O'Connor v. G & R Packing Co.

• Decision Date: 07 April 1980
• Citation: 426 N.Y.S.2d 557,74 A.D.2d 37
• Court: New York Supreme Court — Appellate Division
• Parties: Anthony O'CONNOR et al., Appellants, v. G & R PACKING CO., Respondent.

Page 557

426 N.Y.S.2d 557

74 A.D.2d 37

Anthony O'CONNOR et al., Appellants, v. G & R PACKING CO., Respondent.

Supreme Court, Appellate Division, Second Department.

April 7, 1980.

Lipsig, Sullivan, Mollen & Liapakis, P. C., New York City (Emilio Nunez, Scott Mollen and Pamela Anagnos Liapakis, New York City, of counsel), for appellants.

Griffin, Scully & Savona, New York City (John F. Scully, Joseph F. X. Savona and William G. Kelly, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and TITONE, LAZER and O'CONNOR, JJ.

O'CONNOR, Justice.

In 1967 Anthony O'Connor (hereafter plaintiff) sustained grave injuries while playing atop a freight car parked in a Brooklyn railroad yard. After the dismissal of the complaints in consolidated negligence actions against several railroad companies and other defendants to recover damages for those injuries, plaintiff and his father, John O'Connor, commenced the instant suit. They sought to recover damages for the same injuries from G & R Packing Co., charging the defendant with negligent maintenance of the entrance to its plant, which adjoins and leads into the railroad yard. The defendant's motion to dismiss the complaint has been granted on the ground of collateral estoppel. The central issue on appeal is whether the dismissal of the complaints in the prior actions entailed a necessary finding of contributory negligence which precludes litigation of the negligence claim in the instant suit.

The evidence adduced at the December, 1973 trial of the earlier actions revealed the following: On the afternoon of February 11, 1967 plaintiff, then a 16-year-old minor, exited the BMT subway station on 8th Avenue and 62nd Street in Brooklyn accompanied by five other boys. The group entered a gate and walked down a hill on a road which traversed property used by defendant, G & R Packing Company, for its business operations and leading directly into the Bay Ridge railroad yard. The yard extends from 11th Avenue to the Brooklyn waterfront and, at the time in question, was utilized as a "storage drag" in which freight cars destined for New England were parked in trains of some 20 to 110 cars and later "floated", or ferried, across New York harbor; trains arriving by ferry were dispatched from the yard into the Pennsylvania Railroad system. Plaintiff and his companions were having a snowball fight as they approached the end of one of the trains parked in the yard, and plaintiff scaled a ladder on the end of a freight car and stood on top. Another boy started up the ladder behind him. Catenary poles supported overhead high-tension wires used to deliver 11,000 volts of electrical power to the trains; plaintiff conceded that, as he stood atop the box car, the lowest wire was "(h)igher or just equal to the top of (his) head". Signs warning of the dangerously high voltage were posted on each pole supporting the overhead wires, but plaintiff professed that he never saw them. He remembered standing on the freight car only long enough to throw "a few snowballs". As he did so his hand came into contact with an overhead wire, and he sustained massive injuries.

The complaints in the actions against various railroads and other defendants alleged, in substance, that those defendants negligently, recklessly or willfully caused plaintiff's injuries by failing, inter alia, to maintain proper fences around the railroad yard, to post guards or otherwise warn plaintiff of danger, to operate the high voltage lines with due regard to safety and to prevent the plaintiff and other children "from climbing on or about the freight cars which were laying (sic ) idle". G & R Packing Company was not joined as a party defendant in those actions. In addition to the aforementioned events, the trial evidence established that there were two entrances to the Bay Ridge railroad yard in the vicinity of the accident, one on 8th Avenue for the switchmen and another through G & R's premises. There was a warning sign on the 8th Avenue entrance but none at the G & R entrance. Other than the signs posted on each catenary pole, there were no warning signs in the railroad yard, which was secured between 6th and 8th Avenues by a five-foot high chain link fence. The Bay Ridge yardmaster testified that prior accidents had occurred in the yard near the place where plaintiff was injured, but he was not permitted to testify as to the frequency of such accidents or as to whether children were involved. The yardmaster recalled seeing children at play in the yard prior to the day of plaintiff's accident, but he did not determine how the children had gained entrance to the railroad property. There were no railroad police in the yard at the time of plaintiff's accident, but the railroad police did patrol the area by making "spot checks". A fair reading of the trial evidence demonstrates that upon receiving word on the afternoon in question that children were playing on railroad cars, the railroad's power director's office took immediate steps to cut off power in the Bay Ridge yard.

