Catheline v. Seaboard Coast Line Railroad Company, Civ. No. 70-26.

• Decision Date: 12 April 1972
• Docket Number: Civ. No. 70-26.
• Citation: 348 F. Supp. 43
• Parties: Mrs. Lillian CATHELINE, Plaintiff, v. SEABOARD COAST LINE RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Florida

348 F. Supp. 43

Mrs. Lillian CATHELINE, Plaintiff, v. SEABOARD COAST LINE RAILROAD COMPANY, Defendant.

Civ. No. 70-26.

United States District Court, M. D. Florida, Orlando Division.

April 12, 1972.

Karl O. Koepke, Whitaker and Koepke & Assoc., Orlando, Fla., William B. O'Connell, Jr., Arlington, Va., for plaintiff.

Frederick J. Ward, Giles, Hedrick & Robinson, Orlando, Fla., for defendant.

OPINION AND ORDER

WILLIAM A. McRAE, Jr., Chief Judge.

Plaintiff instituted this suit to recover damages for injuries alleged to have been sustained by her while a passenger on one of two of defendant's trains which collided on August 5, 1968. There having been no demand for a jury trial, the issues were put before the Court to be determined on the basis of facts set forth in a stipulation signed by counsel for both parties.

Plaintiff, wife of a conductor for the Penn Central Railroad Company, was traveling on a "Trip Pass" issued by defendant by virtue of her husband's employment. The back of the pass contained a statement that

the person accepting this free ticket agrees that the Seaboard Coast Line Railroad Company shall not be liable, under any circumstances, whether of negligence of agents, or otherwise, for any injury to the person, or for any loss or damage to the property of the passenger using the same.

Both parties agree that federal law governs the liability of an interstate carrier to one injured while traveling on a free pass, Kansas City So. Ry. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348 (1923), and that provisions appearing on such passes can absolve the carrier of liability for ordinary negligence. Francis v. Southern Pacific Co., 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798 (1948); Northern Pacific R. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513 (1904). It is also clear, however, that such provisions cannot relieve the carrier of liability for injuries resulting from its wilful or wanton misconduct. New York Central R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502 (1920).

The parties are also agreed, therefore, that plaintiff may not recover if the facts demonstrate no more than ordinary negligence. This harmonious accord disappears, however, when attention is directed to the precise standard distinguishing such mere negligence from conduct which would justify recovery. The exact nature of wanton and wilful misbehavior has been a subject of continuing debate, yielding conclusions as disparate as they are creative. An effort seemingly on the right track, is contained in the Restatement:

§ 500. Reckless Disregard of Safety Defined

The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. (Restatement, Second, Torts § 500.)^*

This wording, formulated by the American Law Institute after considerable study, has several significant characteristics, including that of heavy reliance upon an objective standard. Subjective inquiries into "intention" appear relevant only where it is necessary to establish cognitive omission of a duty-bound act; a rebuttable presumption of intent apparently surrounds commission. Once it appears that the specific act or omission was conscious, the test calls for an objective assessment of whether, assuming a lack of actual knowledge, a reasonable man would have known that this conduct created a risk of physical harm to another, substantially greater in dimension than that necessary to render the conduct negligent.

The Restatement does not require a showing that the actor himself exercised enough intelligence to recognize the potential for harm resulting from his conduct. It is enough that he should have realized it drawing from facts whose availability would have put a "due care" man on notice not only that there was an unreasonable risk of harm to another—but that its probability was alarmingly high. This objective approach not only saves the plaintiff from having to jerk the main course of his case through the teeth of the adverse party, but also helps assure uniform results in similar factual situations by disregarding the perceptual acuity of the tortfeasor.

In Evens v. Texas Pacific-Missouri Pacific Terminal R., 134 F.2d 275 (5th Cir. 1943), the Fifth Circuit gave implied approval to the objective standard set forth in the first Restatement, (134 F.2d at 276, fn. 2; Restatement cited), which is identical in substance to the second. See Restatement, Second, Torts Appendix § 500, Reporter's Notes. The precise nature of the ruling in that case is perplexing, however, in that the majority opinion also states a wholly subjective test:

wanton negligence may be generally defined as an act (or failure to act when there is a duty to act) in reckless disregard of the rights of another, coupled with a consciousness that injury is a probable consequence of the act or omission. (134 F.2d at 276.) Emphasis added.

Without distinguishing the two tests, the court found the railroad guilty of wanton negligence, in that its employee had injured the plaintiff with "reckless indifference for her safety . . .," and "in full awareness of her peril." (at 277.) In view of the record before the court, however, it seems clear that this projection of the employee's mental state could only have been based upon an objective analysis of the circumstances of the incident. A dissenting opinion highlighted this point, but did so with equal internal inconsistency. The dissenter quoted the Restatement standard verbatim, but declined to apply the "having reason to know" clause by insisting that the actor's own perception was determinative:

. . . there is an entire absence of evidence upon which a jury could found a verdict of wantonness on the employee's part, that is, that conscious that Mrs. Evans was in danger from his actions, he, with reckless disregard of the consequences, pushed the buggy against her, and the burden was on the plaintiff to prove this. (at 279,) Emphasis by the court.

In short, both the majority and dissenting opinions approved mutually inconsistent objective ("having reason to know") and subjective ("coupled with a consciousness") standards. Then, on a record apparently revealing "wantonness" only through the objective assessment, the court paradoxically divided over findings as to the actual state of the actor's mind.

The distinction between the Restatement's standard for wilful and wanton conduct, and the more restrictive rule requiring actual consciousness of probable injury, appears determinative in the case at bar. The stipulation, though sketchy and at points ambiguous, contains facts suggesting shortcomings by several of defendant's employees, none of which amounts to more than ordinary negligence—with one remarkable exception. The stipulation indicates, as have the parties in oral argument, that the heart of the controversy is the quite singular performance of the engineer of defendant's northbound train. His was an exceptional afternoon. While operating the vehicle just after high noon on a clear day in southern Florida, he piled headlong into a southbound train which was standing still, with its headlight burning, on a stretch of straight track over eight miles long. In consummating this unique collision he also trucked past two separate sets of...