Stanley Foshee v. Consolidated Rail Corporation

Opinion for the Court filed by Circuit Judge STARR.

Dissenting opinion filed by Chief Judge WALD.

STARR, Circuit Judge:

This is an appeal from the District Court’s grant of a motion for judgment notwithstanding the verdict. The underlying facts are tragic. In the summer of 1982, a thirteen-year-old boy, Derek Christopher Foshee, was seriously injured by a Conrail freight train on the main Conrail tracks in northeast Washington. The case was tried to a jury, which returned a verdict in favor of Derek and his parents.¹ Conrail thereupon moved for j.n.o.v. In a published opinion, Judge Harold Greene granted the motion, Foshee v. Consolidated Rail Corp., 661 F.Supp. 350 (D.D.C.1987), thereby prompting this appeal. We affirm.

I

The facts which gave rise to this case are amply set forth in the District Court’s careful opinion, id. at 351, 353. This is what happened:

“Derek Foshee entered upon the railroad property with six of his friends, one of their purposes being to traverse the railroad land to visit a video arcade on the other side of the tracks. There was some discussion of ‘hopping’ a Conrail freight train that was approaching — as some of the boys in the area had done on quite a few occasions — but the evidence does not reveal with certainty what conclusion, if any, was reached in regard to such an enterprise. Suffice it to say that eventually the train ... passed the area where the boys were congregated at a speed of nineteen miles per hour within a distance of no more than ten feet from Derek Foshee.

There was a gap. in the evidence as to what occurred next. * * * All that is clear is that Derek Foshee somehow came to be under the wheel of the train and that he was seriously injured____”

Id. at 353.

Plaintiffs’ theory at trial was, in essence, the following: the site of Derek’s injuries is a well beaten passageway across Conrail’s Benning Yard, a facility which has been relied upon for more than thirty years by individuals in the River Terrace neighborhood as a shortcut to bordering communities. Conrail’s own security personnel grew alarmed as the neighborhood became increasingly dependent upon the Yard as a pedestrian route. Conrail failed to erect fences in the area or to take any affirmative measures to deter the public from entering onto the railroad’s property. Given the company’s admitted knowledge of the substantial pedestrian traffic, these omissions constituted a failure by Conrail to act reasonably under the circumstances. Id. at 354; Brief for Appellants at 1.

In response, Conrail advanced the following arguments: (1) under District of Columbia law, Derek was either a trespasser or bare licensee, to whom the railroad owed only the duty not to inflict intentional or willful injury, Foshee, 661 F.Supp. at 351-52; (2) no proof was forthcoming that the railroad was negligent, inasmuch as the evidence compelled “the conclusion that plaintiff was injured while attempting to hop the train,” id. at 353; and (3) even if the railroad was negligent, plaintiffs still could not recover by virtue of Derek’s contributory negligence. Id. at 355.

II

Upon careful review of the record in this case, we are satisfied that Judge Greene, consistent with applicable law,² was correct in overturning the jury’s verdict. In so concluding, we are not unmindful of the daunting standards to be met before the considered judgment of the community’s representatives may lawfully be displaced. See Tavoulareas v. Piro, 817 F.2d 762 (D.C.Cir.1987) (en banc); Vander Zee v. Karabatsos, 589 F.2d 723 (D.C.Cir.1978). As we see the case, however, those standards were in fact met. In reaching this conclusion, we rely solely on Judge Greene’s analysis of contributory negligence.³

In light of the applicable D.C. law, we find unimpeachable the District Court’s determination that contributory negligence stands as a bar to plaintiffs’ recovery. Judge Greene emphasized the undisputed fact that Derek came within a few feet of a moving train. Canvassing the opinions of several of his colleagues, as well as the authoritative guidance provided by the D.C. Court of Appeals in Holland v. Baltimore & O.R.R., 431 A.2d 597 (D.C.App.1981) (en banc), Judge Greene observed that it is settled law in this jurisdiction that “young children, even far younger than this plaintiff, are expected to discover and avoid the danger of a moving train.” Foshee, 661 F.Supp. at 355.

