Rasmussen v. Palmer

• Decision Date: 15 April 1943
• Docket Number: No. 171.,171.
• Parties: RASMUSSEN et al. v. PALMER et al.
• Court: U.S. Court of Appeals — Second Circuit

134 F.2d 780 (1943)

RASMUSSEN et al. v. PALMER et al.

No. 171.

Circuit Court of Appeals, Second Circuit.

April 15, 1943.

Rubin & Rubin, of New Haven, Conn., for plaintiffs-appellants.

E. R. Brumley, of New York City (R. J. Seifert, of New York City, and R. W. Pickard, of New Haven, Conn., of counsel) for appellees.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

Harry Rasmussen, Jr., a boy eleven years old, was playing with two other boys in the early evening of September 9, 1941, in the railroad yard in New Rochelle, N. Y., which the defendants operated as trustees of the owner in reorganization, the New York, New Haven & Hartford Railroad Company. He climbed to the top of a freight box car then standing in the yard and as one of his arms was raised when he pretended to shoot a toy pistol it struck a wire strung a half inch over five feet above the roof of the car. This was a live wire carrying an electric current of eleven thousand volts and the boy was so injured that one of his arms and one of his legs had to be amputated.

This suit was brought in the state court by Harry Rasmussen, the father of the boy, as guardian ad litem for his son and individually to recover his own damages. It was duly removed to the District Court for the Southern District of New York where it was tried to a jury. At the close of the plaintiff's case the defendants moved for a directed verdict. The motion was granted and judgment on the verdict was entered. From this judgment the plaintiff has appealed.

The car in which the boy was hurt was standing in the yard some 150 feet from where the public had for years been crossing the yard to make use of a short cut between two public streets bordering the railroad property in that vicinity. There was a weather-beaten, partly legible sign nearby which had been used to forbid trespassing upon the railroad's property, but this sign had been practically ignored for years. It must be now taken as amply proved that the public not only used the yard as a short cut but also that children frequently used it to play in regardless of the sign and to the knowledge which must be imputed to the defendants. There must also be imputed to the defendants knowledge that one boy had climbed a freight car in that yard while playing there a few years before and had been fatally injured but just how he was hurt did not appear. There was also the evidence of one witness that he had seen children climbing on freight cars twice in eighteen years and of another who had lived near the yard for thirty-eight years who testified that she had seen the one some years before who had been so injured that he died and that she had seen no others until the Rasmussen boy was hurt. The other evidence, considered with what has been specially mentioned, made it plain that such children as the boy who was hurt before the accident were permitted by the defendants without objection to play in the railroad yard frequently; that no fence to keep them out was maintained and no watchman made any attempt to do so; and that at extremely rare intervals, something like three times in eighteen years or so, boys had been seen to climb upon the cars and that one of those boys had been mortally hurt in so doing.

In such a case we are, of course, to apply the state law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. Under the applicable New York law this boy was not a trespasser while he was playing in the railroad yard but was, because of a long acquiescence of the defendants in the playing of children there, a licensee to whom the defendants owed the duty to exercise reasonable care to protect him from injury while so engaged. Zambardi v. South Brooklyn R. Co., 281 N.Y. 516, 24 N.E.2d 312; Lamphear v. New York Central & H. R. R. Co., 194 N.Y. 172, 86 N.E. 1115; Skzypek v. Long Island R. Co., 275 N.Y. 508, 11 N.E.2d 318. Nor does § 83 of the New York Railroad Law, Consol.Laws, c. 49, or § 1990 of the New York Penal Law, Consol.Laws, c. 40, deprive such a person of the right to have such care exercised for his protection. Zambardi v. South Brooklyn R. Co., supra.

There being no conflict in the evidence as to what the defendants did or failed to do, the decisive question is whether under New York law there was any debatable issue to make what was reasonable care a question for the jury under the circumstances shown here. The question may be put as follows: Having given the boy a license to play in the railroad yard could the defendant leave a box car there with other cars on one of its tracks with a live high voltage wire only what we may call five feet from its roof and within the reach of an eleven year old boy who might climb to the roof of the car while playing in the yard and still be in the exercise of reasonable care toward the boy?

Since Walsh v. Fitchburg R. Co., 145 N.Y. 301, 39 N.E. 1068, 27 L.R.A. 724, 45 Am.St.Rep. 615, it has been clear that what has been called the doctrine of attractive nuisance is not applicable in New York. Ordinarily in New York "the only duty which an owner of land owes to a trespasser or bare licensee is to abstain from affirmative acts of negligence or not to injure intentionally such person." Morse v. Buffalo Tank Corp., 280 N.Y. 110, 19 N.E.2d 981, 983. But the avoidance of whatever may be "affirmative acts of negligence" may require in practice more or less as circumstances vary. When a licensee going upon the land may be imperiled from a concealed danger the owner or possessor of the property is bound to protect him from it by taking whatever steps to that end are, under the circumstances, reasonable in the face of this risk. Travell v. Bannerman, 174 N.Y. 47, 66 N.E. 583. See, also, Perry v. Rochester Lime Co., 219 N. Y. 60, 113 N.E. 529, L.R.A.1917B, 1058.

Had there been no live wire in the yard this case would be clearly within the principle of Walsh v. Fitchburg R. Co., supra. Leaving a box car...