[601 N.E.2d 293] [235 Ill.App.3d 44] [175 Ill.Dec. 896] Brian Dean Shore, argued, Guyer & Enichen, Rockford, for Anthony Topps.

Michael T. Caldwell, argued, Caldwell, Berner & Caldwell, Woodstock, for Phillip Ferraro.

Justice McLAREN delivered the opinion of the court:

Plaintiff, Anthony Topps, filed a one-count complaint in the circuit court of McHenry County alleging negligence against defendant, Phillip Ferraro. The trial court granted defendant's motion for summary judgment, and plaintiff filed this timely appeal. The sole issue presented for review is whether the trial court erred in granting summary judgment in favor of defendant. We reverse and remand the cause.

The deposition testimony of the parties reveals the following facts. On June 28, 1987, plaintiff and defendant attended a social gathering at the home of a mutual friend. Shortly after the arrival of defendant and a female companion, defendant encountered plaintiff in the living room of the house and asked plaintiff if he would step outside for a moment to discuss something. Plaintiff, at that moment, did not feel challenged or threatened and agreed to step outside. Once outside, defendant asked plaintiff about earlier statements allegedly made by plaintiff about defendant's girlfriend. Within a short period of time, the conversation grew heated and argumentative.

[235 Ill.App.3d 45] In his deposition, plaintiff stated that he informed defendant that he would speak to him later after defendant calmed down. He said that he turned around and felt defendant touch his left shoulder, that the next thing he could recall was waking up one to two minutes later in the bushes with his left eye feeling sore, and that he smelled a strong odor of blood. Plaintiff stated that he could not recall any other details from the moment he turned around until he regained consciousness. He further stated that he did not remember whether he pushed or shoved the defendant.

At his deposition, defendant stated that after the argument became heated plaintiff shoved him in the shoulder, and he responded by punching plaintiff in the face, contacting plaintiff's left eye. Plaintiff then fell to the ground, stating that he required medical assistance. Defendant further testified:

"A. [Defendant]: After talking and turning into an argument he pushed me on the shoulder, and once he hit me--well, pushed me, I hit him in the face.

* * * * * *

Q. So you said your reaction was to hit at him?

A. Well, that's just--I mean it wasn't something I thought about. Once he pushed me, I hit him, so it wasn't really any time.

Q. Is it your testimony at the time that you--that he pushed you it was your intent to hit him?

A. What?

Q. At the time--

A. He pushed me.

Q. It was your intent to hit him?

A. It wasn't a thought out thing. It was just all of a sudden I came up and hit him.

* * * * * *

Q. When you made contact with [plaintiff], what was your intention?

A. There was no intention. It was a matter--it was a matter of reflexes. I don't know what it was because really there was no time to think about it. Once he pushed me, I didn't think about he pushed me, hit him. It was just a matter of he pushed me and I hit him.

Q. Did you mean to hit him?

A. That was not--it wasn't my intention to bring him out there to go beat him up.

Q. I am saying at the time you did make contact?

[601 N.E.2d 294] [235 Ill.App.3d 46] [175 Ill.Dec. 897] A. Yes. There was no time. I didn't even think about it or anything. It was a matter of reaction."

The record does not reflect any additional testimony or factual evidence as to the altercation.

Plaintiff was treated for his eye injury at the Crystal Lake Ambutal and released. Plaintiff testified that after the swelling subsided four days later he observed that the entire white portion of his left eye was red and that a portion of his vision was blocked. Plaintiff sought further treatment from an eye specialist. Plaintiff testified that at the time of his deposition, which was approximately three years after he sustained the injury, his field of vision was still impaired and that his visual acuity had further deteriorated.

In his one-count complaint plaintiff alleged:

"4. * * * Defendant, Phillip Ferraro, was guilty of one or more of the following negligent acts:

(a) Extended his arm in a negligent matter [sic ] without due regard for the presence of others.

(b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact.

(c) Failed to keep proper lookout for the Plaintiff.

5. That due to the foregoing negligent acts or omissions of the Defendant, Phillip Ferraro, the Plaintiff, Anthony Topps, was injured * * *." (Emphasis added.)

Defendant moved for summary judgment and attached copies of plaintiff's and defendant's discovery depositions. Defendant did not file a motion to strike or dismiss, nor did defendant file an affirmative defense in the nature of self-defense. Plaintiff filed no response to defendant's motion for summary judgment. The trial court granted defendant's motion, and plaintiff now appeals.

Plaintiff contends that an issue of material fact exists as to the "degree" of defendant's culpability and that the factual evidence presented in support of defendant's motion did not establish free and clear from doubt that defendant's conduct was other than negligent. Plaintiff focuses on defendant's professed state of mind at the time he struck plaintiff and argues that, because defendant was unable to provide an explanation why he struck plaintiff, a trier of fact could infer that defendant's conduct was negligent as opposed to intentional. Plaintiff further argues that defendant's testimony indicates that defendant negligently failed to contemplate the possible or probable consequences of his act in striking plaintiff. Defendant responds that the record clearly and unequivocally establishes that his actions were [235 Ill.App.3d 47] intentional and, therefore, no issue of material fact exists as to whether his conduct could be characterized as negligent.

Defendant argues that his intentional act precludes a grant of judgment to plaintiff on the issue of negligence by arguing the law relating to an intentional tort. However, defendant does not concede liability for either negligence or intentional tort because he claims self-defense. Defendant has failed to cite any law as to why an unreasonable belief in the need for self-defense is neither negligence nor an intentional tort. Defendant's argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent. Our independent research has disclosed two cases which allow recovery in negligence for such "intentional" acts. Blackburn v. Johnson (1989), 187 Ill.App.3d 557, 135 Ill.Dec. 200, 543 N.E.2d 583; Wegman v. Pratt (1991), 219 Ill.App.3d 883, 894, 162 Ill.Dec. 221, 579 N.E.2d 1035.

In this case, plaintiff's complaint alleged the following negligent acts by defendant: "(a) Extended his arm in a negligent matter [sic ] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact[, and] (c) Failed to keep a proper lookout for the Plaintiff." To state a legally sufficient cause of action in either simple or willful and wanton negligence, plaintiff must have alleged sufficient facts to show defendant had a duty to plaintiff, that he breached [601 N.E.2d 295] [175 Ill.Dec. 898] such duty, and that an injury proximately resulted from that breach. (Wood v. Village of Grayslake (1992), 229 Ill.App.3d 343, 349, 170 Ill.Dec. 590, 593 N.E.2d 132.) The fact that defendant stated in his deposition that he intended to punch plaintiff neither mystically transmutes the allegations in plaintiff's complaint to an intentional tort nor precludes recovery in negligence.

The arguments of the parties set forth above are primarily due to the fact that the defendant apparently has insurance where coverage is dependent on the nature of the acts committed by defendant. The plaintiff has attempted to state a cause of action with facts that he believes will enable him to collect any judgment he might obtain. The defendant, on the other hand, has attempted to defend the action in such a way that no conflict of interest would arise between the defendant and his insurer. It is in this context that we consider whether the trial court erred in granting defendant's motion for summary judgment.

When reviewing the trial court's grant of summary judgment, the reviewing court must first determine whether the trial court erred in its ruling that no genuine issue of material fact existed. (Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), [235 Ill.App.3d 48] 170 Ill.App.3d 244, 248, 120 Ill.Dec. 465, 524 N.E.2d 230.) A motion for summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Balla v. Gambro, Inc. (1991), 145 Ill.2d 492, 508, 164 Ill.Dec. 892, 584 N.E.2d 104.) If no issue of material fact has been raised, the court must determine whether judgment was correctly entered as a matter of law. (Briarcliffe, 170 Ill.App.3d at 249, 120 Ill.Dec. 465, 524 N.E.2d 230.) Thus, the reviewing court must apply the de novo standard of review and consider anew the facts and law related to the case. Shull v. Harristown Township (1992), 223 Ill.App.3d 819, 824, 166 Ill.Dec. 142, 585 N.E.2d 1164; Quinton v. Kuffer (1991), 221 Ill.App.3d 466, 471, 164 Ill.Dec. 88, 582 N.E.2d 296.

Contrary to a section 2-615 motion to dismiss, summary judgment should not be used to determine whether plaintiff's complaint sets forth a legally sufficient cause of action. Rather, a motion for summary judgment "almost necessarily assumes a cause of action has been stated." (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 406, 312 N.E.2d 605.) If defendant wished to contest the sufficiency of plaintiff's complaint, he should have first filed a motion to strike and/or dismiss. Only when a legally sufficient cause of action had been stated should defendant have challenged the cause of action by a motion for summary judgment or his affirmative defense of self-defense. Magnuson v. Schaider (1989), 183 Ill.App.3d 344, 355, 131 Ill.Dec. 753, 538 N.E.2d 1309.

