Union Ry. Co. v. Williams

• Decision Date: 02 April 1951
• Docket Number: No. 11150.,11150.
• Citation: 187 F.2d 489
• Parties: UNION RY. CO. v. WILLIAMS.
• Court: U.S. Court of Appeals — Sixth Circuit

187 F.2d 489 (1951)

UNION RY. CO. v. WILLIAMS.

No. 11150.

United States Court of Appeals Sixth Circuit.

January 22, 1951.

Rehearing Denied April 2, 1951.

Cooper Turner, Jr., Memphis, Tenn. (Cooper Turner, Jr., on the brief; Canada, Russell & Turner, Memphis, Tenn., of counsel), for appellant.

John D. Martin, Jr., Memphis, Tenn. (John D. Martin, Jr., S. Shepherd Tate, Memphis, Tenn., on the brief), for appellee.

Before HICKS, Chief Judge, and SIMONS and MILLER, Circuit Judges.

HICKS, Chief Judge.

Action by appellee, Jesse Williams, to recover damages of appellant, Union Railway Company, for personal injuries.

On July 28, 1938, appellee, a Negro boy attempted to "hop" a train pulled by one of appellant's engines. He caught hold of a rung of the ladder on a tank car and put one foot in a lower rung, when his foot slipped, his head hit some part of the car and he was thrown under the train and lost both legs.

The jury returned a verdict in his favor for $20,000, upon which judgment was entered; hence this appeal.

We consider (1) the motion of appellant for a directed verdict made at the close of the evidence; and (2) the motion for judgment notwithstanding the verdict.

The gravamen of the complaint relating to the accident was, in substance, that appellant negligently, carelessly, regularly and by custom permitted boys of tender age to board its moving trains without objection, although it knew that such practice was extremely dangerous, and that the proximate cause of appellee's injury was appellant's failure to exercise reasonable care for the safety and protection of appellee and other boys of like immature age.

There is no material dispute relating to the facts of the accident.

Appellant operated a terminal railroad through and around the populous city of Memphis. Its trains carried no passengers or passenger cars. Its sole operation upon its main line and switches was to serve many industrial enterprises along its route. Its servants invited no one to ride its trains.

Appellee, aged eleven years and four months, lived with his mother in the Hollywood section of the city and about five or six blocks from the railroad. He attended the Hyde Park school, located hard by the railroad tracks. He was in the fifth grade and would have been in the sixth had it not been for an illness which kept him out of school for a year. He was of fair average in his classes, not the smartest, not the dumbest. After school closed in the spring of 1938, he busied himself with cutting the lawns of his neighbors for a small compensation.

The railroad ran through the Hollywood section westwardly to and beyond Washington Park, a park for negroes, and in which there was a swimming pool. On the morning of the accident, appellee, along with thirty or forty other Negro boys, caught the train near the school and rode on it undisturbed about five miles to the park. There they enjoyed the swimming pool until the return trip of the train running eastwardly. The train was backing with the engine in front and the tender or tank in front of the engine. It was a daily habit and custom for boys in large numbers to mount the train at various points along its railroad.

Upon the motion for peremptory instructions we must take that view of the evidence favorable to appellee. He testified that after he, with a number of other boys, left the swimming pool they congregated at a convenient spot by the track near the Marble Street crossing. It was their purpose to catch the train for the return trip. Before the accident happened appellee, during the summer, made eight or ten trips to the park. The train itself consisted of the engine and tender, a box car next to the engine, and five tank cars. Appellee intended to catch the box car but another boy went ahead of him and he then attempted to catch the second tank car and was injured as indicated above. The train was running slowly, i. e., somewhere between a walking or trotting pace, and eight or ten miles an hour.

It is clear that appellee was a trespasser and if he had been of mature age appellant would have owed him only the duty of refraining from intentionally injuring him. Illinois Cent. Railroad Co. v. Meacham, 91 Tenn. 428, 19 S.W. 232. Simply stated, he would have been an intruder upon a switching train which carried no passengers and appellant would not have been liable for any inadvertence or negligence of its employees. But, as pointed out, appellee was only between eleven and twelve years of age and it must be expected that children of that age will act upon childish impulses and instincts. They are bound to use only such care as is ordinarily exercised by children of like age and intelligence. Townsley v. Yellow Cab Co., 145 Tenn. 91, 92, 94, 237 S.W. 58; Marion County v. Cantrell, 166 Tenn. 358, 359, 362, 61 S.W.2d 477; Southern Ry. Co. v. Whaley, 170 Tenn. 668, 677, 98 S.W.2d 1061; Union Pac. Ry. Co. v. McDonald, 152 U.S. 262, 277, 14 S.Ct. 619, 38 L.Ed. 434. Whether appellee was guilty of such contributory negligence as to bar his recovery by attempting to "hop" the train, was peculiarly a question for the jury, taking into consideration his age, experience and ability to discern and appreciate danger. Wells v. McNutt, 136 Tenn. 274, 275, 189 S.W. 365; Atkins v. Smith, 9 Tenn.App. 212, 217. It is true that he had had considerable previous experience, that he knew of the most convenient and available spots at which to catch the train, and that he further knew that if he told his mother that he was catching trains he would be punished. However, the probative effect of this testimony is not for us to decide. Camden Interstate Ry. Co. v. Broom, 6 Cir., 139 F. 595, 598. Such circumstances and others not here mentioned were not conclusive as against appellee. They were only relevant to appellant's defense that notwithstanding appellee's age he was guilty of contributory negligence. Wells v. McNutt, supra, 136 Tenn. at page 277, 189 S.W. 365; Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 465, 32 S.W. 460, 30 L. R.A. 82. We conclude that upon this review we do not reach the question of contributory negligence.

We come now to the consideration of the question of proximate cause.

There is no room here for the "last clear chance" doctrine exhaustively considered in Todd v. Cincinnati N. O. & T. P. Railroad Co., 135 Tenn. 92, 185 S.W. 62, L.R.A.1916E, 555 and Tenn. Cent. Ry. Co. v. Ledbetter, 159 Tenn. 404, 19 S.W.2d 258. At the time of the accident the crew was busy with its various duties but at least one of them, Ralph Sheffield, riding on the front or leading end of the tender, saw the group of boys approaching the track. Whether they were approaching or standing by the track, as testified to by appellee, is not material on this phase because Sheffield saw appellee "miss the cut of cars" and immediately gave the alarm. After appellee had subjected himself to peril by hopping the tank car, his injury was inevitable. Nothing that appellant's servants could have then done would have saved him. There was no conscious misconduct on the part of the servants of appellant after appellee had exposed himself to danger.

But appellee goes beyond this and contends that when appellant's servants saw appellee and his companions standing by the track or approaching it they should have anticipated that appellee intended to catch the train and should have prevented him from so doing by protective measures. Appellee relies heavily upon Burke v. Ellis, 105 Tenn. 702, 58 S.W. 855. See also Townsley v. Yellow Cab Co., supra, 145 Tenn. at page 94, 237 S.W. 58.

There is nothing difficult in Burke v. Ellis. In that case the court said that it was negligence per se to permit a child six or seven years of age to climb upon and ride a car loaded with loose earth that was liable to slip...