but had the road been fenced, and a suitable cattle-guard placed at the south end of the village, the cow could not have followed the track beyond the limits of the incorporated village, and the accident would not have occurred. We do not propose to review the evidence or determine its sufficiency to support the judgment,—we merely refer to it for the purpose of showing that there was ample evidence for the consideration of the court tending to establish the averments of the declaration. ■ It is next contended that the defendant was not bound to fence its track where the stock entered. It is true the railroad company was not required to fence its track within the incorporated limits of Lemont, and it is also true that the cow entered upon the defendant’s track near the depot, within such incorporated limits. . But at the southern limits of the village, as appears from the evidence, the cattle-guard was insufficient to prevent stock from passing down the track, and from that point to the place where the accident occurred the track was not fenced, so that there was nothing to prevent stock from going upon the track where defendant was bound to fence, and the mere fact that the cow first entered upon the track within the incorporated limits of Lemont does not relieve the defendant of the liability arising from the failure to fence its track, imposed by the statute. . The defendant submitted nine propositions to be held as law. The court held the first, second and fifth, and refused the others. The third proposition in substance declared that the mere failure of defendant to erect and maintain fences and cattle-guards will not, of itself, make the defendant liable. If the failure to perform the duty enjoined by the statute did not contribute to the injury, of course the defendant could not be held liable, and as an abstract proposition it might have been held as law; but as applied to the facts of this case it was not error to refuse it, for the reason that the evidence tended to show that the injury grew out of the failure of defendant to erect and maintain suitable cattle-guards and fences, as required by statute. The fourth proposition in substance declared that the statute did not require the defendant to have cattle-guards and fences upon and along the portions of its tracks within its station grounds where its station buildings and other structures used in the loading and unloading of persons and live stock were. While there is no particular objection to the rule announced, yet it had no proper place in this case. It was immaterial in this ease whether defendant was bound to fence its station grounds or not. The real question was, whether the cow reached the point on defendant’s track where she was struck by the train, through the failure of the defendant to erect suitable cattle-guards and fences outside of the limits of Lemont, as required by statute. The sixth and seventh propositions were properly refused. The statute has named the places where a railroad company is not required to fence its track, and those enumerated in the propositions do not fall within the exception; nor were they stations or depot grounds, and as such exempt from fencing, as held in Chicago, Burlington and Quincy Railroad Co. v. Hans, 111 Ill.114. The eighth and ninth propositions were properly refused for reasons heretofore given. It is next claimed that the court erred in vacating the judgment. But little need be said on this point. It will be observed that the motion to vacate the judgment was made at the same term at which it was entered, and the motion was continued, by order of the court, from time to time, until it was finally decided and the judgment vacated, so that the order or judgment vacating the judgment stands upon the same footing as if it had been entered during the term at which the judgment was rendered. During the term at which a judgment is rendered, the court having control over the record, for good cause shown may amend the judgment or set it aside. (Becker v. Sauter, 89 Ill. 596; Cook v. Wood, 24 id. 295; Stahl v. Webster, 11 id. 514.) Here the court had rendered a judgment without hearing the evidence or fully understanding the merits of the case, in a case where the rights of an infant were involved, the attorney appearing for and representing the infant having been employed at the instance of the opposing party. When these and other facts of a kindred character were brought to the attention of the court on the motion to vacate the judgment, the court, in the exercise of a sound discretion, could do no less than vacate the judgment which had been improvidently entered, and allow the cause of the minor plaintiff to be fully and fairly presented to the court. The judgment of the Appellate Court will be affirmed. Judgment affirmed.