The purpose of summary judgment is not to try the issues, but to determine whether any triable issues exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill.2d 404, 416, 164 Ill.Dec. 622, 583 N.E.2d 538; Quinton v. Kuffer (1991), 221 Ill.App.3d 466, 470, 164 Ill.Dec. 88, 582 N.E.2d 296.) At the summary judgment stage, contrary to the dissent contained herein, the plaintiff is not required to establish his case as he would at trial. Instead, the plaintiff must present some factual basis that would arguably entitle him to a judgment in his favor. (West v. Deere & Co. (1991), 145 Ill.2d 177, 182, 164 Ill.Dec. 122, 582 N.E.2d 685.) Plaintiff herein alleged his right to a cause of action based upon a negligence theory of liability and has neither alleged intent nor lack thereof. He is entitled to the benefit of every relevant fact necessary to succeed on the theory he has alleged. We find that the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is a genuine issue of material fact regarding defendant's negligence regardless of the issue of intent or lack thereof. (Blackburn, 187 Ill.App.3d at 560, 135 Ill.Dec. 200, 543 N.E.2d 583; Wegman, 219 Ill.App.3d at 894, 162 Ill.Dec. 221,579 [601 N.E.2d 296] [175 Ill.Dec. 899] N.E.2d 1035.) Accordingly, the trial court erred in ruling that no issue of material fact existed as to the nature of defendant's conduct as reasonable [235 Ill.App.3d 49] minds could find that the defendant was negligent in hitting the plaintiff.

For the foregoing reasons, we reverse the order of the circuit court of McHenry County granting judgment in favor of defendant, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT, J., concurs.

DOYLE, Justice, dissenting.

I respectfully dissent because I believe that the majority may have been led to an incorrect result through a misunderstanding of defendant's argument. The majority states that "[d]efendant's argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent " (emphasis in original) (235 Ill.App.3d at 47, 175 Ill.Dec. at 897, 601 N.E.2d at 294) and that defendant's admission in his deposition that he intended to punch plaintiff does not transform plaintiff's allegations into an intentional tort. Additionally, the majority questions why defendant failed to file a motion to strike and/or dismiss and states that a motion for summary judgment should not be used to determine whether plaintiff's complaint sets forth a cause of action. While I agree with this well-settled rule, it fails to address defendant's argument here. Defendant has not challenged plaintiff's complaint for failure to state a cause of action; rather, his focus is upon the failure of the plaintiff to provide evidence which would support the complaint's specific allegations of negligence. I understand defendant's position to be that negligence is a theory of action which is separate and distinct from intentional tort and that, although plaintiff has elected to proceed on a specific theory of negligence only, the evidence before the trial court presented no issue of material fact as to whether defendant's conduct could be characterized as negligent within the allegations of the complaint.

Plaintiff failed to offer any evidence in contradiction of the deposition testimony submitted in support of defendant's motion for summary judgment. It is well settled that facts contained within affidavits in support of a motion for summary judgment and uncontradicted by other factual evidence are admitted and considered true (Heidelberger v. Jewel Cos. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601) and that discovery depositions may be utilized in support of a summary judgment motion to the [235 Ill.App.3d 50] same extent as affidavits. 134 Ill.2d R. 212(a)(4); Carter v. Dunlop (1985), 138 Ill.App.3d 58, 63, 92 Ill.Dec. 418, 484 N.E.2d 1273.

It is true, however, that if reasonable persons could draw divergent inferences from the undisputed facts, summary judgment should be denied (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304) and that a court must construe the deposition testimony strictly against the defendant-movant and liberally in favor of the plaintiff and enter summary judgment only when the right of the defendant is free and clear from doubt (Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill.2d 121, 130, 142 Ill.Dec. 192, 552 N.E.2d 783).

Intent, as defined within the context of tort liability, is not necessarily a hostile intent, or a desire to do any harm; rather, it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. (Cowan v. Insurance Co. of North America, (1974) 22 Ill.App.3d 883, 893, 318 N.E.2d 315, citing W. Prosser, Handbook of the Law of Torts § 8, at 31 (4th ed. 1971).) Comment b of section 8A of the Restatement (Second) of Torts provides:

"All consequences which the actor desires to bring about are intended * * *. * * * If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." [601 N.E.2d 297] [175 Ill.Dec. 900] ." (Restatement (Second) of Torts § 8A, Comment b, at 15 (1965).)

The term "intent" is commonly used "to describe the purpose to bring about stated physical consequences " and is concerned with the consequences of the act. (Emphasis in original.) (W. Keeton, Prosser & Keeton on Torts § 8, at 35 (5th ed. 1984).) Motive focuses on the subjective rationale that inspires the act and the intent. W. Keeton, Prosser & Keeton on Torts § 8, at 35 (5th ed. 1984).

It is recognized that motive and intent are related states of mind and that confusion sometimes exists as to their precise interaction in the context of tort liability. In analyzing the circumstances of the present incident, however, I conclude that defendant's inability or failure in his deposition to specifically articulate his reason for striking plaintiff does not provide support for any inference that he acted negligently. Plaintiff's argument confuses motive with intent. Defendant's deposition testimony does not evidence his lack of intent; rather, it demonstrates his subjective reasoning, or lack thereof, as to why he engaged in an act of striking plaintiff. Although defendant testified that "it wasn't something he thought about" and that it was a matter of reflexes, he clearly and unequivocally stated that he struck plaintiff. The only reasonable interpretation of the evidence is that defendant [235 Ill.App.3d 51] struck out intentionally in response to allegedly being pushed by plaintiff.

Additionally, there is no evidence which suggests an alternative inference that defendant did not know or was substantially uncertain of the consequences of his act of striking plaintiff. Plaintiff has failed to respond to the motion for summary judgment by submitting facts which would raise an alternative inference (see Randle v. Hinckley Parachute Center, Inc. (1986), 141 Ill.App.3d 660, 661, 96 Ill.Dec. 5, 490 N.E.2d 1041), and he cannot rely upon mere conjecture or surmise as being sufficient to raise a genuine issue of negligence (see Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill.App.3d 95, 101, 82 Ill.Dec. 215, 468 N.E.2d 477). I conclude that the testimony relating to defendant's motive is insufficient to raise an issue of material fact as to whether defendant's conduct was negligent as opposed to intentional.

Plaintiff submits an alternative theory by which a trier of fact might characterize defendant's conduct as negligence. He argues that the facts might be interpreted as showing that defendant made an unreasonable decision to act intentionally in defense of his person against plaintiff's advances. A determination of negligence, it is asserted, could be predicated upon the defendant's faulty decision to act intentionally. Although I agree with the majority that under certain circumstances this has been recognized to be a viable theory of negligence (see Wegman v. Pratt (1992), 219 Ill.App.3d 883, 162 Ill.Dec. 221, 579 N.E.2d 1035; Blackburn v. Johnson (1989), 187 Ill.App.3d 557, 135 Ill.Dec. 200, 543 N.E.2d 583), it has no applicability to assist plaintiff in the present case because his complaint does not allege any such theory of negligence. On the contrary, the complaint describes defendant's "negligent acts" as follows: "(a) Extended his arm in a negligent matter [sic ] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact[, and] (c) Failed to keep a proper lookout for the Plaintiff." In contrast, both Wegman and Blackburn, cited by the majority, involved complaints which specifically alleged a theory of negligent decision to use force in defense of person. (Wegman, 219 Ill.App.3d at 895, 162 Ill.Dec. 221, 579 N.E.2d 1035; Blackburn, 187 Ill.App.3d at 560, 135 Ill.Dec. 200, 543 N.E.2d 583.) Considering the plain and ordinary meaning of the present allegations, coupled with plaintiff's failure to respond to the motion for summary judgment by arguing any alternative theory of interpretation, I conclude that the trial court was correct in its ruling that no issue of material fact existed as to the nature of defendant's conduct.

Having determined that no issue of material fact exists, the next consideration is whether the trial court, as a matter of law, properly granted summary judgment in favor [601 N.E.2d 298] [175 Ill.Dec. 901] of defendant. Defendant contends [235 Ill.App.3d 52] that an uncontroverted showing of intentional conduct entitled him to summary judgment.

Intentional torts and negligence are distinct causes of action. Contrary to plaintiff's contention, differing theories of tort liability are distinguished, not by their difference in degree of culpability, but, rather, they are distinguished on the basis of their qualitative differences in kind. (See Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 450-52, 170 Ill.Dec. 633, 593 N.E.2d 522 (qualitative differences between negligence and wilful and wanton conduct preclude their comparison for comparative fault purposes).) Moreover, it is the presence of the recognized elements of negligence and not the absence of intentional or reckless conduct which determines the right to maintain a negligence cause of action. In ruling upon a motion for summary judgment, the court must consider the specific allegations of the complaint. A complaint must contain a plain and concise statement of the plaintiff's cause of action. (Ill.Rev.Stat.1991, ch. 110, par. 2-603(a).) It should sufficiently define the issues and reasonably inform the defendant of the claim which he or she is called upon to meet. (Ill.Rev.Stat.1991, ch. 110, par. 2-612.) Plaintiff, as the master of his complaint, was free to choose his theory of action, and a court's determination of whether plaintiff is entitled to recovery is based upon the evidence adduced in support of his chosen theory.

