Mann v. Kentucky & I. Terminal R. Co.

• Decision Date: 16 December 1955
• Citation: 290 S.W.2d 820
• Court: United States State Supreme Court — District of Kentucky
• Parties: Charles MANN, a Minor, Appellant. v. KENTUCKY & INDIANA TERMINAL RAILROAD COMPANY, Appellee.

Page 820

290 S.W.2d 820

Charles MANN, a Minor, Appellant. v. KENTUCKY & INDIANA TERMINAL RAILROAD COMPANY, Appellee.

Court of Appeals of Kentucky.

Dec. 16, 1955.

Rehearing Denied June 22, 1956.

A. Scott Hamilton, Louisville, for appellant.

Louis Seelbach, Louisville, for appellee.

STANLEY, Commissioner.

Charles Mann, two and a half years old, left his home adjoining the switchyard of the appellant, Kentucky & Indiana Terminal Railroad Company, in Louisville, and went out on the tracks, apparently following his dog. His grandmother and aunt rushed to his rescue; but before they could reach the child, he was struck by a tank car running unattached and unattended down the yard. He lost his right arm at the shoulder and his right leg at the hip. At the conclusion of all the evidence in a suit for damages, instituted in his behalf against the Railroad the court directed a verdict for the defendant.

A comprehensive view of the scene of the accident and surrounding conditions is given us by maps and photographs, but it is not easy for the writer to pen picture them.

The tracks, which are called a 'classification yard', fan out northwardly from Market Street for perhaps three-fourths of a mile. At its greatest width there are 48 tracks in the yard. Sometimes as many as 1,000 cars a day are moved in it. Rowan Street is bisected by the yard, which is about 640 feet wide at that place. There is no street or public way across, over or under these many railroad tracks between 30th and 32nd Streets except underpasses at Market Street, two blocks to the south, and Bank Street, several squares north. The most important factor in this case is that there is no fence or other kind of barrier at the end of Rowan Street on the east side of the tracks. It is level with the tracks, open and unprotected in any manner. The way is quite like a street intersection. But on the opposite, or west side of the switchyard, a high, strong, net-like, woven wire fence has been erected in the rear of residences fronting on 32nd Street and extended across that end of Rowan Street. An improvised stile, or ladder, at that end of Rowan Street enables persons to go over the fence. Thus, on the east side the yard is open and offers temptation to a pedestrian on Rowan Street to cross the tracks rather than detour two blocks to the underpass at Market Street. There is a sign post at the end of the street warning that the yard is private property and that trespassing is dangerous and forbidden. It was proved in this case that railroad yard employees and others customarily parked their automobiles there at the end of Rowan Street. Workmen at a large industry on that street immediately west of the yard passed to and from it from the east side.

Another important fact is that 35 to 40 children live in the one block of Rowan Street just east of the tracks with its open and unprotected end.

In making up trains and distributing cars, the method of operation is for the locomotive to start the cars northwardly and let them roll by gravity down onto the several tracks as desired. Normally, as on this particular occasion, no brakeman rides the cars and there are no warning or signal devices used on them. They make but little noise.

The injured child, Charles Mann, lived in a cottage on the corner of the open, unprotected end of Rowan Street and the railroad yard. The house seems to be right on the railroad boundary line. There was a picket fence around a narrow front yard except on the east side where there was a loose hedge. Thus, there was an imminent and deadly hazard for a child in this house and others within the block. This little child had gone 125 feet from the front gate of his home to the place on the third track, about 37 feet from the end of the street, where he was struck by the coasting railroad car.

The appellant contends that the railroad company was negligent in maintaining its yard bisecting the street, and conducting its operations in a dangerous manner in a thickly populated area, where many children lived, without having taken reasonable precaution to protect them or the public, whom they knew trespassed upon their property.

