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June 16, 1977

MYRON ALSTON, ET AL., Plaintiffs,

The opinion of the court was delivered by: GASCH

 This personal injury action involves a 1972 accident in which the minor plaintiff, Myron Alston, then nine years of age, sustained a serious injury to his left leg while admittedly attempting to "hop" a railroad car owned and operated by defendant Baltimore & Ohio Railroad Company ("B&O"). As a result of this injury, Myron's leg was surgically amputated above the knee. Suit was brought on his behalf by his father, Preston Alston, who sought also to recover for certain expenditures which he has personally incurred in connection with Myron's injury. After a jury verdict was returned in the amount of $608,000, *fn1" defendant B&O moved for judgment notwithstanding the verdict or in the alternative for a new trial. Upon careful study of the matter and for the reasons fully set forth below, the Court finds that the defendant's motion for judgment notwithstanding the verdict should be granted.


 The accident giving rise to this lawsuit took place on June 27, 1972, in the vicinity of 9th and Kearney Streets, N.E., Washington, D.C. On that day, Myron Alston and some of his young friends were playing on and near certain premises owned and operated by defendant B&O Railroad Company. These lands surround several sets of railroad tracks used by defendant for both freight and passenger trains; they extend north and south of Kearney Street, and west from 9th Street, for several hundred yards.

 At the point at which the accident occurred, there are two sets of parallel tracks running in a long north-south curve. While Myron and his friends were playing on defendant's land adjacent to these two tracks, *fn2" a freight train consisting of almost one hundred cars *fn3" approached on the track farthest from the children and slowed to a halt. *fn4" Myron then walked up to the train and "hopped" onto one of its boxcars. *fn5" At that time, the train was stationary in such a position that both the forward and rear portions of it extended beyond either end of the sharp curve of the track and were completely out of sight from Myron's position on the boxcar. *fn6" A short time later, after the train had begun to move, Myron jumped off of the side of the boxcar but failed to clear the tracks; his left leg was severely injured by the wheels of the train and required surgical amputation above the knee.


 In bringing this action on Myron's behalf, his father charged defendant B&O Railroad with breaching its duty of reasonable care in connection with its maintenance and control of the lands upon which the accident occurred. He asserted that the defendant should have known that children such as his son often frequented these particular premises and that there existed a foreseeable danger that an accident such as Myron's might inevitably one day take place. Only through the defendant's negligence, he insisted, was such a tragedy allowed to occur. Specifically, he charged the defendant with negligently failing to erect all necessary fences, barricades, or warning signs sufficient to deter children such as Myron from entering onto the property in question and from exposing themselves to its foreseeable hazards. Defendant's failure to take these precautions was particularly negligent, Mr. Alston contended, in light of the special and well-known attraction which these lands held for children such as his son.

 From the outset of this litigation, B&O Railroad has taken the position that it owed no duty to Myron under the circumstances presented and thus was not negligent as a matter of law. *fn7" In its pretrial motion for summary judgment, it interposed the defense that Myron fully appreciated the dangerousness of his actions and supported this position with reference to certain deposition testimony in which Myron admitted to having known it was dangerous to "fool around with trains." *fn8" Such appreciation on Myron's part, defendant argued, operated as an absolute bar to recovery as a matter of law *fn9" and made the presentation of any further factual evidence at trial unnecessary. *fn10" Although this Court found defendant's arguments (and the deposition testimony upon which they were based) to be compelling, it felt that the better course was to afford plaintiffs the fullest possible opportunity to secure and present any countervailing evidence on this particular element of the case, *fn11" as well as upon the specific charges of negligence which they had raised. It was -- and remains -- this Court's view that the summary judgment stage is an inappropriate juncture for the determination of issues such as those presented in this lawsuit. See, e.g., Best v. District of Columbia, 291 U.S. 411, 415-16, 78 L. Ed. 882, 54 S. Ct. 487 (1934); Hankins v. Southern Foundation Corp., 216 F. Supp. 554, 558 (D.D.C.), aff'd, 117 U.S. App. D.C. 150, 326 F.2d 693 (1963). Accordingly, defendant's motion for summary judgment was denied and the plaintiffs were allowed an opportunity to develop fully at trial all issues presented -- including Myron's asserted appreciation of the risk which he undertook when he "hopped" defendant's train.