Plaintiff also testified that at the time of the accident he was familiar with the operation of trains and tracks in another railyard located near his home. He further stated that he knew that it was dangerous to touch a wire if it carried electricity and that he would not place his finger in an electrical outlet. His father, who in both the prior suits and the present action joined his own claims for loss of services and medical expenses, testified that his son had suffered from hearing and speech impediments as a child and had experienced academic problems throughout grammar school and high school.

At the close of evidence in the prior trial defendants renewed a motion to dismiss the complaints and also sought a directed verdict in their favor, arguing that plaintiff had been a trespasser on railroad property and that the evidence failed to demonstrate a breach of any legal duty by the railroads. Plaintiffs, in opposition, contended that the accident was foreseeable, that there was no proof of trespass and that even if the infant was a trespasser, the evidence raised questions concerning the adequacy of defendants' efforts to warn children of the hazards associated with the "inherently dangerous articles" maintained on the railroad property. Plaintiffs further contended that there was a jury question as to whether railroad personnel knew that children were present in the railyard just prior to the accident and failed to disconnect the power in time to prevent the accident, raising the possibility that defendants could be found liable on a last clear chance theory.

In an oral decision announced from the bench, Mr. Justice Samansky dismissed the complaints and denied all other motions as academic, concluding that "the plaintiffs as a matter of law failed to establish liability on the part of the defendants on the plaintiff's theory of negligence as well as the theory of the last clear chance." The court found the infant plaintiff to be a trespasser under both common law and statute (see Railroad Law, § 83; former Penal Law, § 1990, subd. 4; cf. Penal Law, §§ 140.05; 140.10; 165.15, subd. (3)). Furthermore, defendants had not breached the duty owed to plaintiff which, under the legal principles then prevailing, "was to refrain from committing any wilful or wanton injury". Justice Samansky then stated:

"The infant plaintiff not only disobeyed these statutes which were enacted for the benefit of the public but also deliberately and needlessly exposed himself to a known danger by climbing to the top of a freight car and moving about in a close proximity to live high tension wires.

"There are many cases which hold that under circumstances similar to those of the instant action, there is no liability on the part of the railroad. In some of these cases, the plaintiff was several years younger than the plaintiff herein.

"See Lederman v. New York City Transit Authority, 36 Misc.2d 571 (233 N.Y.S.2d 425) * * * affirmed 21 App.Div.2d 751 (252 N.Y.S.2d 28); appeal denied to the Court of Appeals, 14 N.Y.2d 488 (253 N.Y.S.2d 1026, 202 N.E.2d 157). See also Locasto v. The Long Island Rail Road, 6 N.Y.2d 470 (190 N.Y.S.2d 366, 160 N.E.2d 846). See also Ralff v. Long Island Railroad, 266 App.Div. 794 (41 N.Y.S.2d 620) * * * affirmed 292 N.Y. 656 (55 N.E.2d 518). See also Nilsen v. Long Island Railroad, 268 App.Div. 782 (48 N.Y.S.2d 817) * * * affirmed 295 N.Y. 721 (65 N.E.2d 428). See also Van Houten v. The Long Island Railroad, 279 App.Div. 1099 (112 N.Y.S.2d 678). Leave to appeal denied, 280 App.Div. 830 (113 N.Y.S.2d 776), 304 N.Y. 990 (108 N.E.2d 412). In Wolf v. Smith, et al., 32 N.Y.2d 724 (344 N.Y.S.2d 364, 297 N.E.2d 99). See also that case with respect to the plaintiff's theory of last clear chance."

Plaintiffs' contentions under the doctrine of last clear chance were rejected on the ground that "there has been a failure to substantiate the essential elements of this theory." The court explained its ruling as follows:

"The plaintiffs' evidence as to the events preceding the accident do not demonstrate that the infant plaintiff was in a position of danger which was such that he could not extricate himself and that the defendant's (sic ) employee or employees had actual knowledge of such situation of the infant plaintiff, and had ample time or opportunity to avoid an accident and failed to exercise care in avoiding the accident."

Plaintiffs did not prosecute an appeal from dismissal of their complaints in the earlier actions.

In 1974 plaintiffs commenced the instant action against G & R Packing Company to recover damages for the injuries suffered in the accident seven years earlier. The complaint alleges that defendant maintained its principal place of business on premises adjacent to the Bay Ridge railroad yard where plaintiff was injured, and sets forth five causes of action. The first cause of action contains allegations of negligence...