John Franich, by George Franich, His Guardian, Ad Litem v. Great Northern Railway Company, a Corporation

260 F.2d 599

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 1958
• Docket: 15469_1
• Status: Published

Opinions

DENMAN, Senior Circuit Judge.

Franich, a minor suing by his guardian ad litem, appeals from a judgment of the District Court in a judge-tried diversity suit removed from a district court of Montana, holding the appellee Railway not liable to him for injuries received while playing in the Railway’s siding adjacent to its railway tracks near the city of Butte, Montana.

The injury occurred when Franich, then about five years of age, while walking on parallel railroad rails stored in the siding for use in repairs to the Railway’s tracks, slipped and fell so that his left foot caught between the rails and his left fibula and tibia were broken.

The pertinent portions of Franich’s statement of points on appeal are that the court erred in holding and deciding that the rails upon which plaintiff slipped and fell were piled at a height no greater than similar rails used as a part of defendant’s railroad track; and that there was no negligence on the part of the railway company in piling the rails at that place or in the manner of piling them; and in not holding and finding that the rails as- piled on defendant’s property constituted an attractive nuisance.

There is no merit to the contention that the evidence did not support the finding that the rails were at a height no greater than similar rails of the railway’s tracks. On the contrary, Franich’s playmate, with him at the time of the injury, testified by gesture that the rails were about five inches above the ground. Also there is testimony from which the Court could infer that storing rails alongside the tracks was a usual and proper thing to do.

The principal question is whether the Court erred in holding that Franich had not sustained his burden of proof that the rails so stored constituted an “obviously dangerous” nuisance inviting him to play on them within the controlling Montana law.

The Montana Supreme Court in the recent case of Nichols v. Consolidated Dairies, 125 Mont. 460, 463, 464, 239 P.2d 740, 741, 28 A.L.R.2d 1216, found that a peculiarly operated passenger elevator inside the Dairies’ grain elevator, was an “obviously dangerous” and “alluring device” to a twelve-year-old boy. It held the Dairies liable for injury to the boy while mishandling the elevator under its long-established rule of liability where “the injury was caused by an unguarded, dangerous machine, or other dangerous thing peculiarly attractive to children of the class to which the injured one belongs.” (Emphasis supplied.)

A child walking on the rail of one of the railroad’s tracks may slip and break his ankle, yet if the railway were liable for such an injury it would have to fence in a greater part of its rights of way, an impossible task where they pass through city streets which the railroad cannot fence off. The situation is like that in Nixon v. Montana, W. & S. W. Ry. Co., 50 Mont. 95, 145 P. 8.

There, the Montana Supreme Court denied liability for an injury to a child while attempting to ride by hanging on the rear of a moving train on her way home from school. It stated the principle controlling in such eases by quoting at page 102 of 50 Mont, at page 10 of 145 P. the following from a Texas decision [San Antonio & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S.W. 28]:

“It has been contended broadly that when an owner places * * * anything upon his property which is attractive to others and one is thereby induced to go thereon, the invitation may be inferred as a fact by the court or jury. Now, since it is manifest that to some classes of persons, such as infants, the things ordinarily in existence and use throughout the country, such as rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks, etc., are both attractive and dangerous, it is clear that the adoption of such a broad contention would be contrary to reason, lead to vexatious and oppressive litigation, and impose upon the owners such a burden of vigilance and care as to materially impair the value of property and seriously cripple the business interests of the country. Therefore it has been generally held that the invitation cannot be inferred in such cases.” (Emphasis supplied.)

We think the trial judge who heard the testimony as to how the rails were stored was justified in holding that they neither created an obviously dangerous nuisance peculiarly attractive to children, nor that they constituted an implied invitation to Franich to play on them.

The judgment is affirmed.