James v. Atchison, Topeka and Santa Fe Railway Co.

Decision Date27 July 1972
Docket NumberNo. 71-1734.,71-1734.
Citation464 F.2d 173
PartiesKatherine JAMES, Administratrix of the Estate of Frank James, Deceased, Plaintiff-Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Melvin L. Robins, Albuquerque, N. M. (Lorenzo A. Chavez, Albuquerque, N. M., on the brief), for plaintiff-appellant.

Jerrald J. Roehl, Albuquerque, N. M. (B. G. Johnson and J. J. Monroe, Albuquerque, N. M., on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, and KILKENNY * and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The district court granted the motion of defendant-appellee Santa Fe for summary judgment based on answers to interrogatories, depositions and affidavits, and the question here presented is whether it was appropriate for the court to determine that defendant had demonstrated beyond reasonable doubt that there were no genuine issues of fact in the case and whether it was proper to enter judgment for the Santa Fe as a matter of law. We conclude that there are triable issues and, therefore, we reverse and remand for a trial.

The Santa Fe cars backed over decedent, Frank James,1 amputating both of his legs. He was at the time in a helpless, unconscious state due to a condition of drunkenness. The present plaintiff, decedent's wife, has been appointed administratrix and substituted as a party plaintiff following James's death.

Decedent, a Navajo Indian, had been employed by the Santa Fe as a laborer on a part-time basis, and on November 13, 1968, he came to the office of the Santa Fe at Gallup, New Mexico, for the purpose of collecting a small amount of wages and/or expenses which were due him. He was told at the Santa Fe office that his check had not been received, and he thereupon walked across the street, which is U. S. Highway 66, and frequented a number of bars. He started drinking at 1:00 p. m. and continued until about 10:00 p. m., according to his testimony on deposition, consuming about five pints of wine. Apparently he left the bars and walked across the street to the Santa Fe property and fell asleep with his legs across one of the rails. At about 11:30 p. m. a Santa Fe boxcar was pushed over his legs severing both of them.

The track where he passed out was a spur located some 200 feet north of Highway 66. The main line of the railroad is parallel to the spur and the spur joins it some 200 feet east of the place where decedent was struck.

The evidence as to decedent's unconsciousness and helplessness at the time of impact is undisputed.

Other evidence in the record suggests that there had been previous problems arising from the presence of Indians and the City Police were shown to have regularly removed drunken Indians from this area. There was no fence or other obstruction to prevent them from roaming the railroad yards. The area was shown to have been relatively well lighted. A photograph which is part of the record depicts bright lights along the main line of the railroad adjacent to the Santa Fe buildings. Also, nearby Highway 66 is shown as a well lighted street.

The accident occurred as two railroad cars were being spotted on the spur line where decedent was lying. The locomotive was pushing them in a westerly direction and thus the headlight was not helpful since the railroad cars were between the engine and the decedent's body. The foreman was, however, in his words, riding "point"; that is, he was at the end of the second railroad car—presumably for the purpose primarily of guiding the engineer, but also for the purpose of watching the track. The train was moving slowly at the time. The foreman stated that the likely reason for his not having seen decedent was that he was on the side of the car opposite to the rail on which the decedent's body was lying, this being the less lighted side.

In granting summary judgment the trial court did not extend his remarks. In the letter which the judge wrote to notify the parties of his decision, he did say:

I have this day entered an Order granting summary judgment in the above-styled case based upon all of the material presented in the record as it stands and the briefs.
I have a particularly acute awareness of the question of contributory negligence on the part of the plaintiff as a matter of law as it is presented in the record allowing the plaintiff the most favorable inferences from all the facts. (See Vol. I, Record on Appeal, p. 75.)

The company's own safety rules require the utmost care in coupling or uncoupling cars and prohibit movement of engines and cars until employees and others are clear of the track. Still another rule requires utmost care to prevent striking persons, animals or vehicles.

Our conclusion that the judgment must be reversed is based on two propositions: first, that the owner of land, whether it be a railroad or other owner, must exercise reasonable care to control its active forces so as to avoid injury to persons who are on its property where the owner has knowledge or should, by the exercise of care, have knowledge of their presence and, secondly, that we consider the last clear chance doctrine to be applicable, thus giving rise to issues of fact whether the defendant knew or should have known of the helpless peril of the decedent and as to whether the defendant failed to exercise care commensurate with the circumstances to prevent the injury.


The rules surrounding granting of summary judgment pursuant to Rule 56 (F.R.Civ.P.) are familiar. It is axiomatic, for example, that the moving party must demonstrate entitlement beyond reasonable doubt and that the courts, trial and appellate, must consider factual inferences tending to show triable issues in a light favorable to existence of such issues. See 6 Moore's Federal Practice §§ 56.15(1), (3), (8), 56.27(1); Avrick v. Rockmont Envelope Co., 155 F.2d 568, 9 F.R.Serv. 56c. 41, Case 7 (10th Cir. 1946); Broderick Wood Products Co. v. United States, 195 F.2d 433 (10th Cir. 1952); Clausen & Sons v. Theo Hamm Brewing Co., 395 F.2d 388 (8th Cir. 1968). Thus, if there is an inference which can be deduced from the facts whereby decedent might recover, summary judgment is inappropriate.

Our sole determination in the case at bar is that the last clear chance doctrine would have allowed the jury to find and conclude that the railroad not only owed a duty to decedent, but violated the duty owed. The record fails to disclose that the trial court considered this legal approach to the case.


Santa Fe's contention that the decedent was a trespasser and is on this account barred from recovering—that it owed no duty to him other than that of refraining from wantonly and willfully injuring him—must be rejected. Such a theory assumes that the trespasser is in essence an outlaw and as such cannot complain if he is injured while trespassing; this doctrine, to the extent that it exists, is limited to conditions in which the owner of land does not have actual awareness of the presence of the trespasser and is not charged with such knowledge. Numerous cases do recognize that there are conditions which impose a duty to be on the lookout at a customary pedestrian crossing or in a populated area. Cf. Catlett v. Colorado & S. Ry. Co., 56 Colo. 463, 139 P. 14 (1914), and see Jones v. Atlanta-Charlotte Air Line R. Co., 218 S.C. 537, 63 S.E.2d 476 (1951), and Small v. Boston & Maine RR., 85 N.H. 330, 159 A. 298 (1932).

In the case at bar the injury occurred on tracks adjacent to a street in a well settled community and in the face of evidence that the railroad had knowledge of the sometime presence of persons thereon. The duty to use care in these circumstances even though the victim was a trespasser is expounded in the Restatement of Torts, Second, § 334 as follows:

Activities Highly Dangerous to Constant Trespassers on Limited Area
A possessor of land who knows, or from facts within his knowledge should know that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death

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