Clayton v. Penn Cent. Transp. Co., 3-277A36

• Docket Nº: No. 3-277A36
• Citation: 376 N.E.2d 524, 176 Ind.App. 544
• Case Date: June 05, 1978
• Court: Court of Appeals of Indiana

Page 524

376 N.E.2d 524 176 Ind.App. 544 Garry C. CLAYTON b/n/f Willie Clayton and Willie Clayton,
Appellants (Plaintiffs below),
v.
PENN CENTRAL TRANSPORTATION CO., LeRoy Atherton and City of
South Bend, Appellees (Defendants below). No. 3-277A36. Court of Appeals of Indiana,Third District. June 5, 1978.

[176 Ind.App. 545]

Page 525

Frank J. Petsche, Matthews-Petsche & Associates, South Bend, for appellants.

Edward A. Chapleau, Chapleau, Roper, McInerny, Minczeski & Farabaugh, South Bend, for Penn Central Transportation Co., and LeRoy Atherton.

James H. Pankow, South Bend, for City of South Bend.

STATON, Judge.

Garry Clayton and his father, Willie, filed their complaint to recover damages for personal injuries suffered by Garry when his right foot was crushed between a railroad track and a slow moving train wheel. The railroad company and the city moved for summary judgment, and it was granted by the trial court. Garry Clayton and his father appeal from the granting of summary judgment by the trial court, and we reverse.

On September 4, 1974, Garry Clayton, four years old, and his seven-year-old brother, Willie, Jr., were playing in a city park when a Penn Central freight train passed, traveling at three to four miles per hour. The boys and other children ran down an embankment to the tracks. Meanwhile, Garry tried to jump on the train, could not hold on, and jumped off. Garry was injured when his right foot was run over by the wheels of a freight car. The Claytons filed complaints against Penn Central, the train conductor and the City of South Bend.

After pleadings, depositions and answers to interrogatories had been filed, the trial court granted the railroad's, the train conductor's, and city's motions for summary judgment under Ind. Rules of Trial Procedure, Trial Rule 56.

Summary judgment is only appropriate in cases which raise no genuine issue of material fact and in which the moving party is entitled to judgment as a matter of law. The moving parties, the railroad and the city, must meet their burdens of showing that no material facts are at issue. Hale v. Peabody Coal Company (1976), Ind.App., 343 N.E.2d 316.

"In determining whether such a question of material fact exists, only the evidence and inferences therefrom most favorable to the [176 Ind.App. 546] non-moving party may be considered; all conflicts in the evidence must be resolved against the party seeking summary judgment." Cordial v. Grimm (1976), Ind.App., 346 N.E.2d 266, 268.

In considering the evidence, the trial court accepts as true all the facts set forth by the parties opposing the motion for summary judgment. Johnson v. Motors Dispatch, Inc. (1977), Ind.App., 360 N.E.2d 224; Cunningham v. Universal Battery Division Yardney Electric Corporation (1976), Ind.App., 352 N.E.2d 83.

Even in cases which involve no factual dispute, summary judgment should not be granted if the facts give rise to conflicting inferences which would alter the outcome. Letson v. Lowmaster (1976), Ind.App., 341 N.E.2d 785; McGinnis v. Public Service Company of Indiana, Inc. (1974), Ind.App., 313 N.E.2d 708. We reiterate the observation made in Wozniczka v. McKean (1969), 144 Ind.App. 471, 247 N.E.2d 215, 230:

"Because of the peculiarly elusive nature of the term negligence and the necessity that the trier of facts pass upon the reasonableness of conduct in all of the circumstances in determining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by summary judgment, even where historical facts are concededly undisputed."

Thus, before we could affirm the trial court's granting of summary judgment, we would have to say, as a matter of law, that under no circumstances did Garry Clayton and his father have a valid cause of action against the railroad, the train conductor, and the city upon which the trier of fact could grant recovery.

To recover from the railroad, the train conductor, or the city, Garry Clayton and his father would have to prove negligence. Proof of negligence requires a showing of: a duty on the part of the railroad, the train conductor, or the city;

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their failure to perform that duty; and an injury to Garry Clayton resulting from such failure. In their complaint, Garry Clayton and his father alleged that the railroad company and conductor were negligent in that they failed to take any steps to prevent Garry's injury (such as building a fence, posting a warning, maintaining a look-out, having a watchman walk with the train), although they were aware that children were present.

[176 Ind.App. 547] As a four-year-old child, Garry Clayton is held to be non sui juris as a matter of law. ¹ Indianapolis Traction & Terminal Co. v. Croly (1911), 54 Ind.App. 566, 96 N.E. 973, 976. The railroad had to exercise reasonable care with respect to Garry. Chicago, South Shore and South Bend Railroad Company v. Sagala (1966), 140 Ind.App. 650, 221 N.E.2d 371, 375. This duty of reasonable care did not necessarily require the railroad company to erect fences, hire a watchman, or post signs. Indiana Harbor Belt R. Co. v. Jones (1942), 220 Ind. 139, 41 N.E.2d 361. However, as long ago as 1914, the Appellate Court of Indiana recognized that:

"where the person on the track is a child non sui juris of whose presence the railroad company has knowledge, actual or constructive . . . the company must operate its cars on such tracks with reference to the probable presence of such child and use some care to avoid injuring it . . . ." Cleveland, C., C & St. L. Ry. Co. v. Means (1914), 59 Ind.App. 383, 104 N.E. 785, 792.

Knowledge that children often frequent the vicinity over which a train travels places an affirmative duty on the railroad company to exercise vigilance as to the non sui juris child.

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