Beard v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 05 February 1970
• Citation: 4 Cal.App.3d 129,84 Cal.Rptr. 449
• Court: California Court of Appeals Court of Appeals
• Parties: Alfred BEARD, by Verdell Beard, his Guardian ad Litem, Plaintiff and Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant and Respondent. Civ. 34054.

Page 449

84 Cal.Rptr. 449

4 Cal.App.3d 129

Alfred BEARD, by Verdell Beard, his Guardian ad Litem, Plaintiff and Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant and Respondent.

Civ. 34054.

Court of Appeal, Second District, Division 2, California.

Feb. 5, 1970.

Hearing Denied April 1, 1970.

Irving H. Green, Los Angeles, for plaintiff-appellant; Eliot B. Feldman, Los Angeles, of counsel.

John J. Balluff, Matthew H. Witteman, Henry M. Moffat, Neal W. McCrory, Los Angeles, John J. Schimmenti, Richard L. Rosett, for defendant-respondent.

FLEMING, Associate Justice.

Action for personal injuries. Plaintiff Alfred Beard, age 14, attempted to board a moving freight train operated by defendant Santa Fe Railway, fell onto the track, and lost both his legs beneath the wheels. In his first count he pleaded the railroad's negligence; in his second count its violation of the Federal Safety Appliance Act (45 U.S.C. § 11) in maintaining a box car sill step in an unsafe condition. Before trial defendant's motion for summary judgment was granted on the second count because plaintiff was not a person to whom a cause of action had been given by the Safety Appliance Act; at trial defendant's motion for a nonsuit on the first count was granted at the conclusion of plaintiff's case. Plaintiff appeals the judgment in favor of defendant on both counts.

I

On 8 March 1963 in Los Angeles, plaintiff, a student in junior high school, was walking home from school with a group of his friends. As plaintiff and his friends crossed defendant's right-of-way adjacent to Slauson Avenue, a slow-moving (10--15 miles per hour) freight train came along, and two of the friends climbed aboard the train in order to ride it a short distance. After they had gotten on, plaintiff ran alongside the train, grasped the handle bar at the end of a box car, and attempted to pull himself aboard. According to plaintiff, as he placed his feet on the sill step of the box car two and one-half feet above the ground the step wobbled and gave way, and he fell beneath the wheels of the train. DP The train passed the point of the accident at the same time every afternoon. The track was straight, and visibility was unobstructed, but a half block away there was a brick wall behind which children could hide from the view of the crew as the front of the train passed by. At the crossing where plaintiff entered the railroad right-of-way and at a point half a block along the track were signs which read: 'Atchison, Topeka and Santa Fe Railway Company, Private Property, Keep Out.' The train was manned by a crew of five, of whom three (two brakemen and the fireman) were charged with the duty to watch for persons attempting to board the train. At the scene of the accident these three had previously seen children walking near the tracks, hiding and ducking behind the wall, and approaching closely enough to the train to require either warning from the crew or emergency application of the brakes. They had also seen children actually boarding trains at other locations, but they did not know of any boarding or attempts at boarding at the point of the accident. However, a witness who worked across the street from the scene of the accident, as well as the two boys who boarded the train ahead of plaintiff, testified that at the point of the accident hopping and riding of the train by school children was a common, almost daily, occurrence.

None of the crew was aware of the accident at the time it happened. The conductor had visually inspected the train's safety appliances, including its sill steps, shortly before the run on which the accident occurred. That evening an experienced car inspector checked every step on one side of the train with a flashlight and found no defects. Four other persons also inspected the train that evening.

Plaintiff was of average or slightly-be-low-average intelligence. He testified he did not realize the dangers involved in hopping rides on moving trains, and said he had never been warned of such dangers by his mother, his friends, or anyone else. Although he had never previously attempted to hop a ride on a train, on several occasions he had seen other boys do so without mishap.

