Nolley v. CHICAGO, M., ST. P. & PR CO.

• Decision Date: 08 August 1950
• Docket Number: No. 13982.,13982.
• Citation: 183 F.2d 566
• Parties: NOLLEY v. CHICAGO, M., ST. P. & P R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

183 F.2d 566 (1950)

NOLLEY v. CHICAGO, M., ST. P. & P R. CO.

No. 13982.

United States Court of Appeals Eighth Circuit.

August 8, 1950.

Irving H. Green, Minneapolis, Minn., for appellant.

C. O. Newcomb, Minneapolis, Minn. (A. C. Erdall and S. W. Rider, Jr., Minneapolis, Minn., were with him on the brief), for appellee.

Before SANBORN, JOHNSEN and COLLET, Circuit Judges.

JOHNSEN, Circuit Judge.

A nine year old boy undertook to "hop" a moving freight train in the yards of the Milwaukee Railroad at Minneapolis, and in the incidents which occurred he lost a leg.

In a suit against the Railroad under Minnesota law for negligence, he alleged (1) that the yards constituted an attractive structure or condition, with unreasonable hazards to children, against the dangers of which the Railroad had failed to exercise proper care to protect him; and (2) that the defendant further had been negligent in having proceeded to move the train "with greater speed," thus "causing the plaintiff to be thrown therefrom." On the trial he abandoned the theory that his injury was occasioned by an increase in the speed of the train and shifted to the opposite theory that he had been hurt because the train had been brought too quickly to a stop, through an emergency application of its brakes, so that he was jerked off the car.

The trial court directed a verdict for the defendant at the close of all the evidence, and the plaintiff has appealed.

On plaintiff's first theory of liability, Minnesota has adopted the rule of Restatement, Torts, § 339, that "A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein."

This has been the rule in Minnesota since 1935. See Gimmestad v. Rose Bros. Co., 194 Minn. 531, 261 N.W. 194; Middaugh v. Waseca Canning Co., 203 Minn. 456, 281 N.W. 818, 819; Weber v. St. Anthony Falls Water Power Co., 214 Minn. 1, 7 N.W.2d 339, 341; Schmit v. Village of Cold Spring, 216 Minn. 465, 13 N.W.2d 382, 384, 154 A.L.R. 1325; Ewing v. George Benz & Sons, 224 Minn. 508, 28 N.W.2d 733, 735; Heitman v. Lake City, 225 Minn. 117, 30 N.W.2d 18, 23.

There was evidence in the present case tending to establish the conditions of clauses (a) and (b) of the rule, sufficient perhaps to have entitled those questions to go to the jury as elements of plaintiff's first theory of liability. But we are not able to say that the evidence intended to establish the condition of clause (c) was such that the court under Minnesota law was required to have left this element also to the jury and so had no right to direct a verdict on the basis of it.

The comment in the Restatement on § 339 makes this explanation of clause (c): "The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado."

In the ordinary situation, the question of whether an injured child understood or appreciated the danger of death or serious bodily injury from the attractive structure or condition involved will probably generally be for the jury. But the Minnesota Supreme Court has declared in a number of such cases that the facts of the particular situation left no room reasonably to contend that the injured child did not appreciate the dangers of the condition to which he had exposed himself.

Thus, in Mehalek v. Minneapolis, S. P. & S. S. M. Ry. Co., 105 Minn. 128, 117 N.W. 250, 251, the court said: "According to the undisputed evidence, appellant's son was a nine year old schoolboy, of more than ordinary intelligence, lived only a block from the Twenty-fifth avenue crossing, and his only object in going on the crossing was for the purpose and with the intention of catching on the train and getting a ride. He and other boys had persistently followed this course for three or four years. It is idle to say that he did not know it was dangerous to attempt to ride on the train, or that he did not know it was wrong to do so. Although he testified to that effect, his very conduct in the manner of crossing the tracks and getting on the train indicates that he knew he had no right to do so."

Similarly, in Powers v. Chicago, M. & St. P. Ry. Co., 57 Minn. 332, 59 N.W. 307, 308, the court took the view that it was "beyond question" that the negligence of the child himself was the immediate cause of his death and said: "The plaintiff's son, (was) a bright, intelligent boy, over 13 years of age, accustomed to be about the station, and familiar with the moving of trains * * *. That, in getting on and off and standing on the step while the train was in rapid motion, he was doing perilous things, putting himself in a position of great danger, must be apparent to anyone who has seen railroad trains moving, and must have been as well known to a boy of his age, intelligence, and experience, especially one who had been, as he had been, warned by his father not to get on and off trains when in motion, as to any one." See also Twist v. Winona & St. P. R. Co., 39 Minn. 164, 39 N.W. 402, 405, 406, 12 Am.St.Rep. 626.

In the present case, plaintiff's testimony and manner of handling himself on the stand (he was still nine years old at the time of the trial) revealed him as a bright, alert and intelligent boy familiar with the yards involved and with all the activities conducted in it. For six years he had been living only half a block from the tracks at his grandmother's house. He attended a public school located approximately the same distance from the yards, where he was in the fourth grade. He had frequently been given the responsibility of taking his younger brother and sister through the metropolitan traffic and on street cars to another part of the city to visit his mother.

The Milwaukee yards consisted of a 113-foot right of way, extending for 3 miles in an easterly-westerly direction, depressed some 20 feet below street level, and with 37 street bridges or viaducts crossing over it. An ordinance of the City of Minneapolis enacted many years before had required the Railroad thus to depress its tracks. The portion of the yards where plaintiff's accident occurred was in a heavily populated area and had numerous industries adjacent to the tracks.

Plaintiff admitted that both his grandmother and his mother had warned him not to go down in the yards; that his teacher also had told him not to go around the tracks because it was a dangerous place; that he knew that if any member of his school patrol saw him going toward the depression they would stop him or report him to his teacher; and that he had been told by an engineer on a previous occasion when he was playing in the yards to keep off the railroad property as he might get hurt. In spite of all this, he and some of his companions would crawl over or through the fence on the properties above the depression and slide down the bank to the tracks, but they generally ran to cover or out of the yards if any railroad man attempted to approach them or hollered at them.

On the stand plaintiff attempted to claim that he did not realize prior to his accident that the yards were a dangerous place, but cross-examination elicited from him that he knew he "shouldn't be trying to get on to a moving train." Furthermore, it appeared that in a deposition taken before trial, when he had been asked, "You knew it was dangerous?" he had answered, "Yes, sir." And at the time he made a dash for the moving train, he in seeming daring had exclaimed to his companions, "Watch me" or "Watch this."

On all these facts and circumstances, as we have suggested, we are unable to say that the trial court was in error in holding that by the standards of Minnesota law there was no substantial evidence that could support a finding that plaintiff did not comprehend or appreciate the danger of what he attempted to do. In the Mehalek case, quoted above, 117 N.W. at page 251, the Minnesota Supreme Court had refused to give recognition to the testimony of the injured boy (nine years old as here) that he did not realize the dangers of hopping a moving train, as against the facts and circumstances of the evidence, and had declared that "It is idle to say that he did not know it was dangerous to attempt to ride on the train, or that he did not know it was wrong to do so." Here, it was the trial court's opinion that a similar view was compelled on the facts shown, and, as the court observed, even plaintiff's very exclamation, "Watch me" or "Watch this," as he made his dash for the moving train, could hardly reasonably be regarded as expressing anything except a recognized act of daring or bravado.

The trial court held also on plaintiff's first theory of liability that, apart from whether plaintiff knew that he was doing a reckless thing, the evidence...