Howard v. Atlantic Coast Line Railroad Company

• Decision Date: 06 April 1956
• Docket Number: No. 15682.,15682.
• Citation: 231 F.2d 592
• Parties: Roberta HOWARD, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

231 F.2d 592 (1956)

Roberta HOWARD, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.

No. 15682.

United States Court of Appeals Fifth Circuit.

April 6, 1956.

Nathan Bedell, Chester Bedell, Jacksonville, Fla., for appellant.

Charles Cook Howell, Jr., Charles Cook Howell, Howell & Kirby, Jacksonville, Fla., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment for the defendant entered notwithstanding a $7,000 jury verdict returned for the plaintiff. The sole question for our determination is whether the evidence, considered in the light most favorable to the plaintiff, is sufficient to warrant a finding of liability on the railroad's part for the death of the plaintiff's five-year-old son, under the Florida law of attractive nuisance.

At the trial, it was shown that on April 11, 1954, the plaintiff's three sons, aged 11, 9 and 5, respectively, went to their uncle's house, in Jacksonville, about three blocks from the railroad property in question. In the afternoon, the boys' sister, who was also visiting at the house, decided to walk to the church in the neighborhood. They accompanied her for a distance, and after parting with her, continued walking until they discovered some blackberries, on the east side of the railroad's tracks. They picked these for a time, and then proceeded further on the railroad's property, under a nearby trestle. There are "No Trespassing" signs near each end of the trestle, but the boys did not see them.

After they passed under the trestle and came out on the west side of the tracks, they observed several other boys swimming in a pit, or well, about thirty feet from the trestle in an adjacent vacant lot owned by the railroad. The well, formerly utilized to furnish water for steam locomotives, was twenty feet long and twenty feet wide, and nine feet seven inches deep. The lot was marshy, and overgrown with bushes and weeds, but the latter had been beaten down sufficiently by constant intrusions to make a path leading to the well. John, the youngest, asked his oldest brother if he could swim in the well. While the older boy found a long stick and was about to test the depth of the well with it, John took off his clothes and stood close by. In measuring the depth of the well with the stick, the older boy accidentally struck John with his elbow, and caused him to fall into the well. The other boys were unable to rescue him, and by the time firemen could be summoned, he had drowned.

The well in question was one of 65 such wells abandoned by the railroad's southern division in the period 1951 through 1954, after it adopted the use of Diesel locomotives exclusively. It therefore served no useful purpose for the railroad, and was boarded over by the railroad's employees, the boards being nailed to the wooden sides of the well. In 1953 and 1954, in the spring, railroad employees discovered boys swimming in the well, they having pried the boards off. The employees ordered them to leave, and replaced the boards. These efforts at exclusion were ineffective, however, for the boys continued to swim in the well, and in the spring of 1954, one boy went swimming in the well eleven times, without once seeing the cover on the well, although the boards were nearby.

On Wednesday, April 7, 1954 — four days before the plaintiff's son was drowned — G. L. Cox, a roadmaster on the railroad, received a report that boys were swimming in the well. He investigated personally, and found the boards torn off the well and arranged so as to make a diving board. On the theory that the boys were swimming naked in the well with the bushes for cover, he ordered the bushes cut the following day, thinking that this would stop them. This was done. He went back that evening and found about five boys swimming in the well. He told them that they wouldn't be allowed to swim there any more, but they resumed swimming as soon as he started to leave. On Friday he went to a section gang which was using a bulldozer to level some land, and ordered them to load the bulldozer on a flat car before they quit work that day. These orders were followed, and the flat car was spotted at the site of the well on Saturday morning, in preparation for the well's being filled in on Monday. On Sunday, Cox returned to the well at noon, and found no one swimming there. Later that afternoon the plaintiff's son was drowned in the well, and the well was filled in on Tuesday, after the railroad's legal department had finished its investigation.

The parties agree that under Florida law the general rule is that the owner of an artificial body of water is not guilty of actionable negligence for drownings therein unless it is so constructed as to constitute a trap or unless there is some unusual element of danger lurking about it not existent in ponds generally. Lomas v. West Palm Beach Water Co., Fla., 57 So.2d 881; Newby v. West Palm Beach Water Co., Fla., 47 So. 2d 527; Allen v. William P. McDonald Corp., Fla., 42 So.2d 706. The plaintiff contends that the unusual element of danger lurking about the railroad's well in this case is the straight decline of the sides of the pool to a depth of nearly ten feet. Thus, the argument proceeds, an unwary child who might enter the well with the idea of wading out a short distance into it would step immediately into such a depth of water that he could not recover himself.

The proposition is difficult to sustain in the light of the facts of this case, which show that the plaintiff's son did not meet his death by the type of youthful indifference to danger just described, but instead while an onlooker to a test being applied to determine the extent of the well's depth.

The question remains, nonetheless, whether the precipitous character of the well's sides is a hidden danger or a danger not present in ponds generally. It can hardly be argued that steep banks...