If, from the evidence before the court, a plaintiff has failed to establish an element of his cause of action as alleged, summary judgment for the defendant is proper. (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304.) Plaintiff alleged his right to a cause of action based upon a specifically identified negligence theory of liability and was entitled to the benefit of every relevant fact necessary to succeed on that theory. His failure to provide sufficient evidence necessary to withstand defendant's summary judgment motion, however, required the trial court to determine, as a matter of law, that plaintiff was not entitled to maintain his cause of action for negligence.

For the foregoing reasons, I would affirm the circuit court's order granting summary judgment in favor of defendant.

65 Neb. 889
91 N.W. 880

CHICAGO, B. & Q. R. CO.
v.
KRAYENBUHL.

Supreme Court of Nebraska.

Oct. 9, 1902.

Syllabus by the Court.

1. Petition examined, and held good, as against a demurrer ore tenus.

2. When the owner of dangerous premises knows, or has good reason to believe, that children, so young as to be ignorant of the danger, will resort to such premises, he is bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from the dangerous condition of the premises while there, as a man of ordinary care and prudence, under like circumstances, would take; approving Railroad Co. v. Bailey, 9 N. W. 50, 11 Neb. 336.

3. In such cases, in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relation such precautions bear to the beneficial use of the premises. If, under all the circumstances, the owner omit such precautions as a man of ordinary care and prudence would take, under like circumstances, he is guilty of negligence.

4. Ordinarily, the question of negligence is one of fact for the jury, to be determined from all the facts and circumstances shown in evidence, and it is error for the court to group certain facts in evidence together, and instruct the jury that they constitute negligence.

5. In an action, by an infant in the care and custody of its father, for personal injuries, it is error to instruct the jury that his lessened earning capacity is an element of damages, unless it be limited to the period from which he would be entitled to his earnings.

6. An instruction authorizing the jury, in arriving at a verdict, to bring to bear their own knowledge, observation, and experience in the business affairs of life is erroneous when not limited to such knowledge, observation, and experience as they share in common with men generally.

7. An instruction relative to the damages to be awarded the plaintiff, if any, closed with the statement that they should not exceed a specific amount, naming the amount claimed in the petition. Held, that the practice of thus referring to the amount claimed should be discountenanced.

8. Instructions tendered examined, and held properly refused.

9. Rulings on the admission of evidence examined, and held not erroneous.

Commissioners' opinion. Department No. 3. Error to district court, Merrick county; Thompson, Judge.

Action by Leo Krayenbuhl, by his next friend, against the Chicago, Burlington & Quincy Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Reversed. [91 N.W. 880] J. W. Deweese, F. E. Bishop, and John Patterson, for plaintiff in error.

Mathew Gering and Michael O'Donahue, for defendant in error.

ALBERT, C.

This action was brought on behalf of Leo Krayenbuhl, whom we shall hereafter call the plaintiff, by his next friend, against the Chicago, Burlington & Quincy Railroad Company to recover for personal injuries received by the plaintiff while playing on a turntable belonging to the defendant.

It sufficiently appears from the evidence that on and prior to the 20th day of October, 1895, the defendant operated a line of railroad, which extended through the village of Palmer, at which point it maintained a passenger depot, roundhouse, coalhouse, water tank, and turntable. A few rods northwest of the depot the road branched, one branch taking a westerly and the other a northwesterly course. The turntable was situated between those two branches, at a point about 1,600 feet from the depot, and about 100 feet from each branch, and a track extended to it from the point of divergence of the two branches. A path or footway, beginning some distance northwest of the turntable, extended in a southeasterly direction, passed within about 70 feet of it, and crossed the [91 N.W. 881] track at the south. This path was in common use, not only by the members of the family to which the plaintiff belonged, but by the public generally, and there was no fence between it and the turntable. The turntable was provided with a movable bolt, which by means of a lever could be thrown into a socket in the surrounding framework, thus holding the turntable in position. Provision was also made for locking it with a padlock. The rules of the defendant in force at the time required the foreman of the roundhouse, or in his absence the station agent, to keep the turntable locked when not in use; but there is considerable evidence to the effect that this rule was frequently disregarded, and that, owing to the looseness of one of the staples used in connection with the lock, even when thus fastened, it could be unfastened by young children without much difficulty. The plaintiff's father was in the employ of the defendant as section foreman, and, with his family, occupied a small house on the right of way near the station, within about 30 feet of the track, and about 1,600 feet from the turntable. Another family resided on the right of way, a few rods from the turntable. The two families visited back and forth, using the right of way for a path. The plaintiff's father kept a cow, which was pastured on the right of way, sometimes near the turntable, and it appears from the evidence that his children drove it back and forth on the right of way as occasion required. There is evidence tending to show that it was the common practice for the children of the family and other children in the neighborhood to resort to the coalhouse, roundhouse, and turntable, and to amuse themselves by revolving the turntable, and riding on it while it was in motion, and that this practice was known to the defendant, who permitted it without protest.

On the 20th day of October, 1895, in the absence of his parents, the plaintiff,--he was then four years of age,--in company with some other members of the family, the oldest of whom was eleven years old, and some other children, the oldest of whom was fourteen, were playing with a push car, moving it up and down on the railroad track. The agent in charge of the station joined them, and rode a short distance on the car. He then left them, and went to his rooms in the station. The children continued to push the car, and finally reached the turntable. There is evidence sufficient to sustain a finding that they found the turntable unlocked and unguarded, but the evidence is conflicting on that point. The plaintiff and some of the other children got on the turntable, while two of the others set it in motion. While it was in motion the plaintiff's foot was caught between the rails, and severed at the ankle joint. The injury thus sustained is that for which damages is sought in this action. A trial was had to a jury, which resulted in a verdict and judgment for the plaintiff. The defendant brings error.

The first question raised is that the petition does not state facts sufficient to constitute a cause of action. The grounds of this objection, as stated in the defendant's brief, are as follows: “It does not allege the authority of any agent of the defendant to invite the plaintiff upon its turntable, or any facts which constitute such express invitation. It does not allege the characteristics either of location or construction of the table, which of themselves render the table an invitation to the danger.” The petition is too long to set out at length. We think it will suffice to say that the allegations in these respects are that the plaintiff was induced by other small children, with the knowledge and consent of the defendant, its agents and servants, and by the invitation of the defendant, to come to and about the turntable. On the face of the petition, this is an allegation of an invitation by the defendant. If the plaintiff were invited by the defendant, he was invited by some agent of the defendant having authority in the premises. The allegation in that regard is sufficient. It is true the facts constituting such invitation are not set forth, nor do we deem it necessary that they should be for the purposes of the objection under consideration, which was first made by an objection to the introduction of any testimony, on the ground that the facts stated in the petition did not constitute a cause of action.

The question to which counsel have directed the greater portion of their arguments is whether the facts in this case are sufficient to sustain the verdict. On this question we have been favored with an exhaustive discussion of what is commonly known as the “doctrine of the Turntable Cases,” which applied to the facts in this case, would sustain the verdict. The leading case in support of this doctrine is Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. The doctrine was reaffirmed by the same court in Railroad Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, and was expressly approved by this court in Railroad Co. v. Bailey, 11 Neb. 336, 9 N. W. 50, and was approved and applied in the following among other cases: Barrett v. Pacific Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186;Keffe v. Railway Co., 21 Minn. 207, 18 Am. Rep. 393;Twist v. Railroad Co. (Minn.) 39 N. W. 402, 12 Am. St. Rep. 626;Railway Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203;Navigation Co. v. Hedrick, 1 Wash. 446, 25 Pac. 335, 22 Am. St. Rep. 169; Railroad Co. v. Skidmore (Tex. Civ. App.) 65 S. W. 215;Railway Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755;Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507;Ferguson v. Railway Co., 75 Ga. 637;Nagel v. Railway Co., 75 Mo. 653, 42 Am. Rep. 418.

The doctrine, as we gather it from the cases cited, is that where a turntable is so [91 N.W. 882] situated that its owner may reasonably expect that children too young to appreciate the danger will resort to it, and amuse themselves by using it, it is guilty of negligence for a failure to take reasonable precautions to prevent such use. It has not been permitted to pass as law unchallenged. On the contrary, it has been expressly repudiated in many cases, among which are the following: Walsh v. Railroad Co. (N. Y.) 39 N. E. 1069, 27 L. R. A. 724, 45 Am. St. Rep. 615;Daniels v. Railroad Co., 154 Mass. 349, 28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253;Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396;Railroad Co. v. Reich (N. J. Err. & App.) 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727. It has been criticised in others, among which are Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, and Dobbins v. Railroad Co. (Tex. Sup.) 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856. The latter case would seem to throw some doubt on the position of the courts of Texas in regard to the doctrine in question, but the case of Railroad Co. v. Skidmore, supra, appears to be the latest expression of the court on the question.

