Hughes v. Union Pacific Railroad

757 P.2d 1185, 114 Idaho 466, 1988 Ida. LEXIS 61

• Court: Idaho Supreme Court
• Decided: June 17, 1988
• Docket: 16994
• Status: Published

Opinions

BAKES, Justice.

Appellant, Joe Hughes, age 13, was injured when his feet were caught in the coupler between two railroad cars while he was crossing the Union Pacific Railroad (UPRR) yard in Pocatello, Idaho. Appellant brought suit against UPRR. Upon a special verdict, the jury found that appellant was more than 50% negligent in causing his own injuries. Pursuant to I.C. § 6-801 the district court entered judgment for the defendant UPRR. The court denied appellant’s motion for judgment notwithstanding the verdict and new trial. Appellant appeals. We affirm.

I

The UPRR Shipping and Receiving Yard lies in the heart of downtown and residential Pocatello. It runs for approximately three miles, separating east Pocatello from west Pocatello. Much of the yard is enclosed by a chain link/barbed wire fence, eight feet in height. When the fence was built in early 1984, Roche Moving & Storage Company, a business on the east border of the railroad yard, requested access to the side of their building through the fence. In compliance, UPRR left a 3V2 foot opening next to the Roche building, but no gate was ever installed.

Three roads cross over the railroad yard; at issue here is the Benton Street overpass, which returns to ground level near the north side of the Roche building.

On March 15,1986, appellant, his brother Tom, age 15, and another friend, Dan Gill, also age 15, were walking from the east side of town to a birthday party on the west side. As they were walking on the sidewalk starting over the Benton overpass, Dan suggested instead that they go under the overpass, crossing through the railroad yard as he had done earlier that day.¹ Appellant’s older brother Tom replied, “No. It’s dangerous.” Nevertheless, appellant testified that he thought “it would be a challenge, just kind of be fun,” so appellant and Tom followed Dan and they entered the railroad yard through the gap in the fence next to the Roche building. They continued across the tracks in a relatively straight line, crossing several lines of train cars either by going over the couplers or by crawling under the cars. When crawling under, appellant testified he would make the maneuver near the middle of the car because if the train happened to start rolling, he didn’t want to be close to the wheels.

Eventually they approached the last string of cars. Tom and Dan had seen this last string move while they were still two or three tracks away. In addition, Tom testified he had heard it move. The string was now stopped, but Tom felt uneasy about the situation and said to appellant, “Joe, let’s go back.” Appellant responded, “No. I’ll meet you on the other side.” Tom turned back, exiting the railroad property where he had entered. Tom walked over the Benton overpass alone while Dan and appellant went on. In negotiating the last train, Dan climbed up between two cars, stood on the coupler, and jumped off. Appellant attempted to cross in the same manner, even though he had previously heard loud booms off to his left. As he stood on the coupler, however, the train moved and his feet were injured by the coupling mechanism.

Appellant filed suit against UPRR for his injuries. He alleged that UPRR knew that individuals were crossing its tracks under the Benton overpass and, despite that knowledge, negligently failed to place a gate in the unfenced areas or to place signs on their property warning the public of the dangers of the railroad yard and that trespassing was prohibited. He also alleged that the railroad yard and the equipment maintained thereon were attractive nuisances and that his injuries were caused by UPRR’s negligence in maintaining an unsafe condition.

In its answer UPRR denied plaintiff’s allegations and alleged as an affirmative defense that appellant’s injuries were due to his own negligence. At the close of the evidence, UPRR moved for a directed verdict alleging: (1) that appellant failed to establish his claim under the attractive nuisance doctrine; and (2) that appellant’s own negligence was equal to, if not greater than, UPRR’s as a matter of law. The district court denied the motion for a directed verdict with respect to the negligence issue and advised that it would rule on the attractive nuisance issue via the jury instructions. At the jury instruction conference, the court refused plaintiff’s requested Instruction No. 20 on the attractive nuisance doctrine. In addition, the court instructed the jury that, as a matter of law, the railroad was not obliged to place, signs on its property indicating its status as private property.

The jury returned a special verdict finding appellant more negligent than UPRR. Accordingly, the court entered judgment denying appellant’s claim. Appellant filed a motion for j.n.o.v. or, in the alternative, for a new trial. The motion was denied by order dated May 6, 1987.

II

Appellant raises two issues on appeal. They concern: (A) the trial court’s refusal to give appellant’s requested instruction regarding attractive nuisance; and (B) the instruction given the jury regarding placement of signs indicating a tract of land’s status as private property. Each issue is addressed in turn.

A.

