Hughes on Behalf of Hughes v. Union Pacific R. Co., 16994

CourtUnited States State Supreme Court of Idaho
Citation757 P.2d 1185,114 Idaho 466
Docket NumberNo. 16994,16994
PartiesLois HUGHES, on Behalf of Joseph Alexander HUGHES, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Respondent.
Decision Date17 June 1988

Page 1185

757 P.2d 1185
114 Idaho 466
Lois HUGHES, on Behalf of Joseph Alexander HUGHES, Plaintiff-Appellant,
No. 16994.
Supreme Court of Idaho.
June 17, 1988.

Page 1186

[114 Idaho 467] Goicoechea Law Offices, Pocatello, for plaintiff-appellant. James F. Combo argued.

Green, Service, Gasser & Kerl, Pocatello, for defendant-respondent. F.L. Ringe argued.

BAKES, Justice.

Appellant, Joe Hughes, age 13, was injured when his feet were caught in the coupler between two railroad cars while he was crossing the Union Pacific Railroad (UPRR) yard in Pocatello, Idaho. Appellant brought suit against UPRR. Upon a special verdict, the jury found that appellant was more than 50% negligent in causing his own injuries. Pursuant to I.C. § 6-801 the district court entered judgment for the defendant UPRR. The court denied appellant's motion for judgment notwithstanding the verdict and new trial. Appellant appeals. We affirm.


The UPRR Shipping and Receiving Yard lies in the heart of downtown and residential Pocatello. It runs for approximately three miles, separating east Pocatello from west Pocatello. Much of the yard is enclosed by a chain link/barbed wire fence, eight feet in height. When the fence was built in early 1984, Roche Moving & Storage Company, a business on the east border of the railroad yard, requested access to the side of their building through the fence. In compliance, UPRR left a 3 1/2 foot opening next to the Roche building, but no gate was ever installed.

Three roads cross over the railroad yard; at issue here is the Benton Street overpass, which returns to ground level near the north side of the Roche building.

On March 15, 1986, appellant, his brother Tom, age 15, and another friend, Dan Gill, also age 15, were walking from the east side of town to a birthday party on the west side. As they were walking on the sidewalk starting over the Benton overpass, Dan suggested instead that they go under the overpass, crossing through the railroad yard as he had done earlier that day. 1 Appellant's older brother Tom replied, "No. It's dangerous." Nevertheless, appellant testified that he thought "it

Page 1187

[114 Idaho 468] would be a challenge, just kind of be fun," so appellant and Tom followed Dan and they entered the railroad yard through the gap in the fence next to the Roche building. They continued across the tracks in a relatively straight line, crossing several lines of train cars either by going over the couplers or by crawling under the cars. When crawling under, appellant testified he would make the maneuver near the middle of the car because if the train happened to start rolling, he didn't want to be close to the wheels.

Eventually they approached the last string of cars. Tom and Dan had seen this last string move while they were still two or three tracks away. In addition, Tom testified he had heard it move. The string was now stopped, but Tom felt uneasy about the situation and said to appellant, "Joe, let's go back." Appellant responded, "No. I'll meet you on the other side." Tom turned back, exiting the railroad property where he had entered. Tom walked over the Benton overpass alone while Dan and appellant went on. In negotiating the last train, Dan climbed up between two cars, stood on the coupler, and jumped off. Appellant attempted to cross in the same manner, even though he had previously heard loud booms off to his left. As he stood on the coupler, however, the train moved and his feet were injured by the coupling mechanism.

Appellant filed suit against UPRR for his injuries. He alleged that UPRR knew that individuals were crossing its tracks under the Benton overpass and, despite that knowledge, negligently failed to place a gate in the unfenced areas or to place signs on their property warning the public of the dangers of the railroad yard and that trespassing was prohibited. He also alleged that the railroad yard and the equipment maintained thereon were attractive nuisances and that his injuries were caused by UPRR's negligence in maintaining an unsafe condition.

In its answer UPRR denied plaintiff's allegations and alleged as an affirmative defense that appellant's injuries were due to his own negligence. At the close of the evidence, UPRR moved for a directed verdict alleging: (1) that appellant failed to establish his claim under the attractive nuisance doctrine; and (2) that appellant's own negligence was equal to, if not greater than, UPRR's as a matter of law. The district court denied the motion for a directed verdict with respect to the negligence issue and advised that it would rule on the attractive nuisance issue via the jury instructions. At the jury instruction conference, the court refused plaintiff's requested Instruction No. 20 on the attractive nuisance doctrine. In addition, the court instructed the jury that, as a matter of law, the railroad was not obliged to place signs on its property indicating its status as private property.