The defendant insists that the doctrine is unsound, and asks that it be repudiated by the court, and that the case of Railroad Co. v. Bailey, supra, be overruled. The argument in this behalf rests on the proposition that the owner of dangerous premises owes no active duty to trespassing children. The assumption that the plaintiff was a trespasser might well be questioned. The right of way was his home and playground; it was where his father performed his daily labors; it was used as a path and for other purposes by the family. But, as the duty of the owner of dangerous premises to infant trespassers is raised by other assignments, it will shorten this opinion to allow the assumption to pass unchallenged. The proposition is not universally true, as is clearly shown, we think, by Sedgwick, J., in Tucker v. Draper, 62 Neb. 66, 86 N. W. 917, wherein he says: “* * * There may be, and often are, circumstances under which one owes some active duty to a trespasser upon his premises. If a man willfully lies down upon a railroad track, the engineer must not wantonly run his engine over him. One may not set a snare or spring gun for trespassers, and, knowing that some stranger had placed the snare or spring gun, if he wantonly allows it to remain he will be responsible for the consequences. A well may be so contrived as to act as a dangerous trap, and one who allows it so to remain upon his premises will, under some circumstances, be liable. If adults, or children of such age as to ordinarily be capable of discerning and avoiding danger, are injured while trespassing upon the premises of another, they may be without remedy, while under similar circumstances children of three or four years of age would be protected. If I know that there is an open well upon my premises, and know that children of such tender years as to have no notion of their danger are continually playing around it, and I can obviate the danger with very little trouble to myself, and without injuring the premises or interfering with my own free use thereof, I owe an active duty to those children, and if I neglect that duty, and they fall into the well and are killed, it is through my negligence. I cannot urge their negligence as a defense, even though I have never invited or encouraged them, expressly or impliedly, to go upon the premises.”

The language amounts to a reaffirmance of the doctrine of the turntable cases, and, to our minds, suggests the true principle upon which cases of this character rest; that is, that where the owner of dangerous premises knows, or has good reason to believe, that children so young as to be ignorant of the danger will resort to such premises he is bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from the dangerous condition of the premises while there, as a man of ordinary care and prudence, under like circumstances, would take. At first sight, it would seem that the principle, thus stated, is too broad, and that its application would impose unreasonable burdens on owners, and intolerable restrictions on the use and enjoyment of property. But it must be kept in mind that it requires nothing of the owner that a man of ordinary care and prudence would not do of his own volition, under like circumstances. Such a man would not willingly take up unreasonable burdens, nor vex himself with intolerable restrictions.

It is true, as said in Loomis v. Terry, 17 Wend. 496, 31 Am. Dec. 306, “the business of life must go forward”; the means by which it is carried forward cannot be rendered absolutely safe. Ordinarily, it can be best carried forward by the unrestricted use of private property by the owner; therefore the law favors such use to the fullest extent consistent with the main purpose for which, from a social standpoint, such business is carried forward, namely, the public good. Hence, in order to determine the extent to which such use may be enjoyed, its bearing on such main purpose must be taken into account, and a balance struck between its advantages and disadvantages. If, on the whole, such use defeats, rather than promotes, the main purpose, it should not be permitted; on the other hand, if the restrictions proposed would so operate, they should not be imposed. The business of life is better carried forward by the use of dangerous machinery; hence the public good demands its use, although occasionally such use results in the loss of life or limb. It does so because the danger is insignificant, when weighed against the benefits resulting from the use of such machinery, and for the same reason demands its reasonable, most effective, [91 N.W. 883] and unrestricted use, up to the point where the benefits resulting from such use no longer outweigh the danger to be anticipated from it. At that point the public good demands restrictions. For example, a turntable is a dangerous contrivance, which facilitates railroading; the general benefits resulting from its use outweigh the occasional injuries inflicted by it; hence the public good demands its use. We may conceive of means by which it might be rendered absolutely safe, but such means would so interfere with its beneficial use that the danger to be anticipated would not justify their adoption; therefore the public good demands its use without them. But the danger incident to its use may be lessened by the use of a lock which would prevent children, attracted to it, from moving it; the interference with the proper use of the turntable occasioned by the use of such lock is so slight that it is outweighed by the danger to be anticipated from an omission to use it; therefore the public good, we think, demands the use of the lock. The public good would not require the owner of a vacant lot on which there is a pond to fill up the pond or inclose the lot with an impassable wall to insure the safety of children resorting to it, because the burden of doing so is out of proportion to the danger to be anticipated from leaving it undone. Richards v. Connell, 45 Neb. 467, 63 N. W. 915. But where there is an open well on a vacant lot, which is frequented by children, of which the owner of the lot has knowledge, he is liable for injuries sustained by children falling into the well, because the danger to be anticipated from the open well, under the circumstances, outweighs the slight expense or inconvenience that would be entailed in making it safe. Tucker v. Draper, supra.

Hence, in all cases of this kind in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions bear to the beneficial use of the premises. The nature of the precautions would depend on the particular fact in each case. In some cases a warning to the children or the parents might be sufficient; in others, more active measures might be required. But in every case they should be such as a man of ordinary care and prudence would observe under like circumstances. If, under all the circumstances, the owner omits such precautions as a man of ordinary care and prudence, under like circumstances, would observe, he is guilty of negligence. We are fully satisfied that the principle under consideration is sound, and that its application would not operate oppressively on the owner. We see no good reason for receding from the position already taken by this court in cases of this character.

The defendant tendered the following instruction: “The jury are instructed that in this case the plaintiff claims, in substance, that the railroad company was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured, and that the turntable in question was a machine that was naturally enticing to children, and that children were tempted to play on and about this turntable. On this point the court instructs you that the law is that the railroad company has the right to the exclusive use of its own grounds and turntable and other machinery, the same as any other person has the exclusive right and use of his own property and premises, and that the company was under no obligations to keep its turntable in such a condition that it would be safe and convenient for children to play upon and to use as a plaything; and the court instructs you that the defendant was under no obligation to keep a watchman at and about said turntable for the purpose of excluding children therefrom; that the company was only required to exercise reasonable care in the placing and using of said turntable, and have the same fitted with such appliances as would make it reasonably safe and convenient for the purpose for which it was intended.” The court refused the instruction as tendered, and modified it by omitting the concluding clause, and inserting the following: “But the company was required to exercise reasonable care in the placing and fastening of the turntable and having the same fitted with such appliances as would make it reasonably safe in the situation where it was placed, under the circumstances as disclosed in this case.”

The instruction as thus modified was given. The complaint of the refusal of the court to give the instruction as tendered is covered by what has been said on the sufficiency of the facts to sustain the verdict. But the defendant insists that the instruction as modified is erroneous, in that it submitted to the jury the proper construction and location of the turntable. Taking the instruction as a whole, we do not think it admits of that construction. The opening sentence informs the jury of the nature of the plaintiff's claim; that such claim is that the defendant “was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured.” In paragraph 7 of the instructions the jury were told that the action rests on the alleged negligence of the defendant in not keeping the turntable guarded, locked, or properly fastened. In the fifteenth paragraph they were told that the defendant “had a right to have and use the turntable in the carrying on of its business as a railroad company.” The rejected clause of the instruction under consideration, as tendered by the defendant, uses the word “placing,” the only word used in the [91 N.W. 884] substituted clause that could be construed as a reference to the location or construction of the turntable. From these considerations, we think the clause complained of has no reference to the location nor original construction of the turntable, but refers rather to the condition in which it was to be kept or left when not in use. In the light of the entire charge, the jury could hardly have understood it to refer to the location or construction of the turntable.

Another instruction tendered by the defendant is as follows: “If the jury find from the evidence that the turntable in question was a ponderous and powerful machine when set in motion, and that according to its mechanism it would turn easily, and when turned, even for a small space, it would accumulate a force of momentum of great power; and if you further find that the young people and children meddling with said turntable at the time of the injury complained of worked upon the levers of said machine back and forth through the small space in which the turntable could be moved, even when the fastenings were in proper place and held the machine; and that by the motion and momentum of the machine set in motion by the young people at the levers the fastenings became loosened so as to permit the turntable to go around,--then you are instructed that under this state of facts the plaintiff could not recover, and your verdict should be for the defendant.” It was refused, and its refusal is now assigned as error. The instruction entirely omits the question of due care. There was evidence to the effect that the lock used for the turntable was little, if any, obstacle to the use of the turntable by children, because one of the staples was loose, and could be easily removed. The instruction, if given, would have justified a finding of due care, however carelessly the turntable was fastened. That would have been erroneous. The instruction, in our opinion, was properly refused.