In granting defendant's motion for a nonsuit at the close of plaintiff's case, the trial court concluded that the Safety Appliance Act did not impose absolute liability on the railroad, that the Safety Appliance Act was not intended to benefit trespassing children and therefore its violation could not be used to establish negligence, and that two of the conditions required to impose liability on the railroad on the ground of attractive nuisance had not been met. (Restatement, Second, Torts, § 339(c) and (d).) ¹ The trial court relied on a series of cases holding that juveniles of plaintiff's age are deemed to have assumed the risks which result from boarding moving freight trains. (Smith v. Southern Pacific Co., 222 Cal.App.2d 728, 35 Cal.Rptr. 575; Joslin v. Southern Pacific Co., 189 Cal.App.2d 382, 11 Cal.Rptr. 267; Herrera v. Southern Pacific Co., 188 Cal.App.2d 441, 10 Cal.Rptr. 575; Gutirrez v. Southern Pacific Co., 174 Cal.App.2d 866, 345 P.2d 326.)

Plaintiff argues that the evidence was sufficient to establish liability under any of the following theories: (1) violation of the Safety Appliance Act; (2) attractive nuisance (Restatement, Second, Torts, § 339); (3) concealed trap (Reynolds v. Willson, 51 Cal.2d 94, 101--102, 331 P.2d 48; (4) constant intruder (Restatement, Second, Torts, §§ 334, 335.) Additionally he argues that the rule adopted in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, makes a possessor of property liable for negligence to a trespasser whenever the possessor's conduct foreseeably creates an unreasonable risk of harm.

The nonsuit in this case preceded the decision of the Supreme Court in Rowland v. Christian, and the trial court on the basis of doctrine as it then stood (Restatement, Second, Torts, § 339) took the view that the burden rested on plaintiff to establish that because of his youth he did not realize and appreciate the risk of boarding a moving freight train. On appeal, however, we must apply the law as it stands today. As the court said in County of Los Angeles v. Faus, 48 Cal.2d 672, 680--681, 312 P.2d 680, 685: 'It is the general rule that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation and that the effect is not that the former decision was bad law but that it never was the law.' (Cf. Carlson v. Ross, 271 A.C.A. 51, 76 Cal.Rptr. 209.)

II

Because the judgment on the first count resulted from a nonsuit the specific question thereby presented is whether plaintiff satisfied its burden of establishing a prima facie case. The answer to this question is largely shaped by the substantive and procedural changes in the law brought about by Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 which we now consider in terms of its effect on the parties' burden of proof.

Under Rowland v. Christian, the liability of a possessor of property to trespassing children is no longer limited by the conditions set out in Restatement, Second, Torts, § 339 (approved in King v. Lennen, 53 Cal.2d 340, 1 Cal.Rptr. 665, 348 P.2d 98, and in Smith, Joslin, Herrera, and Gutirrez, supra), or by the terms of other special doctrines and theories created as exceptions to a general rule barring trespassers from recovery for negligence, but is governed by Civil Code, section 1714, which imposes general liability on every person for injuries occasioned to others by want of ordinary care in the management of his property. The status of a claimant at the time of his injury no longer affects the general duty of the possessor of property to exercise ordinary care with respect to reasonable foreseeable risks of personal injury to persons coming on the property. The possessor's duty of ordinary care extends to invitees and trespassers alike, although the foreseeability of injury, and hence the degree of care required of a possessor, continues to be influenced by the likelihood that persons will be present on the property at a particular time and place, a likelihood normally considerably greater for invitees than for trespassers. (Cf. Rowland v. Christian, 69 Cal.2d at 119, 70 Cal.Rptr. 97, 443 P.2d 561.) The former gradations of degree in the possessor's duty of care, which varied with the status of persons on the property, have been superseded by a generic duty owed to all persons on the property based on the reasonable foreseeability of harm to them. Under Rowland v. Christian the extent of a possessor's duty is controlled by the foreseeability of the risk and not by the status of the person injured.

Since a person's status as a trespasser is now largely immaterial and no longer determines that he assumed the risk of personal injuries caused by a possessor's negligence, it follows that the various exceptions to the former rule prohibiting trespassers passers from recovery for negligence no longer serve their inended purpose. One such exception is that of attractive nuisance, an exception designed to permit children who would otherwise be barred from recovery by their status as trespassers to recover under certain conditions for injuries resulting from a possessor's negligence. A trespassing child could show that as a child he did not realize the risk involved in coming on the property, hence he had not assumed this risk, and therefore he qualified as an exception to the general rule of nonrecovery by trespassers against negligent possessors of property. Under the attractive nuisance exception a trespassing child had the burden of proving his lack of appreciation of the risk involved in coming on the property (i.e., rebutting the presumption that as a trespasser he assumed the risk) and also the burden of proving the feasibility...