The jury could reasonably have disbelieved the fragments of testimony concerning anyone's plans for hopping the train or that plaintiff actually jumped on the train immediately prior to sustaining his injuries. This evidence alone therefore would not justify the Court either in entering judgment for defendant notwithstanding the verdict or in granting a new trial.
However, the Court has concluded that plaintiff's case suffers from a more fundamental defect which does require it to set aside the jury's verdict and to award judgment to defendant.
As the brief discussion above demonstrates, viewing the evidence most favorably to plaintiff, there simply was no evidence that the railroad was negligent and thus legally at fault pursuant to any conceivably applicable test. See Part I, supra. Plaintiff's sole proof in that regard was that the railroad knew that persons living in the area not infrequently crossed its property in the area of the accident, but that it nevertheless failed to erect fences or to post signs to keep out unwanted persons and that it had also failed to initiate educational programs in the District of Columbia public schools to warn children against railroad dangers. There was evidence that some signs were posted, that plaintiff attended a private school, and that the erection of fences to keep unauthorized persons out of many thousands of square miles of railroad property along the eastern seaboard was not practical.
Beyond that, however, even if it be assumed that one or more of these failures of the defendant constituted negligence, it would not materially advance plaintiff's case. The permission, or even invitation, that may conceivably be implied by the railroad's nonfeasance in these regards does not transform that railroad into an insurer against any harm that may come to those who avail themselves of that permission or invitation, including harm resulting from plaintiff's own acts or those of third parties. The railroad can be held liable only for such harm as could reasonably be attributed to its malfeasance or nonfeasance.
If the plaintiff had, for example, fallen into an unsecured trap on a path leading from one side of the railroad property to the other, the failure to erect fences or to post signs might well amount to such negligence as to render the railroad liable for any resulting injury. But the moving train, clearly visible to plaintiff from ten feet away and making the very loud noise typical of trains,
constituted its own warning overriding any failure of the railroad to post warnings at the perimeter of its property.
There was no evidence, and indeed no contention that railroad personnel saw plaintiff and his companions on the day in question or that they were otherwise aware of their presence. Likewise, there was neither allegation nor evidence that the train jumped the track or for other reasons came into contact with plaintiff as a consequence of mechanical or other failure. In short, the evidence, and indeed logic and common sense, leave no room for any conclusion other than that plaintiff came into contact with the train for some reason unconnected with the railroad: because he hopped that train, because he fell, or conceivably because he was pushed into the moving train in the
course of play by one of his companions. Whatever hypothesis is assumed, the accident cannot be regarded as having occurred as a result of the railroad's negligence.
The same result flows from an alternative analysis of the law and the evidence. If it be assumed, arguendo, that the railroad was negligent, plaintiff still could not recover because of his own contributory negligence.
As discussed above, it is undisputed that plaintiff approached to within a few feet of the train, and there is at least some evidence that he may have hopped that train. In a number of cases in this jurisdiction courts have held that young children, even far younger than this plaintiff, are expected to discover and avoid the danger of a moving train. In Holland, supra, the D.C. Court of Appeals, after quoting from an opinion of the California Court of Appeals to the effect that "nothing could be more pregnant with warning of danger than the noise and appearance of a huge, rumbling string of railroad cars," went on to state:
There are certain obvious conditions which trespassing children are expected to understand as a matter of law. 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 made his own intelligent and responsible choice." W. Prosser, Law of Torts, supra, § 59 at 371. Prosser reveals this assumption has very often been applied in cases involving moving vehicles. Id. In the instant case, as a matter of law, element (c) of [§ 339 of the Restatement (Second) of Torts] is not met since a moving train is a danger so obvious that any nine-year-old child allowed at large would readily discover it and realize the risk involved in coming within the are made dangerous to it. (Citations omitted).
431 A.2d at 603.
Similarly, Judge Oberdorfer of this Court decided in Edwards v. Consolidated Rail Corporation, 567 F. Supp. 1087, 1104-05, 1112 (D.D.C. 1983), aff'd without opinion, 236 U.S. App. D.C. 135, 733 F.2d 966 (D.C. Cir. 1984), that an eleven-year-old child allowed at large will understand and avoid the danger of a moving train. Judge Gasch concluded in Alston v. Baltimore and Ohio R.R. Co., 433 F. Supp. 553, 569-70 (D.D.C. 1977), that a nine-year-old child injured as a result of an unsuccessful attempt to hop a moving train "unquestionably" understood and appreciated the possibility of harm (even the child testified that he "didn't think he would get hurt"). And Judge Richey found in Windom v. Penn Central Transportation Company, C.A. No. 479-72 (D.D.C. 1973), aff'd without opinion, 494 F.2d 1157 (D.C. Cir. 1974), that a seven-year, 10-month-old child was contributorily negligent as a matter of law where he sustained injuries upon contact with overhead electrified catenary wires after having climbed to the top of a stationary train.
In short, notwithstanding some factual differences between this case and the precedents cited, the law compels the conclusion that, if the railroad was negligent, plaintiff was guilty of contributory negligence, and that this circumstance, too, prevents him from recovering.
For the reasons stated, the Court reluctantly
concludes that defendant is entitled to the entry of a judgment in its favor notwithstanding the verdict. An order to that effect is being issued contemporaneously herewith.
Upon consideration of defendant's motion for a judgment notwithstanding the verdict or alternatively for a new trial, the memoranda filed by the parties in support of and in opposition to the motion, and the entire record herein, it is this 15th day of May, 1987
ORDERED that judgment is hereby entered in favor of defendant notwithstanding the jury verdict in favor of plaintiff.