409 F.2d 6 (6th Cir. 1969), 18738, Garner v. Missouri-Pacific Lines

Docket Nº:18738.
Citation:409 F.2d 6
Party Name:Reginald Leon GARNER, a minor by his mother and next friend, Bossie Mae Garner, and Bossie Mae Garner, Individually, Plaintiffs-Appellants, v. MISSOURI-PACIFIC LINES, Defendant-Appellee.
Case Date:April 10, 1969
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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409 F.2d 6 (6th Cir. 1969)

Reginald Leon GARNER, a minor by his mother and next friend, Bossie Mae Garner, and Bossie Mae Garner, Individually, Plaintiffs-Appellants,

v.

MISSOURI-PACIFIC LINES, Defendant-Appellee.

No. 18738.

United States Court of Appeals, Sixth Circuit.

April 10, 1969

John R. McCarroll, Jr., Hardison, Robertson, Harkavy & McCarroll, Memphis, Tenn., for appellants on brief.

G. Wynn Smith, Jr., Canada, Russell & Turner, Memphis, Tenn., for appellee on brief.

Before PHILLIPS, CELEBREZZE and McCREE, Circuit Judges.

PHILLIPS, Circuit Judge.

This case arose as a result of an injury to a thirteen-year old boy who fell beneath a freight train in Memphis, Tennessee. The railroad moved for summary judgment under Rule 56, Fed.R.Civ.P. Appellant, who sues by his mother as next friend, moved for a dismissal of the action without prejudice under Rule 41(a) (2), Fed.R.Civ.P. The District Court denied appellant's motion to dismiss and granted summary judgment

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to the railroad. For the reasons set out below, we reverse the summary judgment and remand the case for further proceedings.

Appellant, along with several other boys, 'hopped' a ride for a short distance on one of the railroad's slow-moving freight trains. In attempting to jump off the train, appellant slipped and fell beneath the car's wheels, sustaining serious injuries.

Jurisdiction is based on diversity of citizenship. Tennessee law controls. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

Appellant's complaint alleged, in part, that the railroad tracks in the vicinity of the Gooch's park in Memphis were used as a playground by children of tender age; that these children frequently jumped on the trains to ride for short distances; that this was a common practice well known to the railroad and had existed for a long period of time prior to the accident; that the failure of railroad employees at any time to discourage the children from playing in the area of the trains or on the trains constituted an invitation to dangers which were or should have been recognized by the railroad; that the railroad took no precautions to provide or guard against children coming on or about the tracks when trains were in the area or to protect the children from injury; and that the failure of the railroad to take reasonable steps to protect children was the proximate cause of the accident. These allegations were denied by the railroad in its answer.

Depositions were filed,...

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