In attacking this pivotal point, plaintiffs quite understandably invoke a long, distinguished line of cases stating the unexceptionable proposition that contributory negligence is a jury question. Brief for Appellants at 16-17.⁴ That general proposition, however, does not somehow work pro tan-to a repeal of j.n.o.v. law and practice; where, as here, we are confronted with a complete lack of evidence to support the jury’s conclusion that Derek was not con-tributorily negligent (in light of the state of D.C. law as articulated in Holland), entry of j.n.o.v. was appropriate.

Plaintiffs suggest that Derek may not have voluntarily come into contact with the train. He may have become dizzy or disoriented, plaintiffs suggest, while waiting for the train to pass. Id. at 17. In this respect, plaintiffs invoke testimony from Conrail’s own safety director, who opined that individuals “are putting their lives on the line when they get onto the railroad property.” Id. But that is precisely the point. The settled law of this jurisdiction, which we are duly bound faithfully to follow, is squarely to the effect that the hazards of a moving train are so obvious that even a young child, if old enough to be at large, realizes “the risk involved in ... coming within the area made dangerous by it.” Holland, 431 A.2d at 602. Judge Greene was therefore correct in abiding by Holland’s teaching and concluding, as do we, that “the law compels the conclusion that, if the railroad was negligent, plaintiff was guilty of contributory negligence, and that this circumstance ... prevents him from recovering.” Foshee, 661 F.Supp. at 355.

Judgment accordingly.

1 . The jury awarded f 1.5 million to Derek and $70,859.10 to his parents.

2 . After Judge Greene rendered his decision, this court issued an opinion clarifying that Firfer v. United States, 208 F.2d 524 (D.C.Cir.1953), represents the controlling articulation of District of Columbia law with respect to landowner liability. See Jeffries v. Potomac Development Corp., 822 F.2d 87 (D.C.Cir.1987). Firfer, which had ' been drawn into question by prior decisions of this court, held that mere acquiescence by a landowner in the use of his property by members of the public would allow an entrant, at most, to lay claim to the status of bare licensee. Jeffries makes clear our understanding of D.C. law, namely that the D.C. Court of Appeals' decision in Holland v. Baltimore & O.R.R., 431 A.2d 597 (D.C.App.1981) (en banc), definitively reembraced the rule laid down in Firfer. We therefore vacate Part I of Judge Greene's opinion, which suggests that Firfer does not represent the law of the District of Columbia.

3 . We therefore have no occasion to pass on the trial court's analysis of the negligence issue. We nonetheless believe that a modest observation concerning one of the requisite elements of liability is in order. As Derek encountered the train after its locomotive passed by, we question whether on this barren record a jury could find proximate cause. Once we put aside contributory negligence, it seems almost certain that whatever brought about the accident was an intervening (i.e., non-proximate) cause. But in view of the state of D.C. law with respect to contributory negligence, as adumbrated in the text, we do not reach the point.

4 . Plaintiffs also argue that the line of precedent relied upon by Judge Greene is inapposite. Brief for Appellants at 14-16. To be sure, those decisions involved child trespassers who were attempting to invoke the “attractive nuisance” exception to the general rule of landowner liability articulated in Firfer. Plaintiffs here, in contrast, had no need to invoke the "attractive nuisance" doctrine since the jury found Derek to be “lawfully on the land.” See Brief for Appellants at 15 n. 5. But these differences are irrelevant to the issue before us. The cases clearly hold that a moving train is a danger so obvious that children of a certain age are presumed to recognize the danger and appreciate the risk of drawing near. It would be odd indeed to hold that children recognize the danger of a moving train when trespassing on railroad property, but somehow become unaware of the risks when present on the property as a result of the railroad’s acquiescence.