Appellant first argues that the trial court erred in refusing to give his requested Instruction No. 20 regarding the attractive nuisance doctrine. Appellant’s Instruction No. 20 was based upon the Restatement (Second) of Torts, § 339 (1965). Idaho law regarding attractive nuisance is found in Bass v. Quinn-Robbins Co., Inc., 70 Idaho 308, 216 P.2d 944 (1950). As stated in Bass, the attractive nuisance doctrine is applicable under the following circumstances:

“To render the owner liable the structure or condition maintained or permitted on his property, must be [1] peculiarly or unusually attractive to children; [2] the injured child must have been attracted by such condition or structure; [3] the owner must know, or the facts be such as to charge him with knowledge, of the condition, and that children are likely to trespass and be injured; [4] the structure or condition must be dangerous and of such a character that the danger is not apparent to immature minds.” 70 Idaho at 312, 216 P.2d at 945 (bracketed numbers added).

Plaintiff’s requested Instruction No. 20 did not reflect the law as set out in the Bass case. Idaho Pattern Jury Instruction, IDJI 310, correctly incorporates each of the four elements set out in Bass v. Quinn-Robbins Co., supra, and when the factual circumstances justify the giving of an attractive nuisance instruction, IDJI 310, rather than plaintiff’s requested Instruction No. 20, is the correct instruction to be given.²

However, even if plaintiff had requested the correct instruction, the trial court correctly ruled that the evidence introduced at trial did not justify the giving of any attractive nuisance instruction. No evidence was presented at trial to support several of the elements necessary to invoke the attractive nuisance doctrine. As enunciated in Bass, a prima facie attractive nuisance case requires a showing (1) that the condition maintained on the property was peculiarly or unusually attractive to children; (2) that the injured child was attracted by the condition or structure; (3) that the owner knows, or the facts are such as to charge him with knowledge, of the condition and that children are likely to trespass and be injured; and (4) that the condition was of such a character that the danger was not apparent to immature minds (the “danger not apparent” element). Bass v. Quinn-Robbins Co., supra at 312, 216 P.2d 946.

In the instant case, the condition of the railroad yard was not peculiarly attractive to children. Appellant himself testified that he had never seen anyone (let alone children) crossing the tracks in the Benton overpass area; neither had he ever heard of anyone crossing in that area before March 15, 1986, the date of his first crossing. Joe Hughes had never previously tried to enter UPRR's property, nor had he looked for a way to get in. Neither was the railroad yard attractive to children as a “shortcut”; as Dan Gill testified, going over the overpass is “quicker” than going under it. As stated in Holland v. Baltimore & Ohio RR Co., 431 A.2d 597, 602 (D.C.1981), “The overwhelming weight of authority in jurisdictions across the country is that the attractive nuisance exception does not apply as a matter of law in cases where child trespassers are injured by moving trains.” (Citing 19 cases.)

As to the second element, the trial court noted that there was absolutely no testimony that appellant Joe Hughes was in fact attracted to the railroad property by any condition thereon. Rather, as the trial judge noted, the testimony demonstrated conclusively that appellant went upon the railroad’s property at the invitation and challenge of his companion, Dan. Accord McCormick v. Williams, 194 Kan. 81, 397 P.2d 392, 395 (1964), reh’g denied 1965 (“It is necessary that the instrumentality alleged to be an attractive nuisance should have been so situated as to entice the child onto the premises before liability could be imposed.”).

Finally, even though plaintiff argued that there was conflicting testimony (appellant’s mother, Lois Hughes, testified that Joe was a “mama’s boy,” and “really quite naive for his age”), the trial court did not err in concluding that the fourth element of the attractive nuisance doctrine, the “danger not apparent” element, was not met as a matter of law. As the court held in Holland v. Baltimore & Ohio RR Co., 431 A.2d 597 (D.C.1981), accidents involving moving trains fall outside the scope of the attractive nuisance doctrine because children can understand the risk involved in intermeddling with trains. The court stated:

“There are certain obvious conditions which trespassing children can be expected to understand as a matter of law. [Footnote citing the Restatement (Second) of Torts and two moving train cases omitted.] In such cases ‘the possessor is free to rely upon the assumption that any child of sufficient age to be allowed at large by his parents, and so to be at all likely to trespass, will appreciate the danger and avoid it, or at least make his own intelligent and responsible choice.’ W. Prosser, Law of Torts, supra, § 59 at 371 [4th ed. 1971] (footnote omitted).” 431 A.2d at 603.

The court in Holland then held that, as a matter of law, the “danger not apparent” element of attractive nuisance was not met because a moving train is a danger so obvious that any 9 year old child allowed at large would readily discover the dangers involved in coming within the area made dangerous by it.