The court on its own motion gave the following instruction as part of the charge to the jury: “But if you find, from a preponderance of the evidence, that the turntable in question was a dangerous machine, and the defendants did know, or had reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accident, this would be evidence of negligence, and would be answerable for damages caused thereby to the children of tender years, and who did not possess sufficient knowledge or understanding to know the danger or dangerous character of such turntable. However, the defendants are not insurers of the limbs of those, whether adults or children, who may resort to their grounds, and there are many injuries continually happening which involve no pecuniary liability to any one.” The defendant contends that there is no evidence to support the hypothesis that the defendant took no means to keep the children away, and no means to prevent the accident. The evidence of at least one of the children who was present at the time, and who assisted in revolving the turntable at the time, is to the effect that it was not locked, but yielded at once to their efforts to move it. There is other evidence to the same effect. Another witness testifies that it was never locked. As to the means taken to keep the children from the turntable, a considerable portion of the testimony offered on behalf of the plaintiff tends to show that no such means were taken. The defendant contends that the location of the turntable, at a distance from the town, was, in itself, a means of protection But the instruction has reference to circum stances as they existed at the time of the accident. The location of the turntable, as a means of protection, is important only as tending to show the improbability of children resorting to it, and that the defendant could not reasonably be expected to anticipate that they would do so. It becomes immaterial when, according to the hypothesis, the defendant knew, or had good reason to believe, that children would resort to the turntable and be injured by it. The instruction, we think, finds ample basis in the evidence.

Another criticism urged against this instruction is that it invades the province of the jury, in that it charges that if the defendant, under the circumstances stated, took no means to keep the children away, and no means to prevent the accident, it would be answerable in damages. The defendant insists that the question of negligence was one for the jury, and that it was not within the province of the court to say, in effect, that a certain state of facts constituted negligence. We are inclined to think this criticism is just. From the wording of the instruction, the jury could hardly draw any other conclusion than that, if they found the facts specifically stated therein, the verdict should be for the plaintiff; in other words, that such facts were to be considered by them, not only as evidence of negligence, but as negligence per se. It has been repeatedly held by this court that it is erroneous to single out and state a group of facts, and inform the jury that if such facts are found it establishes the existence of negligence. The question of negligence is seldom one of law, and the facts enumerated in the instruction should have been considered by the jury as evidence of negligence, to be considered in the light of all the other facts and circumstances shown in evidence. To thus single out and state a group of facts has been held by this court to amount to an improper comment on questions of fact by the court. We think the instruction was erroneous, and that the following cases support that view: [91 N.W. 885] Railway Co. v. Baier, 37 Neb. 235, 55 N. W. 913;Railway Co. v. Morgan, 40 Neb. 604, 59 N. W. 81; Railroad Co. v. Oleson, 40 Neb. 889, 59 N. W. 354;Village of Culbertson v. Holliday, 50 Neb. 229, 69 N. W. 853.

The nineteenth and twentieth paragraphs of the charge to the jury related to the measure of damages, and are as follows:

“(19) The jury are instructed if from the evidence in the case, and under the constructions of the court, the jury shall find the issues for the plaintiff, and that the plaintiff has sustained damages, as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.

(20) The jury are instructed that if, on the evidence in the case and under the instructions of the court, they find the issue in favor of the plaintiff, and that the plaintiff has sustained damages, as charged in the petition, then in assessing such damages they should take into consideration the age, expectancy of life of the plaintiff, his inability to labor as shown by the evidence, his mental anguish and bodily pain, if any has been shown, and whether or not the injury to the plaintiff is permanent. You should take all these elements into consideration, and allow him such a sum as will be fair and just compensation for the injuries sustained, not exceeding the sum of $25,000. But you cannot allow him exemplary damages; that is, damages by way of punishment of the defendants.”

One objection urged against these instructions is that the jury were required to consider the facts and circumstances in evidence “in connection with their own knowledge, observation, and experience in the business affairs of life.” It is not only proper, but necessary, that, in arriving at a verdict, the jury should make use of such knowledge as they possess in common with other men. But the instruction imposes no such limitation. We think the jury might have fairly inferred from it that they were required to bring to bear any special knowledge which they might have on the subject, or the result of their observations and experience in like cases, which would be manifestly improper.

Another objection to the instructions in this behalf is that the jury were required to take into account the plaintiff's inability to labor as an element of damage. The defendant insists that as the plaintiff is a minor, in the custody of his father, who is charged with his support and entitled to his earnings during minority, his inability to labor during his minority is not a proper element of damage in this case. The case of Railroad Co. v. Johnson (Tex. Sup.) 44 S. W. 1067, was an action for personal injuries to an infant, and an instruction not different in principle from those complained of was held reversible error for the reasons now urged by the defendant. The same principle was involved in an instruction considered in Decker v. McSorley (Wis.) 86 N. W. 554. The instruction was condemned.

A further objection is urged against these instructions, and that is that they instruct the jury that the damages shall not exceed $25,000. The defendant insists that an intimation was thereby conveyed to the jury that they might allow that sum, and that such intimation was prejudicial to the defendant. No authority is cited in support of this objection, nor are we aware that any exists. It is not unusual for courts to instruct the jury as to the limit of damages allowable under the pleadings in the case. As a matter of practice, we believe it should be omitted. If the damages awarded exceed the amount allowable, the remedy is simple. We believe that most lawyers will agree with us that the intimation conveyed to the jury by such a statement is dangerous to the defendant. We do not go to the extent of saying that it would constitute reversible error, but we believe the practice should be discountenanced.

In the course of the trial the court permitted the plaintiff to introduce in evidence a certain printed rule of the defendant which provided that turntables should be kept locked when not in use, and that it was the duty of agents at the stations where there was no engine house foreman to see that such turntables were locked after being used. Parol testimony was admitted to the same effect. It also admitted evidence to the effect that immediately after the accident the station agent went to the turntable and locked it. The defendant insists that the admission of this evidence was error. We do not think so. It was necessary to bring home to the defendant knowledge that children were likely to resort to the turntable. There is evidence tending to show that both employés mentioned in the rule introduced in evidence had knowledge of such fact, and the rule, taken in connection with the evidence to their relations to the defendant, tends to bring such knowledge home to the defendant. That the agent locked the turntable immediately after the accident had a bearing on the question of whether the turntable was locked before the accident, which was one of the issues in the case.

Another witness was permitted to testify that he went to the turntable after the accident, on the same day, and found the table unlocked. The defendant argues that it was not admissible to show the condition of the table after the accident occurred. This evidence, we think, is also admissible, as tending to show that the children found the [91 N.W. 886] turntable unlocked before the accident occurred.

Objection is also made to the admission of evidence of testimony to the effect that the roadmaster, or division superintendent, which one is not stated, was at the turntable after the accident, how long after does not appear. The object of this evidence is not clear, nor are we able to see how it had any influence on the verdict one way or another. The objection that it was immaterial appears to be well founded, but we cannot see that its admission would constitute reversible error.

The defendant complains of the admission of testimony to the effect that the station agent on the day of the accident met the children, who were playing with the push car, rode a short distance on the push car, and said nothing to the children about playing with it. The ground of this complaint appears to be that playing with the push car, when the agent saw them and took part in the sport, and playing on the turntable, some 500 yards distant, were independent transactions, and the agent could not reasonably anticipate that they would go to the turntable from the place he left them, and therefore was not required to warn them of its danger. It seems to us that the station grounds as a whole were dangerous premises, especially for children of that age. The turntable was only one of its many dangers. The evidence objected to, it seems to us, was competent to show that the defendant had knowledge that children frequented these dangerous premises, and that they did so with its knowledge and consent. We think there was no error in the admission of this testimony.

Certain impeaching questions were addressed to one of the defendant's witnesses which were objected to by the defendant on the ground, among others, that no foundation had been laid. Before the questions were asked, the defendant's attention was directed to the time and place where the contradictory statements were made, and to the persons in whose presence they were made. Taken in connection with his testimony on direct examination, the witness could not fail to understand to what the questions related. We think the foundation was sufficient, and that his answers, some of them showing that he had made contradictory statements, were properly admitted.

We recommend that the judgment of the district court be reversed, and the cause remanded for further proceedings according to law.

AMES and DUFFIE, CC., concur.

PER CURIAM.

For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.

159 F.2d 169 (1947)

UNITED STATES et al.
v.
CARROLL TOWING CO., Inc., et al.

Nos. 96, 97, Dockets 20371, 20372.

Circuit Court of Appeals, Second Circuit.

January 9, 1947.

[159 F.2d 170] Robert S. Erskine and Kirlin, Campbell, Hickox & Keating, all of New York City (John H. Hanrahan, of New York City, of counsel), for Grace Line, Inc.

Edmund F. Lamb and Purdy & Lamb, all of New York City, for Conners Marine Co., Inc.,

Christopher E. Heckman and Foley & Martin, all of New York City, for Carroll Towing Co., Inc.

Frederic Conger and Burlingham, Veeder, Clark & Hupper, all of New York City (Chauncey I. Clark, of New York City, of counsel), for Pennsylvania Railroad Company.

Before L. HAND, CHASE and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

These appeals concern the sinking of the barge, "Anna C," on January 4, 1944, off Pier 51, North River. The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, "Carroll," of which the Carroll Towing Co., Inc., was the owner. The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge's cargo of flour, and to the Pennsylvania Railroad Company, for expenses in salving the cargo and barge; and it held the Carroll Company also liable to the Conners Company for one half the damage to the barge; these liabilities being all subject to limitation. The decree in the libel suit held the Grace Line primarily liable for the other half of the damage to the barge, and for any part of the first half, not recovered against the Carroll Company because of limitation of liability; it also held the Pennsylvania Railroad secondarily liable for the same amount that the Grace Line was liable. The Carroll Company and the Pennsylvania Railroad Company have filed assignments of error.