We summarize the evidence concerning knowledge of the defendant of the presence of people in the yards, which the appellant argues imposed the duty of anticipation. Switchmen operating the yards admitted knowledge of the density of the population, including many children on Rowan Street. As we have stated, the trainmen regularly parked their automobiles at the end of the street while they were at work. There were one or more footpaths across the yard between the ends of the street which were habitually used by the public, both men and boys. A trainmen's shanty was approximately in this line of travel and about the center of the yard. The evidence introduced by the plaintiff shows that children were frequently in the yard, and that sometimes they were run off and sometimes not. The railroad employees admitted seeing men and boys in the yard but denied they were in the habit of crossing the tracks or frequenting the yards except to walk along the side of the east track. The yards were inspected once or twice a week, the three patrolmen constantly checked the seals and conditions of the cars and looked out for thieves. Whenever they saw children in the yard, they chased them off.

We approach the consideration of the case by noting that if there was negligence on the part of the railroad, it was not in relation to discovering the peril of a trespassing child or to any duty after such discovery. We are concerned with the matter of duty to the child before he strayed onto the tracks. The question is presented by the appellant, in general, as being whether it was proper for the trial court to take away from the jury the right to determine whether or not the defendant took reasonable precautions for the safety of children who might go upon the tracks and there be exposed to the danger inherent in the operation of this large railroad switchyard where cars are permitted to run freely and uncontrolled with little noise and without any safety or warning devices thereon. The railroad company contends there was no duty upon it to fence the yards and that it was not required as a legal duty to anticipate the presence of the child on the track; also, that there is no element of negligence in gravity switching in its own private yards. It is quite familiar law that conduct which may be free from negligence where a normal adult is affected may be culpable negligence where it is an infant who has not reached the age of discretion. Tupman's Adm'r v. Schmidt, 200 Ky. 88, 254 S.W. 199.

We may suppose that a person capable of contributory negligence who trespassed upon these tracks would ordinarily be barred from recovering damages for resulting injury. See Annotation, 47 A.L.R. 863. But we are concerned here with an infant completely incapable of discretion and wholly irresponsible for his own act. Generally, the doctrine of nonliability for injuries to trespassers applies to infants. Gray v. Golden, 301 Ky. 477, 192 S.W.2d 371. However, there are exceptions to this doctrine, namely, (1) where liability may be imposed under the law of attractive nuisance, and (2) where one maintains on his premises 'something dangerous to children and so exposed that there is likelihood of their coming in contact with and being injured by it.' Liability under this latter exception rests upon reasonable anticipation that children might be exposed to danger, and the duty to take precautions against their going on the premises. It is under this concept of legal duty that the present case rests. As stated in 65 C.J.S., Negligence, Sec. 28, 'When the owner knows or should know that children are likely to trespass on a part of his land on which he maintains a condition which is likely to be dangerous to them, he may be held liable for harm resulting to them therefrom, especially where adequate safeguards may be provided at a comparatively small cost and without impairing the utility of the instrumentality or condition. However, he is not required to provide against remote or improbable injuries.'

There is some distinction between the second rule of exception and the first. It has been called an intermediate rule as between attractive nuisance and conventional liability to a trespasser, but it has been regarded by this court as an extension of the attractive nuisance doctrine. Lyttle v. Harlan Town Coal Co., 167 Ky. 345, 180 S.W. 519, 521. The distinction in duty rests on the proposition: 'If the place or appliance cannot be said to possess a quality calculated to attract children generally, it must be shown that the defendant's knowledge the injured child or others were in the habit of using it.' 38 Am.Jur., Negligence, Sec. 145. As in the law of negligence generally, legal duty in respect to action or nonaction generally in man's relation to other persons--pertinently in the use of property--is proportioned to the magnitude of peril to be reasonably apprehended from an act or an omission. Foresight or reasonable anticipation is the standard of diligence, and precaution a duty where there is reason for apprehension. Knowledge of the presence of children in or near a dangerous situation is of material significance. Shearman and Redfield on Negligence, Sec. 24.

In the case at bar, the proven negligence, if any, is in failing to use reasonable care or diligence to maintain some safeguard against immature children going on dangerous premises where it might reasonably have been anticipated they would go and be hurt.

Illstrative of the application of the second principle of exception are cases where a person places explosives accessible to children of tender years, such as Jones Savage Lumber Co. v. Thompson, 233 Ky. 198, 25 S.W.2d 373; and Miller v. Chandler, 168 Ky. 606, 182 S.W. 833, 834, in which it is said:

'Appellee at the time was only 8...