Hocking v. Duluth, Missabe & Iron Range Railway Co.

• Decision Date: 14 September 1962
• Docket Number: No. 38301,38301
• Citation: 263 Minn. 483,117 N.W.2d 304
• Parties: Steven Michael HOCKING, a minor by Corinne Hocking, his mother and natural guardian, and Corinne Hocking, Respondents, v. DULUTH, MISSABE & IRON RANGE RAILWAY COMPANY, Appellant.
• Court: Minnesota Supreme Court

Page 304

117 N.W.2d 304

263 Minn. 483

Steven Michael HOCKING, a minor by Corinne Hocking, his mother and natural guardian, and Corinne Hocking Respondents, v. DULUTH, MISSABE & IRON RANGE RAILWAY COMPANY, Appellant.

No. 38301.

Supreme Court of Minnesota.

Sept. 14, 1962.

Syllabus by the Court.

There is no proof in the instant case sufficient to establish liability under the four conditions stated in Restatement, Torts, § 339. There must be causal relationship between a breach of the railway company's obligations and the injury to the child. Actionable negligence does not exist unless there has been a failure to discharge a legal duty to the one injured.

Franklin B. Stevens and John F. McGrath, Duluth, for appellant.

Lewis, Hammer, Heaney, Weyl & Halverson, Duluth, for respondents.

NELSON, Justice.

This appeal involves an action for personal injuries sustained by Steven Michael Hocking, a minor, brought against the Duluth, Missabe & Iron Range Railway Company in said minor's behalf by his mother and natural guardian, and said action includes a separate claim by Corinne Hocking, the mother, for medical, hospital, and other expenses incurred by her. The injuries to said minor resulted from a fall while climbing about a trestle leading to one of the ore docks of defendant railway company in the city of Duluth.

The case was tried to a jury. At the close of plaintiff's evidence, and again at the close of all the evidence, the trial court denied a motion by the railway company for a directed verdict. The jury returned a verdict in favor of Steven in the sum of $10,000 and in favor of his mother in the sum of $3,324.72. The railway company moved for judgments in its favor notwithstanding the verdicts, which motions were denied. Defendant made no motions for a new trial. Defendant appeals from the judgments.

The trial court submitted both cases to the jury on the theory of negligence and left it for the jury to determine whether the reilway company was negligent and whether Steven was contributorily negligent.

Upon the motion for directed verdicts below, plaintiffs were entitled to have the evidence viewed in the light most favorable to them.

The relevant facts, many of which are not in dispute, may be stated as follows: Steven, 10 1/2 years of age, and a companion, age 12, went upon the railway company's property to capture pigeons for sale to a restaurant. The property and tracks involved are located in West Duluth, Minnesota, near West Third Street or Grand Avenue. The property consists of three large trestles which run down from that street to the edge of St. Louis Bay. These trestles were built between the years 1913 and 1918 and are used to load iron ore hauled from the mines on the iron range to the boats in the bay. The trestles abut against the hill which runs along the northern edge of the city of Duluth and they are raised above the level of the ground which descends to the bay so as to maintain a level deck and tracks above the water. Trains proceed on the tracks over these trestles en route from the iron range to the bay and constitute a part of defendant's railroad system. Two of the three trestles form the approach to the docks from which iron ore is discharged from the trains into vessels that carry it to the lower lake ports. The top or deck part of the trestles rests upon a network of upright steel columns which support two large I-beam girders which form the framework or structural portion of the deck containing the tracks over which the trains pass. The height of these columns from the beginning of the trestles to the underneath portion of the I-beam girders varies with the grading of the ground as it slopes from the hillside to the bay shore.

