Brooks v. Norfolk & W. Ry. Co., 75-236

CourtUnited States State Supreme Court of Ohio
Citation45 Ohio St.2d 34,340 N.E.2d 392,74 O.O.2d 53
Docket NumberNo. 75-236,75-236
Parties, 74 O.O.2d 53 BROOKS, a minor, Appellee, v. NORFOLK & WESTERN RAILWAY COMPANY, Appellant.
Decision Date14 January 1976

Page 34

45 Ohio St.2d 34
340 N.E.2d 392, 74 O.O.2d 53
BROOKS, a minor, Appellee,
No. 75-236.
Supreme Court of Ohio.
Jan. 14, 1976.
Syllabus by the Court

1. Where the status of plaintiff is that of a trespasser on a railroad right-of-way way at the time certain injuries were sustained by him, recovery can only be had against the railroad if the record demonstrates wanton misconduct on its part in connection with the accident.

2. A minor, who is injured while trespassing on a railroad right-of-way, cannot recover damages from the railroad for such injuries upon a complaint alleging [340 N.E.2d 393] wanton misconduct which is supported solely by evidence that the railroad failed to take action to prevent the trespass.

On August 28, 1969, plaintiff, a ten-year-old boy, and two young friends were walking north on the east side of Cherry Avenue in Canton to a boys club. On the east side of Cherry Avenue there is located the city of Canton Jackson Park, with a play area for children. The park is bisected by a right-of-way of the Norfolk & Western Railway Company which accommodates a single railroad track running generally from the northeast in an east-by-south direction as it crosses Cherry Avenue. The club, which was the destination of the three boys, is located on Cherry Avenue north of this right-of-way.

Page 35

On the day in question when the boys reached the grade crossing, a Norfolk & Western freight train was moving in a westerly direction across Cherry Avenue and vehicular and pedestrian traffic on Cherry Avenue was halted. While waiting for the train to clear the crossing, the boys played in a grassy area of the park east of the Cherry Avenue easterly sidewalk and south of the track. They threw a ball around and wrestled. After five or six minutes the plaintiff, Tyrone Brooks, went to the slowly moving freight train and hopped on a boxcar at a ladder. In a matter of seconds he fell from the car and his right foot slipped under the wheels of the train. His right foot was crushed necessitating the surgical amputation of a portion of the foot.

Suit was filed on Tyrone Brooks' behalf for damages against the Norfolk & Western railway and the city of Canton in the Court of Common Pleas of Cuyahoga County. The amended complaint, in part, alleged that:

'2. This area (Jackson Park) was maintained by the city of Canton which allowed the Norfolk and Western Railroad to build a line of track through the park while allowing the park facilities to remain open and free for public use.

'3. There were no facilities of any kind by way of fencing in the area of the track through the heart of the park at this time.

'4. By virtue of the compound negligence and wanton misconduct of the defendants the minor plaintiff, Tyrone Brooks, had his right foot and leg crushed beneath a train traversing the right-of-way through Jackson Park.'

Upon separate motions by each of the defendants, after the issues were joined, the Common Pleas judge dismissed the complaint as to each defendant. On appeal, the Court of Appeals reversed the dismissals and remanded the case for trial. Trial was thereupon had before a second Common Pleas judge. Upon conclusion of plaintiff's case, motions for directed verdicts were made on behalf of each defendant and were overruled. A joint verdict

Page 36

was returned in favor...

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    ...others in circumstances where the probability of harm is great and is known to the actor. Brooks v. Norfolk & Western Ry. Co. (1976), 45 Ohio St.2d 34, 340 N.E.2d 392." Rinehart, 91 Ohio App.3d at 229, 632 N.E.2d at 544. Willful misconduct "involves an intent, purpose or design to injure." ......
  • Gladon v. Greater Cleveland Regional Transit Auth., 94-1063
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    ...& Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 450-451, 510 N.E.2d 386, 388; Brooks v. Norfolk & W. Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392, paragraph one of the syllabus ("Where the status of a plaintiff is that of a trespasser on a railroad righ......
  • Alston v. Baltimore & OR Co., Civ. A. No. 75-184.
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    ...Ry., 105 Minn. 128, 117 N.W. 250 (1908); Smith v. Illinois Central R.R., 214 Miss. 293, 58 So.2d 812 (1952); Brooks v. Norfolk & W. Ry., 45 Ohio St.2d 34, 340 N.E.2d 392 (1976); Scibelli v. Pennsylvania R.R., 379 Pa. 282, 108 A.2d 348 (1954); Courtright v. Southern Compress & Warehouse Co.,......
  • McKinney v. Hartz & Restle Realtors, Inc., 86-1213
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    ...conduct." Elliott v. Nagy (1986), 22 Ohio St.3d 58, 60, 22 OBR 77, 78, 488 N.E.2d 853, 854; Brooks v. Norfolk & Western Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392; see, also, Prosser & Keeton, Torts (5 Ed.1984) 397, Section 58. Willful conduct "involves[510 N.E.2d 389] a......
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