Luck v. Baltimore & Ohio R. Co.

• Decision Date: 10 March 1975
• Docket Number: No. 73--1276,73--1276
• Citation: 510 F.2d 663
• Parties: Alva Laverne LUCK and Jenell A. Baker, a minor child, Appellants, v. The BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 663

510 F.2d 663

166 U.S.App.D.C. 283

Alva Laverne LUCK and Jenell A. Baker, a minor child, Appellants, v. The BALTIMORE AND OHIO RAILROAD COMPANY.

No. 73--1276.

United States Court of Appeals District of Columbia Circuit.

Argued March 4, 1974.

Decided Dec. 5, 1974.

As Amended Feb. 28, 1975.

Rehearing Denied March 10, 1975.

John A. Keats, Washington, D.C., for appellant.

Laidler B. Mackall, Washington, D.C., with whom Scott R. Schoenfeld, Washington, D.C., was on the brief for appellee.

Before TAMM and ROBINSON, Circuit Judges, and HART, ^* Chief Judge for the District Court for the District of Columbia.

TAMM, Circuit Judge:

Plaintiff-appellant Alva Laverne Luck, individually and on behalf of her daughter, the minor-plaintiff Jenell Baker, commenced this negligence action in district court against defendant-appellee Baltimore & Ohio Railroad Co. The case was tried to a jury, which returned a $2,000 verdict for appellant as representative of the minor-plaintiff. Appellant moved for a new trial limited to the determination of damages, see Fed.R.Civ.P. 59(a), and appellee moved for judgment notwithstanding the verdict. The district court denied appellant's motion for a new trial and entered judgment n.o.v. in an opinion and order reported at 352 F.Supp. 331 (D.D.C.1972). Appellant challenges both rulings of the district court. For the reasons stated herein, we reverse the entry of judgment n.o.v. and affirm the denial of a new trial on the issue of damages.

I

The evidence adduced at trial conflicted sharply on almost every material issue. Nevertheless, in reviewing a judgment n.o.v. the court must resolve such conflicts in favor of the party for whom the jury rendered its verdict. See Princemont Construction Corp. v. Smith, 140 U.S.App.D.C. 111, 433 F.2d 1217, 1220 (1970); Alden v. Providence Hospital, 127 U.S.App.D.C. 214, 382 F.2d 163, 165 (1967); 5A J. Moore, Federal Practice 50.07(2) (2d ed. 1974). Viewing the evidence in this light, the jury could have accepted the following account of the incident.

On August 11, 1970, Jenell Baker, then aged 8, saw Tyrone, her six year-old brother, standing on the railroad tracks near their home in a congested residential area of Northeast, Washington. He was playing 'superman,' and apparently was intent upon stopping an on-coming freight train owned by the appellee. Tr. at 12. Jenell ran from the porch of her home to the tracks. She arrived in time to push her brother to safety, but was unable to clear the tracks completely before being struck by some part of the engine. Tr. at 13--14. Although a slight decrease in speed could have given Jenell time to clear the tracks, the train never slowed. Tr. at 16, 80. There was evidence that virtually simultaneously with the accident, the train's crew was seen 'having a conversation' and 'laughing among themselves.' Tr. at 50--51, 77--80. Coupled with the fact that the train did not slow down, the jury could have inferred from this testimony that the crew's lookout was inadequate. There was also testimony from which the jury could have concluded that the railroad knew or had reason to know that neighborhood children frequently played near the tracks. Tr. at 90--93.

Appellant based her case principally on the rescue doctrine, which provides that an injured rescuer may recover from the party whose negligence imperilled the rescuee without proving the breach of a separate duty owed to the rescuer. ¹ See W. Prosser, The Law of Torts, § 44, at 277 (4th ed. 1971). To establish the standard of care owed to Tyrone, the rescuee, appellant relied on the recent case of Smith v. Arbaugh's Restaurant, Inc.,152 U.S.App.D.C. 86, 469 F.2d 97 (1972), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973), in which a division of this court repudiated the common law classification of trespassers, licensees, and invitees, and instead held the owners and occupiers of land in the District of Columbia to a standard of ordinary care. ² Thus, appellant argued that the failure of appellee's crew to maintain an adequate lookout was a breach of duty that imperilled Tyrone, thereby allowing Jenell to recover.