The jury returned a special verdict finding appellant more negligent than UPRR. Accordingly, the court entered judgment denying appellant's claim. Appellant filed a motion for j.n.o.v. or, in the alternative, for a new trial. The motion was denied by order dated May 6, 1987.


Appellant raises two issues on appeal. They concern: (A) the trial court's refusal to give appellant's requested instruction regarding attractive nuisance; and (B) the instruction given the jury regarding placement of signs indicating a tract of land's status as private property. Each issue is addressed in turn.


Appellant first argues that the trial court erred in refusing to give his requested Instruction No. 20 regarding the attractive nuisance doctrine. Appellant's Instruction No. 20 was based upon the Restatement (Second) of Torts, § 339 (1965). Idaho law regarding attractive nuisance is found in Bass v. Quinn-Robbins Co., Inc., 70 Idaho 308, 216 P.2d 944 (1950). As stated in Bass, the attractive nuisance doctrine is applicable under the following circumstances:

"To render the owner liable the structure or condition maintained or permitted on his property, must be peculiarly or

Page 1188

[114 Idaho 469] unusually attractive to children; the injured child must have been attracted by such condition or structure; the owner must know, or the facts be such as to charge him with knowledge, of the condition, and that children are likely to trespass and be injured; the structure or condition must be dangerous and of such a character that the danger is not apparent to immature minds." 70 Idaho at 312, 216 P.2d at 945 (bracketed numbers added).

Plaintiff's requested Instruction No. 20 did not reflect the law as set out in the Bass case. Idaho Pattern Jury Instruction, IDJI 310, correctly incorporates each of the four elements set out in Bass v. Quinn-Robbins Co., supra, and when the factual circumstances justify the giving of an attractive nuisance instruction, IDJI 310, rather than plaintiff's requested Instruction No. 20, is the correct instruction to be given. 2

However, even if plaintiff had requested the correct instruction, the trial court correctly ruled that the evidence introduced at trial did not justify the giving of any attractive nuisance instruction. No evidence was presented at trial to support several of the elements necessary to invoke the attractive nuisance doctrine. As enunciated in Bass, a prima facie attractive nuisance case requires a showing (1) that the condition maintained on the property was peculiarly or unusually attractive to children; (2) that the injured child was attracted by the condition or structure; (3) that the owner knows, or the facts are such as to charge him with knowledge, of the condition and that children are likely to trespass and be injured; and (4) that the condition was of such a character that the danger was not apparent to immature minds (the "danger not apparent" element). Bass v. Quinn-Robbins Co., supra at 312, 216 P.2d 946.

In the instant case, the condition of the railroad yard was not peculiarly attractive to children. Appellant himself testified that he had never seen anyone (let alone children) crossing the tracks in the Benton overpass area; neither had he ever heard of anyone crossing in that area before March 15, 1986, the date of his first crossing. Joe Hughes had never previously tried to enter UPRR's property, nor had he looked for a way to get in. Neither was the railroad yard attractive to children as a "shortcut"; as Dan Gill testified, going over the overpass is "quicker" than going under it. As stated in Holland v. Baltimore & Ohio RR Co., 431 A.2d 597, 602 (D.C.1981), "The overwhelming weight of authority in jurisdictions across the country is that the attractive nuisance exception does not apply as a matter of law in cases where child trespassers are injured by moving trains." (Citing 19 cases.)

As to the second element, the trial court noted that there was absolutely no testimony that appellant Joe Hughes was in fact attracted to the railroad property by any condition thereon. Rather, as the trial judge noted, the testimony demonstrated conclusively that appellant went upon the railroad's property at the invitation and challenge of his companion, Dan. Accord McCormick v. Williams, 194 Kan. 81, 397 P.2d 392, 395 (1964), reh'g denied 1965 ("It is necessary that the instrumentality alleged to be an attractive nuisance should have been so situated as to entice the child onto the premises before liability could be imposed.").

Finally, even though plaintiff argued that there was conflicting testimony (appellant's mother, Lois Hughes, testified that Joe was a "mama's boy," and "really quite naive for his age"), the trial court did not err in concluding that the fourth element of

Page 1189

[114 Idaho 470] the attractive nuisance doctrine, the "danger not apparent" element, was not met as a matter of law. As the court...

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