Norfolk and Portsmouth Belt Line R. Co. v. Barker

• Decision Date: 06 March 1981
• Docket Number: No. 781551,781551
• Citation: 275 S.E.2d 613,221 Va. 924
• Parties: NORFOLK AND PORTSMOUTH BELT LINE RAILROAD COMPANY v. Nunior David BARKER, an Infant, etc., et al. Record
• Court: Virginia Supreme Court

Page 613

275 S.E.2d 613

221 Va. 924

NORFOLK AND PORTSMOUTH BELT LINE RAILROAD COMPANY v. Nunior David BARKER, an Infant, etc., et al.

Record No. 781551.

Supreme Court of Virginia.

March 6, 1981.

John E. Clarkson, Norfolk (James C. Howell, Willcox, Savage, Lawrence, Dickson &amp Spindle, P. C., Norfolk, on briefs), for appellant.

John F. Rixey, Norfolk (Roger S. Fraley, Rixey & Heilig, Norfolk, on brief), for appellees.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ. ¹

POFF, Justice.

Nunior David Barker (David), an infant suing by his father and next friend, Ornan E. Barker, and Ornan E. Barker, in proper person, ² filed motions for judgment against Norfolk and Portsmouth Belt Line Railroad seeking damages resulting from injuries David sustained when his foot was crushed beneath the wheel of a railroad car. The actions were consolidated for trial, and a jury returned verdicts for the railroad. Sustaining the plaintiffs' motions, the trial court set the verdicts aside on the ground that one of the jurors had visited the scene of the accident and had conveyed certain information to other jurors which influenced their decisions. At a second trial, the jury awarded David and his father verdicts of $90,000 and $50,000, respectively. The trial court overruled the railroad's motion for judgment non obstante veredicto and entered final judgments for the plaintiffs.

The accident occurred about 5:30 p. m. on October 21, 1975 at the Berkley Avenue railroad crossing in the City of Chesapeake. Two parallel tracks intersect the street at right angles. A train consisting of the engine and 40 to 45 cars was travelling on the eastbound track on a trip from Sewells Point to Berkley yard. The crew received a "stop and stay" signal and brought the train to a halt with the engine near the crossing. Engineer David Myers and brakeman G. A. Jones dismounted and raised the safety gates to permit automobile traffic to cross the tracks. The train remained in its "holding position" and Myers and Jones continued to operate the gates manually for approximately 20 minutes.

David, age 10, and his friend Daniel Jarvis, had been "hunting for bicycle parts" in a city dump opposite the westbound track. They testified that, as the train approached, they laid their bicycles aside and walked onto the westbound track. When the train stopped, David sat down on the outer rail and Daniel on the ties connecting the rails at a distance of 11 feet from the engine. They remained seated for "at least fifteen or twenty minutes" and watched the men as they raised and lowered the gates. When the crew received the signal to proceed, Myers and Jones remounted the engine. David testified that "the colored man said, 'Don't you-all mess around the train,' and we said, 'All right.' " Daniel confirmed his testimony.

None of the four crew members remembered speaking to the boys or seeing them on any part of the railroad right-of-way. Myers said he saw them at a distance of "approximately thirty-five to forty feet from where my engine was." Brakeman Manley Roache, who had remained on the train with conductor Robert Carpenter, saw them on the shoulder of the street "about ten foot" outside the gate. As the train started to move again, Carpenter observed the boys standing beside their bicycles "approximately 10 feet" from the westbound track, and Jones saw them "sitting on their bicycles ... about five feet on the other side of the westbound track." Once the train was underway, Jones "looked a couple of cars back and they were still sitting there and I had to watch the signal ... so I had no reason to believe ... that they would get off their bicycles and go over."

Jones was the only crew member who looked to the rear. He agreed that "(m) aybe from two to four" cars could have been seen without sticking his head out the window and that more would have been visible as the engine entered the right curve. Myers testified that, when the train is travelling on a straight track, "(a) man has to lean out the window to look to see what is on the rear of the train and you are violating a rule if you do that." Marvin Zadnichek, testifying as an expert witness for the plaintiffs, said that "someone looking on that right-hand curve from his perfect position in the cab of that engine could have seen the last car come across the crossing." He didn't know the distance involved but estimated that it was "(m)aybe twenty-five car lengths." Another witness called by the plaintiffs, F. V. Ewell, an experienced conductor familiar with the Berkley crossing, the curve, and the "bushes growing alongside the track", testified that from the point on the curve where the view of the crossing was lost, a person in the engine looking back to the crossing could see "between twenty-eight and thirty car lengths" between the two points.

In compliance with a "red over yellow" signal, the engineer restricted the speed of the train to six miles per hour. David testified that he "waited for the engine to get out of sight" around the curve and "jumped on the train the first time." Daniel's testimony was to the same effect. As a coal car, positioned near the middle of the train, reached "the left-hand side" of the intersection, David grabbed the ladder and "rode it across the intersection and jumped off." He then ran back across the intersection. When the coal car next to the last arrived, he "grabbed ahold of one of the bars and it had grease on it and I slipped and right there my foot went under there." Daniel said that David slipped when he was "about the middle of the intersection."

David acknowledged that he had been jumping on trains since he was "around eight or nine years old", that his father and school friends had warned him about the practice, and that he knew it was dangerous and "you could get hurt by riding a train", but that he was "willing to take that chance".

We consider first whether the jury's finding that the railroad was guilty of primary negligence is supported by the record. No error was assigned to the jury instructions, and the definition of negligence contained in those instructions is the law of this case. Bostic v. Whited, 198 Va. 237, 239, 93 S.E.2d 334, 335 (1956).

The jury was instructed that the railroad owed trespassers the duty of ordinary care; that "one who sees an infant child at or near a place of danger is on notice that an infant ... might, through his thoughtlessness, expose himself in some way to danger of injury"; and that if the jury believed that the railroad "failed to take reasonable action under the circumstances ... to prevent the infant plaintiff from hopping a ride on its train and that such failure ... was a proximate cause of the accident ... and that the infant plaintiff was not guilty of negligence, then you shall find your verdicts in favor of the plaintiffs."

Considering the factual context, we question the propriety of the rule fashioned by these instructions. The area near a train which is moving or about to move is, potentially, a dangerous place. It is always possible that a child in such a place may expose himself to the danger. And the law requires a person who perceives the possibility to assume that the child may, "through his thoughtlessness", commit some careless act or omission. But the law does not require him to anticipate that the child will expose himself to a known danger intentionally. Since David's own testimony shows that he acted intentionally with full knowledge that his act was perilous, the instruction was inapposite.

Moreover, by hopping on the train, David committed a trespass and a class 4 misdemeanor. Code § 18.2-161. The jury was told that the duty owed a trespasser was that of ordinary care and that the duty the railroad owed David was the duty "to take reasonable action under the circumstances ... to prevent (him) from hopping a ride on its train." But, unless a train is to be classified an attractive nuisance along its entire track system (a proposition never urged here), the duty a railroad owes a trespasser does not include an obligation to prevent the trespass which triggers the danger. See Hawkins v. Beecham, 168 Va. 553, 560, 191 S.E. 640, 643 (1937); Brooks v. Norfolk & Western Railway Company, 45 Ohio 2d 34, 340 N.E.2d 392 (1976). "We have been referred to no case where a court has gone so far as to require a railroad company to patrol...