Summary
In Brooks v. Norfolk W. Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392, the court was faced with a case wherein a ten-year-old boy was injured by a train.
Summary of this case from Boydston v. Norfolk Southern Corp.Opinion
No. 75-236
Decided January 14, 1976.
Negligence — Railroads — Trespasser injured on right-of-way — Damages recoverable, when — Wanton misconduct by railroad — Evidence insufficient to prove, when.
1. Where the status of plaintiff is that of a trespasser on a railroad right-of-way at the time certain injuries were sustained by him, recovery can only be had against the railroad if the record demonstrates wanton misconduct on its part in connection with the accident.
2. A minor, who is injured while trespassing on a railroad right-of-way, cannot recover damages from the railroad for such injuries upon a complaint alleging wanton misconduct which is supported solely by evidence that the railroad failed to take action to prevent the trespass.
APPEAL from the Court of Appeals for Cuyahoga County.
On August 28, 1969, plaintiff, a ten-year-old boy, and two young friends were walking north on the east side of Cherry Avenue in Canton to a boys club. On the east side of Cherry Avenue there is located the city of Canton Jackson Park, with a play area for children. The park is bisected by a right-of-way of the Norfolk Western Railway Company which accommodates a single railroad track running generally from the northeast in an east-by-south direction as it crosses Cherry Avenue. The club, which was the destination of the three boys, is located on Cherry Avenue north of this right-of-way.
On the day in question when the boys reached the grade crossing, a Norfolk Western freight train was moving in a westerly direction across Cherry Avenue and vehicular and pedestrian traffic on Cherry Avenue was halted. While waiting for the train to clear the crossing, the boys played in a grassy area of the park east of the Cherry Avenue easterly sidewalk and south of the track. They threw a ball around and wrestled. After five or six minutes the plaintiff, Tyrone Brooks, went to the slowly moving freight train and hopped on a boxcar at a ladder. In a matter of seconds he fell from the car and his right foot slipped under the wheels of the train. His right foot was crushed necessitating the surgical amputation of a portion of the foot.
Suit was filed on Tyrone Brooks' behalf for damages against the Norfolk Western Railway and the city of Canton in the Court of Common Pleas of Cuyahoga County. The amended complaint, in part, alleged that:
"2. This area (Jackson Park) was maintained by the city of Canton which allowed the Norfolk and Western Railroad to build a line of track through the park while allowing the park facilities to remain open and free for public use.
"3. There were no facilities of any kind by way of fencing in the area of the track through the heart of the park at this time.
"4. By virtue of the compound negligence and wanton misconduct of the defendants the minor plaintiff, Tyrone Brooks, had his right foot and leg crushed beneath a train traversing the right-of-way through Jackson Park."
Upon separate motions by each of the defendants, after the issues were joined, the Common Pleas judge dismissed the complaint as to each defendant. On appeal, the Court of Appeals reversed the dismissals and remanded the case for trial. Trial was thereupon had before a second Common Pleas judge. Upon conclusion of plaintiff's case, motions for directed verdicts were made on behalf of each defendant and were overruled. A joint verdict was returned in favor of Tyrone Brooks and against both defendants in the amount of $25,000. Separate appeals were perfected in the Court of Appeals and a motion to consolidate the appeals was overruled. After a hearing, final judgment was entered in favor of the city of Canton on the basis of sovereign immunity. In the railroad's appeal, the Court of Appeals reversed the judgment of the trial court for various alleged prejudicial errors, and remanded the case for a new trial.
The cause is now before this court by reason of our allowance of Norfolk Western's motion to certify the record.
Mr Salvatore P. Jeffries, for appellee.
Messrs. Arter Hadden and Mr. Hugh M. Stanley, Jr., for appellant.
The sole item in controversy in this appeal is whether the record before us is supportive of the submission to a jury of the issue of wanton misconduct on the part of Norfolk Western Railway.
If the record provides no basis for a finding of wanton misconduct, the trial court should have granted the motion for a directed verdict by defendant Norfolk Western. Absent such action by the trial judge on such a record, the Court of Appeals should have entered final judgment for this defendant.
The Court of Appeals correctly concluded that the plaintiff was a trespasser as a matter of law. This being the status of plaintiff at the time of the accident, recovery could only be had against Norfolk Western if the record reflected wanton misconduct on its part in connection with the accident. The Court of Appeals found that "[t]he record shows that the issue of whether the defendant was guilty of willful and wanton misconduct or not was a question of fact for the jury." This finding, as demonstrated by the court's opinion, is erroneous in two respects: (1) there is no allegation of willful misconduct in the amended complaint, and (2) the record is not supportive of wanton misconduct on the part of the railway company.
Justice William B. Brown, for this court majority in Bailey v. Brown (1973), 34 Ohio St.2d 62, defines "wanton misconduct." Paragraph two of the syllabus thereof states:
"`Wanton misconduct' is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury."
Similarly, this court, in paragraph two of the syllabus in Roszman v. Sammett (1971), 26 Ohio St.2d 94, decided that:
"To constitute wanton misconduct justifying recovery, the conduct of the tort-feasor must be more than negligent: it must be such conduct with knowledge of a dangerous situation liable to cause injury to others, as manifests a heedless disregard for or indifference to the rights of others or for the consequences, i.e., such conduct as manifests a disposition to perversity."
The record before us establishes that at the time plaintiff hopped the moving freight car, Norfolk Western was operating its train in a lawful manner. The record is devoid of any evidence of excessive speed or speed too slow for the circumstances. It is likewise silent as to whether members of the train crew were aware of the presence of the trespassing plaintiff before, at the time of, or after the accident; or whether any of the train crew members were in a position to see, had they looked, the plaintiff's position as a trespasser at a time when steps could have been taken to avoid the accident. Finally, there is no evidence in the record, direct or inferential, under the Bailey v. Brown, supra, test, which indicates that Norfolk Western knew that the operation of its freight train in Canton on its right-of-way on August 28, 1969, would, in all common probability, result in injury to anyone.
The record does show clearly that Norfolk Western did nothing to prevent trespassing on its right-of-way. However, failure to prevent trespass is not negligence in Ohio. Morgenstern v. Austin (1959), 170 Ohio St. 113. Too, for many years it has been the law of Ohio that the failure of a railroad to fence its right-of-way against trespassers is not negligence for the reason that there is no duty to do so by statute or at common law. Lake Shore Michigan So. Ry. Co. v. Liidtke (1904), 69 Ohio St. 384. There is no duty on the railroad to provide watchmen or other personnel to prevent trespass. See Scibelli v. Pennsylvania R.R. Co. (1954), 379 Pa. 282, 108 A.2d 348; Kline v. New York, New Haven Hartford R.R. Co. (1970), 160 Conn. 187, 276 A.2d 890.
It is our determination, and we so hold, that for the reasons stated heretofore, the failure of Norfolk Western Railway to prevent trespass in the cause before us does not constitute wanton misconduct, nor even negligence. Further, it is our determination, and we so hold, that there is absolutely no other evidence in the record supportive of the plaintiff's allegation of wanton misconduct against Norfolk Western Railway, and the Court of Common Pleas should have granted defendant's motion for a directed verdict at the conclusion of plaintiff's case.
Accordingly, that part of the judgment of the Court of Appeals remanding this cause to the Common Pleas Court for a new trial is reversed and final judgment entered for the defendant, Norfolk Western Railway Company.
Judgment reversed, and final judgment for defendant.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.