 At trial, the plaintiffs adduced much evidence in an effort to support their theory of negligence. Viewed in the light most favorable to them, *fn12" this evidence indicates that in 1972 the defendant knew (or had reason to know) that children often played by the tracks near the scene of his accident and that they had done so for quite some period of time. *fn13" Further, the evidence reflected that no warning signs were present in the immediate vicinity of 9th and Kearney Streets at the time of the accident, although there was some evidence that certain signs had been placed there by defendant previously. *fn14" It could also be inferred from the evidence presented *fn15" that Myron had never been formally warned either at home or at school that "hopping" trains was dangerous. *fn16" Finally, it was uncontested that the defendant had erected no fence or other barricade along the hundreds of yards of its right-of-way at 9th and Kearney Streets in any attempt to deter children such as Myron from approaching its tracks. On this latter point, the plaintiffs were permitted to present lengthy and detailed testimony concerning certain precautions which defendant might have undertaken (e.g. the erection of fences and the posting of warning signs) as part of such an attempt. *fn17"

  For its part, defendant adduced certain evidence at trial which lent strong support to the legal defense which it had raised in its summary judgment motion. *fn18" On cross-examination of Myron Alston, for example, defense counsel once again elicited from him the admission that on the day of the accident he had entered defendant's premises intending to "hop a ride" on a train even though he "knew it was dangerous to fool around with trains." *fn19" Further, the uncontradicted testimony of two of Myron's young friends, Joseph Speight and Eric Toliver, established beyond any doubt that Myron was most familiar with the practice of "train hopping" and was indeed a veteran of many such incidents. *fn20" In fact, it was the testimony of Eric Toliver, who was present at the time of Myron's accident, that he and Myron had "jumped on trains" together earlier that afternoon; *fn21" Eric himself declined to join Myron once again in this activity later that afternoon when Myron was hurt only because he feared his sister Suzy, who had accompanied them this second time, would "tell" on him. *fn22" Finally, defendant presented additional evidence documenting certain safety measures which it had undertaken prior to the time of Myron's accident *fn23" and indicating the relative ineffectiveness of the fencing measures advocated by plaintiffs, *fn24" the absence of which plaintiffs insist amounts to negligence. *fn25"

 At the close of the testimony, the Court once again considered the defendant's argument that under the circumstances presented it was not negligent as a matter of law, this time in context of a motion for a directed verdict and in light of the evidence adduced by both sides. The matter was taken under advisement and accordingly the case was submitted to the jury. *fn26" After a verdict was returned in favor of the plaintiffs, *fn27" defendant renewed its motion in the form of a motion for judgment notwithstanding the verdict or in the alternative for a new trial. After long and reflective study of this matter and upon careful review of the applicable law, the Court has come to the firm conviction that defendant's motion for a directed verdict at the close of trial should have been granted and that judgment for defendant notwithstanding the verdict should now be entered.


 This case involves a tragic injury which all concerned, especially the Court, readily agree should never have occurred. The important question which it unavoidably raises is whether the defendant railroad company should be held liable for injuries sustained by a nine-year-old child under circumstances such as those presented here. *fn28" There was a time when this issue would have been resolved with unyielding decisiveness in favor of the owner-occupier of land, simply on the basis of the injured party's classificatory status as a trespasser under the common law. *fn29" Approximately a century ago, however, the law began to recognize that this harsh principle should not be applied without exception where the trespasser is a child of "tender years." In the 1873 landmark case of Sioux City & Pacific R. Co. v. Stout,30 the Supreme Court first recognized the necessity of treating trespassing children differently from trespassing adults and, in the case of a six-year-old injured on a railroad turntable, held that a landowner could under some circumstances be liable to such a trespasser of "tender age." *fn31" After this notion evolved through a process of subtle delineation -- which included, at one point, the legal fiction embodied by the attractive nuisance doctrine *fn32" -- it was codified in the Restatement of Torts as the rule applied by the "great majority of American courts" today. *fn33" This standard, bottomed upon the modern consensus that landowners should take reasonable precautions to protect unwary children from foreseeable dangers on even private premises, creates a landowner's duty of reasonable care to trespassing children which arises whenever certain specific circumstances are found to exist. As such, it represents both a radical departure from the landowner's near-absolute insulation from liability to all trespassers under early common law, *fn34" as well as a logical improvement upon the later requirement that the trespassing child be injured by the very hazard which presumably attracted him onto the landowner's premises. *fn35" The Restatement rule provides as follows:

ยง 339. Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an ...

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