On the afternoon of the accident Steven and his companion climbed up a dirt embankment at a point where the trestles meet the side of the hill and the fence terminates. Without apparent difficulty they crossed the tracks of the so-called passenger dock and climbed up inside the I-beam girder framework under the deck portion of the first ore dock, which is the center of the three docks. They did not walk along the top of the trestles or the tracks but made their way through the framework underneath. The framework through which the boys climbed consists of two very large I-beam girders spaced far enough apart to permit the laying of the railroad track on the top plus a space on each side of the tracks. The upper portion between these two beams is solidly connected with a steel and concrete decking on which the tracks are laid. The bottom portion where these large beams meet the supporting upright columns is open except that the I-beam girders are braced apart by an interlacing of steel angle irons in the form of X's as shown in the illustration.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It was along the edge of the bottom of the I-beam girders, and by use of portions of the X bracing for additional footing, that the boys worked their way for a distance of 3 1/2 city blocks to the place where the accident occurred, at which time they were about 53 feet above the ground. There were points as they moved along where they had to get around uprights which blocked progress along the edge of the I-beam girders, at which times they would be hanging in midair. The bottom ledge of the I-beam girder has an uneven surface caused by raised rivet heads interspersed along it and it is only 7 inches wide. The angle irons that make up the X bracing are only 4 inches wide. They are placed on end leaving only a narrow edge available for footing and these are connected with the I-beam girders only at the corners of each section. At all other points there is nothing but open space between the girder ledge and the X bracing, the opening in some of these places being about 3 feet wide. The space between the I-beams is 67 inches and the X's meet in the center.

Steven testified that during the time he was working his way along the trestle framework he thought about holding on but didn't remember how the accident happened. Steven's companion, Ralph Anderson, testified that a train had passed over the trestle sometime before the accident occurred but that none was passing when Steven fell. The record does not indicate anything specific causing Steven to fall. The last thing he remembers before he fell was stopping to rest.

Steven's companion testified that he was aware of a 'No Trespassing' sign and also that he knew it meant to keep out although he could not remember any specific instance when he had been told to stay out of the dock area.

Steven testified that access to the docks could be gained in various ways in spite of the cyclone fence that enclosed the area. There was other evidence which also established that the fence was not boy-proof and that there were several places where access could be gained by boys who wanted to and did circumvent the fence. There is testimony to the effect that Steven had climbed into these trestles on two earlier occasions and that on one of those occasions he climbed from the ground up to the under part of the deck of the passenger dock by means of some crosspieces on one of the upright support columns. On the occasion of his falling he said he was resting but that while he was up there he was holding on good and tight and that was the main thing he was thinking about. Steven admitted that as he climbed up there on the day of the accident he found himself hanging out in the air part of the time and on those occasions he realized if he made a misstep he would fall and get hurt. He admitted that he knew the fence around the area meant to stay out and that he shouldn't have been there; that he realized it was dangerous to be climbing on the trestles. He said he had been warned to stay away from railroad tracks but not specifically trestles but that he knew the trestle was more dangerous than the tracks themselves. He said his mother had also warned him to stay off the tracks and the record shows that all the young boys called as witnesses by plaintiffs admitted knowing that they should not be up there in the trestles, that it was dangerous; and that they might fall and be injured.

From the testimony of Steven's mother, from his own testimony, and from the school records introduced it is clear that he was a good student and did not lack the intelligence of a boy of his age.

The evidence indicates that the railway company knew and had known that children trespassed in the area. Several witnesses, including Steven's companion, were called to testify by plaintiffs and all to a greater or lesser degree admitted that they had frequented the area and had gone in among the trestles to hunt pigeons. There was testimony indicating this practice dated back at least to the early 1930's.

A witness testifying for the railway company stated that they had hired exterminators to kill the pigeons inhabiting the trestle and dock areas. They had found it necessary to do so because of the corrosive effect pigeon excrement had on the metal in the trestle structures. This witness also testified that it would not be practical from the standpoint of either expediency or economy to attempt to make the area safer by guarding or by further fencing the trestles and railway structures or the ore docks to prevent trespassing and the type of occurrences here involved.

There was testimony by railway company witnesses that on occasions they had even gone to the Bethany Children's Home, a home for young boys in the vicinity of the railway company's tracks, to talk to them and warn them about the dangers. This precautionary measure take on the part of the railway company was brought about because of boys going into the area to catch pigeons.

The record further indicates that the railway company patrol supervisors checked this area, and whenever young boys would be caught trespassing on railway property or trestles, they would talk to...