The facts, as the judge found them, were as follows. On June 20, 1943, the Conners Company chartered the barge, "Anna C," to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a barge, apparently limited to the hours 8 A.M. to 4 P.M. On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52. At some time not disclosed, five other barges were moored outside her, extending into the river; her lines to the pier were not then strengthened. At the end of the next pier north (called the Public Pier), lay four barges; and a line had been made fast from the outermost of these to the fourth barge of the tier hanging to Pier 52. The purpose of this line is not entirely apparent, and in any event it obstructed entrance into the slip between the two tiers of barges. The Grace Line, which had chartered the tug, "Carroll," sent her down to the locus in quo to "drill" out one of the barges which lay at the end of the Public Pier; and in order to do so it was necessary to throw off the line between the two tiers. On board the "Carroll" at the time were not only her master, but a "harbormaster" employed by the Grace Line. Before throwing off the line between the two tiers, the "Carroll" nosed up against the outer barge of the tier lying off Pier 52, ran a line from her own stem to the middle bit of that barge, and kept working her engines "slow ahead" against the ebb tide which was making at that time. The captain of the "Carroll" put a deckhand and the "harbormaster" on the barges, told them to throw off the line which barred the entrance to the slip; [159 F.2d 171] but, before doing so, to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river. The "harbormaster" and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the "Anna C," to the pier.

After doing so, they threw off the line between the two tiers and again boarded the "Carroll," which backed away from the outside barge, preparatory to "drilling" out the barge she was after in the tier off the Public Pier. She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the "Anna C," either rendered, or carried away. The tide and wind carried down the six barges, still holding together, until the "Anna C" fetched up against a tanker, lying on the north side of the pier below — Pier 51 — whose propeller broke a hole in her at or near her bottom. Shortly thereafter: i. e., at about 2:15 P.M., she careened, dumped her cargo of flour and sank. The tug, "Grace," owned by the Grace Line, and the "Carroll," came to the help of the flotilla after it broke loose; and, as both had syphon pumps on board, they could have kept the "Anna C" afloat, had they learned of her condition; but the bargee had left her on the evening before, and nobody was on board to observe that she was leaking. The Grace Line wishes to exonerate itself from all liability because the "harbormaster" was not authorized to pass on the sufficiency of the fasts of the "Anna C" which held the tier to Pier 52; the Carroll Company wishes to charge the Grace Line with the entire liability because the "harbormaster" was given an over-all authority. Both wish to charge the "Anna C" with a share of all her damages, or at least with so much as resulted from her sinking. The Pennsylvania Railroad Company also wishes to hold the barge liable. The Conners Company wishes the decrees to be affirmed.

The first question is whether the Grace Line should be held liable at all for any part of the damages. The answer depends first upon how far the "harbormaster's" authority went, for concededly he was an employee of some sort. Although the judge made no other finding of fact than that he was an "employee," in his second conclusion of law he held that the Grace Line was "responsible for his negligence." Since the facts on which he based this liability do not appear, we cannot give that weight to the conclusion which we should to a finding of fact; but it so happens that on cross-examination the "harbormaster" showed that he was authorized to pass on the sufficiency of the fasts of the "Anna C." He said that it was part of his job to tie up barges; that when he came "to tie up a barge" he had "to go in and look at the barges that are inside the barge" he was "handling"; that in such cases "most of the time" he went in "to see that the lines to the inside barges are strong enough to hold these barges"; and that "if they are not" he "put out sufficient other lines as are necessary." That does not, however, determine the other question: i. e., whether, when the master of the "Carroll" told him and the deckhand to go aboard the tier and look at the fasts, preparatory to casting off the line between the tiers, the tug master meant the "harbormaster" to exercise a joint authority with the deckhand. As to this the judge in his tenth finding said: "The captain of the Carroll then put the deckhand of the tug and the harbor master aboard the boats at the end of Pier 52 to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so." Whatever doubts the testimony of the "harbormaster" might raise, this finding settles it for us that the master of the "Carroll" deputed the deckhand and the "harbormaster," jointly to pass upon the sufficiency of the "Anna C's" fasts to the pier. The case is stronger against the Grace Line than Rice v. The Marion A. C. Meseck,^[1] was against the tug there held liable, because the tug had only acted under the express orders of the "harbormaster." Here, although the relations were reversed, that makes no difference in principle; and the "harbormaster" was not instructed what he should do about the fasts, but was allowed [159 F.2d 172] to use his own judgment. The fact that the deckhand shared in this decision, did not exonerate him, and there is no reason why both should not be held equally liable, as the judge held them.

We cannot, however, excuse the Conners Company for the bargee's failure to care for the barge, and we think that this prevents full recovery. First as to the facts. As we have said, the deckhand and the "harbormaster" jointly undertook to pass upon the "Anna C's" fasts to the pier; and even though we assume that the bargee was responsible for his fasts after the other barges were added outside, there is not the slightest ground for saying that the deckhand and the "harbormaster" would have paid any attention to any protest which he might have made, had he been there. We do not therefore attribute it as in any degree a fault of the "Anna C" that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the Grace Line for any injury she suffered from the contact with the tanker's propeller, which we shall speak of as the "collision damages." On the other hand, if the bargee had been on board, and had done his duty to his employer, he would have gone below at once, examined the injury, and called for help from the "Carroll" and the Grace Line tug. Moreover, it is clear that these tugs could have kept the barge afloat, until they had safely beached her, and saved her cargo. This would have avoided what we shall call the "sinking damages." Thus, if it was a failure in the Conner Company's proper care of its own barge, for the bargee to be absent, the company can recover only one third of the "sinking" damages from the Carroll Company and one third from the Grace Line. For this reason the question arises whether a barge owner is slack in the care of his barge if the bargee is absent.

As to the consequences of a bargee's absence from his barge there have been a number of decisions; and we cannot agree that it is never ground for liability even to other vessels who may be injured. As early as 1843, Judge Sprague in Clapp v. Young,^[2] held a schooner liable which broke adrift from her moorings in a gale in Provincetown Harbor, and ran down another ship. The ground was that the owners of the offending ship had left no one on board, even though it was the custom in that harbor not to do so. Judge Tenney in Fenno v. The Mary E. Cuff,^[3] treated it as one of several faults against another vessel which was run down, to leave the offending vessel unattended in a storm in Port Jefferson Harbor. Judge Thomas in The On-the-Level,^[4] held liable for damage to a stake-boat, a barge moored to the stake-boat "south of Liberty Light, off the Jersey shore," because she had been left without a bargee; indeed he declared that the bargee's absence was "gross negligence." In the Kathryn B. Guinan,^[5] Ward, J., did indeed say that, when a barge was made fast to a pier in the harbor, as distinct from being in open waters, the bargee's absence would not be the basis for the owner's negligence. However, the facts in that case made no such holding necessary; the offending barge in fact had a bargee aboard though he was asleep. In the Beeko,^[6] Judge Campbell exonerated a power boat which had no watchman on board, which boys had maliciously cast loose from her moorings at the Marine Basin in Brooklyn and which collided with another vessel. Obviously that decision has no bearing on the facts at bar. In United States Trucking Corporation v. City of New York,^[7] the same judge refused to reduce the recovery of a coal hoister, injured at a foul berth, because the engineer was not on board; he had gone home for the night as was apparently his custom. We reversed the decree,^[8] but for another reason. In The Sadie,^[9] we affirmed Judge Coleman's holding^[10] that it was actionable negligence to leave without a bargee on board a barge made fast outside another barge, in the face of storm warnings. The damage was done to the [159 F.2d 173] inside barge. In The P. R. R. No. 216,^[11] we charged with liability a lighter which broke loose from, or was cast off, by a tanker to which she was moored, on the ground that her bargee should not have left her over Sunday. He could not know when the tanker might have to cast her off. We carried this so far in The East Indian,^[12] as to hold a lighter whose bargee went ashore for breakfast, during which the stevedores cast off some of the lighter's lines. True, the bargee came back after she was free and was then ineffectual in taking control of her before she damaged another vessel; but we held his absence itself a fault, knowing as he must have, that the stevedores were apt to cast off the lighter. The Conway No. 23^[13] went on the theory that the absence of the bargee had no connection with the damage done to the vessel itself; it assumed liability, if the contrary had been proved. In The Trenton,^[14] we refused to hold a moored vessel because another outside of her had overcharged her fasts. The bargee had gone away for the night when a storm arose; and our exoneration of the offending vessel did depend upon the theory that it was not negligent for the bargee to be away for the night; but no danger was apparently then to be apprehended. In Bouker Contracting Co. v. Williamsburgh Power Plant Corporation^[15] we charged a scow with half damages because her bargee left her without adequate precautions. In O'Donnell Transportation Co. v. M. & J. Tracy,^[16] we refused to charge a barge whose bargee had been absent from 9 A.M. to 1:30 P.M., having "left the vessel to go ashore for a time on his own business."