At the close of the evidence, appellee moved for a directed verdict on the ground that Tyrone was a trespasser to whom the railroad's only duty was to prevent a willful, wanton, or intentional injury, and that there was no evidence to establish a breach of this lesser standard of care. Accordingly, appellee argued, Jenell could not recover because the railroad had not negligently imperilled Tyrone. Appellee offered an elaborate theory in response to appellant's reliance on Smith v. Arbaugh's Restaurant, Inc., supra. Appellee reasoned first that the District of Columbia Court Reorganization Act of 1970, 11 D.C.Code § 102 (1973), vested the District of Columbia Court of Appeals with jurisdiction similar to that of the highest court of a state; therefore, by analogy to Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the federal courts were required to apply the rules of decision of the District of Columbia Court of Appeals on matters of local law. Appellee next maintained that since the District of Columbia Court of Appeals has not yet considered the question of the standard of care due from landowners in the District of Columbia, the controlling rule of decision was that announced in M.A.P. v. Ryan, 285 A.2d 310 (D.C.App.1971). In M.A.P. the District of Columbia Court of Appeals stated that it would not be bound by decisions of the United States Court of Appeals rendered after February 1, 1971, but that circuit court cases decided before that date 'constitute the case law of the District of Columbia.' Id. at 312. To complete its argument, appellee asserted that the pre-February 1, 1971 case law unqualifiedly supports the traditional common law distinction between trespassers, licensees, and invitees, placing principal reliance on Firfer v. United States, 93 U.S.App.D.C. 216, 208 F.2d 524 (1953).

The district court denied appellee's motion and allowed the case to go to the jury. Drawing upon ordinary negligence principles, the trial judge instructed the jury that the railroad owed a duty of reasonable care under the facts and circumstances surrounding the accident. He also instructed that Jenell could recover if the railroad breached this duty. Tr. at 242, 247--48. After deliberating for several hours, the jury returned a verdict of $2,000 for appellant as representative of Jenell. ³ Appellant moved for a new trial to redetermine the damages suffered by Jenell, while appellee moved for judgment n.o.v. on the same ground as its motion for a directed verdict. The trial court accepted appellee's argument that Firfer v. United States, supra, rather than Smith v. Arbaugh's Restaurant, Inc., supra, embodied the controlling standard of care. The court then concluded that there was no evidence that appellee had breached the duty owed to the trespasser, Tyrone, nor was there any evidence that appellee had breached any duty that might be owed to Jenell separately, and therefore entered judgment n.o.v. 352 F.Supp. at 333--334. The trial judge also noted that in any event he would have denied appellant's motion for a partial new trial. Id. at 334 n. 8.

II

Appellant vigorously argues that the district court correctly presented the case to the jury under the standard set forth in Smith v. Arbaugh's Restaurant, Inc., supra, and erred in granting judgment n.o.v. Appellee just as steadfastly maintains that the district court properly applied the rule of decision of the District of Columbia Court of Appeals, correctly determined that Firfer v. United States, supra, set forth the controlling legal standard, and did not err in entering judgment n.o.v. Thus, we are asked to define the relationship between the federal courts and the 'local' District of Columbia courts, a highly delicate task of statutory and constitutional interpretation, especially during the interim period of court reorganization when the federal courts and the 'local' courts had concurrent jurisdiction over so-called local matters. See 11 D.C.Code §§ 501--502, 921--923 (1973). However, we need not resolve this difficult issue, for as discussed below, even prior to 1971, owners and occupiers of land in the District of Columbia were held to a duty of ordinary care to child-trespassers whose presence upon the land was or should have been foreseen. ⁴ Consequently, the jury was correctly instructed under either theory of the applicable law.

As early as 1873, the Supreme Court recognized that trespassing children should be treated differently than trespassing adults. In Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873), a case tried as an ordinary negligence action, the Court upheld a judgment in favor of a six year-old child who was injured while playing on the railroad's property. Rejecting the rule that landowners owed no duty of care to trespassers, the Court stated that:

if from the evidence given it might justly be inferred by the jury that the defendant, in the construction, location, management, or condition of its machine had omitted that care and attention to prevent the occurrence of accidents which prudent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff.

84 U.S. at 661, 21 L.Ed. 745. However, the expansion of liability heralded by Stout was considerably limited by the development of the attractive nuisance doctrine, which forced Stout and other child-trespasser cases into the common law categories of persons upon the land by creating the legal fiction that a landowner who maintained a hazard on his property that might be attractive to small children impliedly licensed them to come on the land. See United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615 (1922); Green, Landowners' Responsibility To Children, 27 Tex.L.Rev. 1, 5--9 (1948).

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