Regarding the “danger not apparent” element, the trial judge noted that “the injured youngster admitted that he was aware of the danger in crossing the railroad yards.” By his own testimony, the 13 year old appellant admitted he was aware that crossing railroad yards was dangerous and that he had previously seen moving trains in the area beneath the Benton overpass. His knowledge is particularly shown by the manner in which he crossed over and under the railroad cars, crossing at points he deemed safest should the trains move. That he appreciated the risk inherent in the railroad yard is further borne out by his testimony that he followed Dan into the railroad yard because “it would be a challenge,” even though his own brother stated before they went in, “No. It’s dangerous.” Appellant admitted seeing the Roche building, the fence and the Roche trucks; he knew he was entering someone else’s property. Finally, appellant chose not to turn back when his brother warned him and turned back. Appellant heard the booms, which were quite loud according to his own description, yet he continued across the yard and through the strings of train cars. The doctrine of attractive nuisance applies only “to trespassing children who, because of their youth and inexperience, are unable to appreciate the dangers created by certain artificial conditions.” Guilfoyle v. Missouri, Kansas, & Texas RR Co., 812 F.2d 1290, 1292 (10th Cir.1987) (doctrine not applicable to 14 year old); Carlson v. Tucson Racket & Swim Club, Inc., 127 Ariz. 247, 619 P.2d 756, 758 (App. 1980), reh’g denied 1980, review denied 1980 (“Where the plaintiff is of the age and experience to appreciate the danger that produces his injury the [attractive nuisance] doctrine does not apply.” Plaintiff was 16 years old.); Joslin v. Southern Pacific Co., 189 Cal.App.2d 382, 386, 11 Cal.Rptr. 267, 269 (1961), hearing denied 1961 (“The dangers of being near a moving train ... are so patent that we shall not burden this opinion with a discussion of them. Suffice it to say that we believe such dangers should have been obvious to a 12-year-old boy. It is not the purpose of the attractive nuisance doctrine to lend relief to the youngster who knows or is capable of realizing the possible calamitous consequences of a dangerous act, but nevertheless dares to undertake it.”).

Accordingly, we affirm the trial court’s denial of an attractive nuisance instruction. If any element of attractive nuisance is not established, the attractive nuisance claim fails. Bass v. Quinn-Robbins Co., Inc., 70 Idaho 308, 216 P.2d 944 (1950); Joslin v. Southern Pacific Co., 189 Cal.App.2d 382, 11 Cal.Rptr. 267 (1961), hearing denied 1961; Holland v. Baltimore & Ohio RR Co., 431 A.2d 597 (D.C.1981); see also 65 C.J.S. Negligence § 63(90) (1966) (citing cases from ten jurisdictions). Since there was no evidence presented at trial establishing the existence of the essential elements of an attractive nuisance case, the trial court was correct in not submitting an attractive nuisance instruction to the jury.

B.

Appellant next contends that the trial court erred in instructing the jury that, as a matter of law, UPRR was not required to place signs on its property indicating its status as private property. Appellant is mistaken. The only authority cited by appellant is I.C. § 18-7008(9); but, I.C. § 18-7008(9) deals with criminal trespass, and criminal trespass is not an issue in this case. Thus, appellant’s cited authority is inapposite. We have been cited to no authority under the instant facts which requires the owner or possessor of real property to place signs thereon indicating its status as private property. There is Idaho authority to the contrary. Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980) (“We are cited to no rule of law which requires the owner or possessor of real property to place signs thereon indicating its status as private property.”). In any event, appellant was aware that he was on the railroad property, and thus had actual notice, so the issue is essentially moot.

Judgment and orders affirmed. Costs to respondent. No attorney fees.

SHEPARD, C.J., and HUNTLEY and JOHNSON, JJ., concur.

1 . Appellant admitted that he had previously observed train movement in the railroad yard; that he had never seen anyone crossing the tracks in the Benton overpass area; and that he had never heard of anyone crossing in that area before March 15, 1986. Even though no signs were posted indicating the land’s status as private property, appellant had never previously tried to enter UPRR’s property or looked for a way to get in.

2 . Appellant contends, erroneously, that Restatement (Second) of Torts § 339 (1965), was adopted as the Idaho law regarding attractive nuisance in Daniels v. Byington, 109 Idaho 365, 707 P.2d 476 (Ct.App.1985). In Daniels, the sole issue was whether summary judgment was precluded by a genuine issue of material fact. The Court of Appeals did not overrule Bass; indeed, it could not. In fact, the Court of Appeals cited to and quoted from Bass. Restatement § 339 does not state the traditional attractive nuisance doctrine, and does not reflect the law of attractive nuisance in Idaho, as set out in the Bass case. Cf. Bates v. Eastern Idaho Regional Med. Center, 114 Idaho 252, 755 P.2d 1290 (1988) (language of pertinent sections of Restatement (Second) of Torts rejected).