It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i. e., whether B > PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee's prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in "The Kathryn B. Guinan," supra;^[17] and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee's absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o'clock in the afternoon of January 3rd, and the flotilla broke away at about two o'clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence [159 F.2d 174] that he had no excuse for his absence. At the locus in quo — especially during the short January days and in the full tide of war activity — barges were being constantly "drilled" in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold — and it is all that we do hold — that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.

The decrees will be modified as follows. In the libel of the Conners Company against the Pennsylvania Railroad Company in which the Grace Line was impleaded, since the Grace Line is liable in solido, and the Carroll Company was not impleaded, the decree must be for full "collision damages" and half "sinking damages," and the Pennsylvania Railroad Company will be secondarily liable. In the limitation proceeding of the Carroll Company (the privilege of limitation being conceded), the claim of the United States and of the Pennsylvania Railroad Company will be allowed in full. Since the claim of the Conners Company for "collision damages" will be collected in full in the libel against the Grace Line, the claim will be disallowed pro tanto. The claim of the Conners Company for "sinking damages" being allowed for one half in the libel, will be allowed for only one sixth in the limitation proceeding. The Grace Line has claimed for only so much as the Conners Company may recover in the libel. That means that its claim will be for one half the "collision damages" and for one sixth the "sinking damages." If the fund be large enough, the result will be to throw one half the "collision damages" upon the Grace Line and one half on the Carroll Company; and one third of the "sinking damages" on the Conners Company, the Grace Line and the Carroll Company, each. If the fund is not large enough, the Grace Line will not be able altogether to recoup itself in the limitation proceeding for its proper contribution from the Carroll Company.

Decrees reversed and cause remanded for further proceedings in accordance with the foregoing.

[1] 2 Cir., 148 F.2d 522.

[2] Fed.Cas.No. 2786.

[3] D.C., 84 F. 719.

[4] D.C., 128 F. 511.

[5] 2 Cir., 176 F. 301.

[6] D.C., 10 F.2d 884.

[7] D.C., 14 F.2d 528.

[8] 2 Cir., 18 F.2d 775.

[9] 2 Cir., 62 F.2d 1076.

[10] D.C., 57 F.2d 908.

[11] 56 F.2d 604.

[12] 2 Cir., 62 F.2d 242.

[13] 2 Cir., 64 F.2d 121.

[14] 2 Cir., 72 F.2d 283.

[15] 2 Cir., 130 F.2d 96, 98.

[16] 2 Cir., 150 F.2d 735, 738.

[17] 2 Cir., 176 F.2d 301.

227 N.Y. 208

LEO ADAMS, an Infant, by MARCY E. ADAMS, His Guardian ad Litem, Respondent,

v.

GEORGE BULLOCK, as Receiver of the BUFFALO AND LAKE ERIE TRACTION COMPANY, Appellant.

Negligence — injury to boy who touched trolley wire with a piece of wire — defendant not liable in absence of any evidence that reasonable precautions had not been taken against injury from trolley wire.

The defendant runs a trolley line which is crossed by a bridge. The plaintiff, a boy of about twelve years of age, while crossing the bridge, in swinging a wire about eight feet long, brought it in contact with defendant's trolley wire which was between four and five feet below the top of the parapet of the bridge, which parapet was eighteen inches wide. By this contact the plaintiff was shocked and burned. Held, that there was no evidence that defendant had failed in its duty to adopt reasonable precautions against injury from the wire. Hence a recovery by plaintiff cannot be sustained.

Adams v. Bullock, 188 App. Div. 948, reversed.

(Argued October 23, 1919; decided November 18, 1919.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 15, 1919, affirming a judgment in favor of plaintiff entered upon a verdict.

The nature of the action and the facts, so far as material, are stated in the opinion.

Thomas R. Wheeler for appellant. The defendant was not guilty of negligence. The trial court erred in submitting the case to the jury. (Freeman v. B.H.R.R. Co., 54 App. Div. 596; Sheffield Co. v. Morton, 161 Ala. 153; Kempf v. S. & I. E. R, Co., 82 Wash. 263; Johnston N. O. T. H. El. Co., 17 L. R. A. [N. S.] 435; Mayfield W. & L. Co. v. Webb, 33 Ky. L. 909; Graves v. Washington Water Power Co., 44 Wash. 675.)

Murle L. Rowe and Nelson J. Palmer for respondent. The negligence of the defendant was a question of fact [209]

for the jury to determine. (Hickok v. A. L., H. & P. Co., 200 N.Y. 465; Webster v. Richmond Light & R.R. Co., 158 App. Div. 210; Braun v. Buffalo General ElectricalCo., 200 N.Y. 484,492; Caglione v. Mount Morris Electric Light, 56 App. Div. 191; Paine v. Electric Illuminating, etc., Co., 64 App. Div. 477; Wagner v. Brooklyn Heights R. R. Co., 69 App. Div. 349; 174 N. Y. 520; Morhard v. Richmond Light & R. R. Co., 111 App. Div. 353.) The defendant was negligent because it maintained a wire carrying a high and dangerous voltage of electricity, unguarded in any manner, at a point in dangerous proximity to a place frequented by pedestrians and used by children as a playground. (Braun v. Buffalo General Electrical Co., 200 N. Y. 484; Wilson v. American Bridge Co., 74 App. Div. 596; Wittleder v. Electric Co., 47 App. Div. 410; 50 App. Div. 478; 219 N.Y. 443; Travell v. Bannerman, 71 App. Div. 439; 174 N.Y. 49; Robertson v. Lighting & Power Co., 178 App. Div. 720.)

CARDOZO, J. The defendant runs a trolley line in the city of Dunkirk, employing the overhead wire system. At one point, the road is crossed by a bridge or culvert which carries the tracks of the Nickle Plate and Pennsylvania railroads. Pedestrians often use the bridge as a short cut between streets, and children play on it. On April 21, 1916, the plaintiff, a boy of twelve years, came across the bridge, swinging a wire about eight feet long. In swinging it, he brought it in contact with the defendant's trolley wire, which ran beneath the structure. The side of the bridge was protected by a parapet eighteen inches wide. Four feet seven and three-fourths inches below the top of the parapet, the trolley wire was strung. The plaintiff was shocked and burned when the wires came together. He had a verdict at Trial Term, which has been affirmed at the Appellate Division by a divided court.

We think the verdict cannot stand. The defendant in using an overhead trolley was in the lawful exercise of its [210] franchise. Negligence, therefore, cannot be imputed to it because it used that system and not another (Dumphy v. Montreal L., H. & P. Co., 1907 A.C. 454). There was, of course, a duty to adopt all reasonable precautions to minimize the resulting perils. We think there is no evidence that this duty was ignored. The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it. Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger. Reasonable care in the use of a destructive agency imports a high degree of vigilance (Nelson v. Branford L. & W. Co., 75 Conn. 548, 551; Braun v. Buffalo Gen. El. Co., 200 N.Y. 484). But no vigilance, however alert, unless fortified by the gift of prophecy, could have predicted the point upon the route where such an accident would occur. It might with equal reason have been expected anywhere else. At any point upon the route, a mischievous or thoughtless boy might touch the wire with a metal pole, or fling another wire across it (Green v. W.P. Rys. Co., 246 Penn. St. 340). If unable to reach it from the walk, he might stand upon a wagon or climb upon a tree. No special danger at this bridge warned the defendant that there was need of special measures of precaution. No like accident had occurred before.

No custom had been disregarded. We think that ordinary caution did not involve forethought of this extraordinary peril. It has been so ruled in like circumstances by courts in other jurisdictions (Green v. W.P. Rys. Co., supra; Vannatta v. Lancaster L. & P. Co., 164 Wis. 344; Parker v. Charlotte Elec. Ry. Co., 169 N.C. 68; Kempf v. S. & I. E. R. R. Co., 82 Wash. 263; Sheffield Co. v. Morton, 161 Ala. 153). Nothing to the contrary was held in Braun v. Buffalo Gen, El. Co. (200 N. Y. 484) or Witlleder v. Citizens Electric Ill, Co. (47 App. Div. 410). In those cases, the accidents were well within the range of prudent foresight (Braun v. Buffalo Gen. El. Co., supra, at p. [211] 494). That was also the basis of the ruling in Nelson v. Branford Lighting & Water Co. (75 Conn. 548, 551). There is, we may add, a distinction, not to be ignored, between electric light and trolley wires. The distinction is that the former may be insulated. Chance of harm, though remote, may betoken negligence, if needless. Facility of protection may impose a duty to protect. With trolley wires, the case is different. Insulation is impossible. Guards here and there are of little value. To avert the possibility of this accident and others like it at one point or another on the route, the defendant must have abandoned the overhead system, and put the wires underground. Neither its power nor its duty to make the change is shown. To hold it liable upon the facts exhibited in this record would be to charge it as an insurer.

The judgment should be reversed and a new trial granted, with costs to abide the event.

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CRANE and ANDREWS, JJ., concur.

Judgments reversed, etc.

[292 U.S. 99] Mr. Wm. St. J. Wines, of Springfield, Ill., for petitioner.

Mr. Homer Hall, of St. Louis, Mo., for respondent.

Mr. Justice CARDOZO delivered the opinion of the Court.

John Pokora, driving his truck across a railway grade crossing in the city of Spring field, Ill., was struck by a train and injured. Upon the trial of his suit for damages, the District Court held that he had been guilty of contributory negligence, and directed a verdict for the defendant. The Circuit Court of Appeals (one judge dissenting) affirmed (66 F.(2d) 166), resting its judgment on the opinion of this court in B. & O.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A.L.R. 645. A writ of certiorari brings the case here.

Pokora was an ice dealer, and had come to the crossing to load his truck with ice. The tracks of the Wabash Railway are laid along Tenth street, which runs north and south. There is a crossing at Edwards street running east and west. Two ice depots are on opposite corners of Tenth and Edward streets; one at the northeast corner, the other at the southwest. Pokora, driving west along Edwards street, stopped at the first of these corners to get his load of ice, but found so many trucks ahead of him that he decided to try the depot on the other side of the way. In this crossing of the railway, the accident occurred.

[292 U.S. 100] The defendant has four tracks on Tenth street; a switch track on the east, then the main track, and then two switches. Pokora, as he left the northeast corner where his truck had been stopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet east of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet from the north line of Edwards street, cut off his view of the tracks beyond him to the north. At the same time he listened. There was neither bell nor whistle. Still listening, he crossed the switch, and reaching the main track was struck by a passenger train coming from the north at a speed of twenty-five to thirty miles an hour.

The burden of proof was on the defendant to make out the defense of contributory negligence. Miller v. Union Pacific R. Co., 290 U.S. 227, 232, 54 S.Ct. 172, 78 L.Ed. 285. The record does not show in any conclusive way that the train was visible to Pokora while there was still time to stop. A space of eight feet lay between the west rail of the switch and the east rail of the main track, but there was an overhang of the locomotive (perhaps two and a half or three feet), as well as an overhang of the box cars, which brought the zone of danger even nearer. When the front of the truck had come within this zone, Pokora was on his seat, and so was farther back (perhaps five feet or even more), just how far we do not know, for the defendant has omitted to make proof of the dimensions. Nice calculations are submitted in an effort to make out that there was a glimpse of the main track before the switch was fully cleared. Two feet farther back the track was visible, it is said, for about 130 or 140 feet. But the view from that position does not tell us anything of significance unless we know also the position of the train. Pokora was not protected by his glimpse of 130 feet if the train at the same moment was 150 feet away or farther. For all that appears he had no view of the main track northward, or none for [292 U.S. 101] a substantial distance, till the train was so near that escape had been cut off. Cf. Dobson v. St. Louis S.F. Ry. Co., 223 Mo.App. 812, 822, 10 S.W.(2d) 528; Turner v. Minneapolis, St. P. & S.S.M.R. Co., 164 Minn. 335, 341, 205 N.W. 213.

In such circumstances the question, we think, was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt it was his duty to look along the track from his seat, if looking would avail to warn him of the danger. This does not mean, however, that if vision was cut off by obstacles, there was negligence in going on, any more than there would have been in trusting to his ears if vision had been cut off by the darkness of the night. Cf. Norfolk & W. Ry. v. Holbrook (C.C.A.) 27 F.(2d) 326. Pokora made his crossing in the daytime, but like the traveler by night he used the faculties available to one in his position. Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690, Ann. Cas. 1915B, 598; Parsons v. Syracuse, B. & N.Y.R. Co., 205 N.Y. 226, 228, 98 N.E. 331. A jury, but not the court, might say that with faculties thus limited he should have found some other means of assuring himself of safety before venturing to cross. The crossing was a frequented highway in a populous city. Behind him was a line of other cars, making ready to follow him. To some extent, at least, there was assurance in the thought that the defendant would not run its train at such a time and place without sounding bell or whistle. L. & N.R. Co. v. Summers (C.C.A.) 125 F. 719, 721; Smith-Hurd Rev. St. 1933, c. 114, § 59, Illinois Revised Statutes (1933 Ed.), c. 114, par. 84.^[1] Indeed, the [292 U.S. 102] statutory signals did not exhaust the defendant's duty when to its knowledge there was special danger to the traveler through obstructions on the roadbed narrowing the field of vision. Wright v. St. Louis-S.F. Ry. Co., 327 Mo. 557, 566, 37 S.W.(2d) 591; Hires v. Atlantic City R. Co., 66 N.J. Law, 30, 48 A. 1002; Cordell v. N.Y.C. & H.R.R. Co., 70 N.Y. 119, 26 Am.Rep. 550. All this the plaintiff, like any other reasonable traveler, might fairly take into account. All this must be taken into account by us in comparing what he did with the conduct reasonably to be expected of reasonable men. Grand Trunk R. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485; Flannelly v. Delaware & Hudson Co., 225 U.S. 597, 32 S.Ct. 783, 56 L.Ed. 1221, 44 L.R.A.(N.S.) 154.

The argument is made, however, that our decision in B. & O.R. Co. v. Goodman, supra, is a barrier in the plaintiff's path, irrespective of the conclusion that might commend itself if the question were at large. There is no doubt that the opinion in that case is correct in its result. Goodman, the driver, traveling only five or six miles an hour, had, before reaching the track, a clear space of eighteen feet within which the train was plainly visible.^[2] With that opportunity, he fell short of the legal standard of duty established for a traveler when he failed to look and see. This was decisive of the case. But the court did not stop there. It added a remark, unnecessary upon the facts before it, which has been a fertile source of controversy. 'In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.'

There is need at this stage to clear the ground of brushwood that may obscure the point at issue. We do [292 U.S. 103] not now inquire into the existence of a duty to stop, disconnected from a duty to get out and reconnoitre. The inquiry, if pursued, would lead us into the thickets of conflicting judgments.^[3] Some courts apply what is often spoken of as the Pennsylvania rule, and impose an unyielding duty to stop, as well as to look and listen, no matter how clear the crossing or the tracks on either side. See, e.g., Benner v. Philadelphia & Reading R. Co., 262 Pa. 307, 105 A. 283, 2 A.L.R. 759; Thompson v. Pennsylvania R. Co., 215 Pa. 113, 64 A. 323, 7 Ann.Cas. 351; Hines v. Cooper, 205 Ala. 70, 88 So. 133; cf. Pennsylvania R. Co. v. Yingling, 148 Md. 169, 129 A. 36, 41 A.L.R. 398. Other courts, the majority, adopt the rule that the traveler must look and listen, but that the existence of a duty to stop depends upon the circumstances, and hence generally, even if not invariably, upon the judgment of the jury. See, e.g., Judson v. Central Vermont R. Co., 158 N.Y. 597, 605, 606, 53 N.E. 514, and cases cited; Love v. Fort Dodge R. Co., 207 Iowa, 1278, 1286, 224 N.W. 815; Turner v. Minneapolis R. Co., supra; Wisconsin & Arkansas Lumber Co. v. Brady, 157 Ark. 449, 454, 248 S.W. 278; cf. Metcalf v. Central Vermont R. Co., 78 Conn. 614, 63 A. 633; Gills v. N.Y., C. & St. L.R. Co., 342 Ill. 455, 174 N.E. 523. The subject has been less considered in this court, but in none of its opinions is there a suggestion that at any and every crossing the duty to stop is absolute, irrespective of the danger. Not even in B. & O.R. Co. v. Goodman, supra, which goes farther than the earlier cases, is there support for such a rule. To the contrary, the opinion makes it clear that the duty is conditioned upon the presence of impediments whereby sight and hearing become inadequate for the traveler's protection. Cf. Murray v. So. Pacific Co., 177 Cal. 1, 10, 169 P. 675; Williams v. Iola Electric R. Co., 102 Kan. 268, 271, 170 P. 397.

[292 U.S. 104] Choice between these diversities of doctrine is unnecessary for the decision of the case at hand. Here the fact is not disputed that the plaintiff did stop before he started to cross the tracks. If we assume that by reason of the box cars, there was a duty to stop again when the obstructions had been cleared, that duty did not arise unless a stop could be made safely after the point of clearance had been reached. See, e.g., Dobson v. St. Louis-S.F. Ry. Co., supra. For reasons already stated, the testimony permits the inference that the truck was in the zone of danger by the time the field of vision was enlarged. No stop would then have helped the plaintiff if he remained seated on his truck, or so the triers of the facts might find. His case was for the jury, unless as a matter of law he was subject to a duty to get out of the vehicle before it crossed the switch, walk forward to the front, and then, afoot, survey the scene. We must say whether his failure to do this was negligence so obvious and certain that one conclusion and one only is permissible for rational and candid minds. Grand Trunk Ry. Co. v. Ives, supra.

Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets his car in motion, the hidden train may be upon him. See, e.g., Torgeson v. Missouri-K.-T.R. Co., 124 Kan. 798, 800, 801, 262 P. 564, 55 A.L.R. 1335; Dobson v. St. Louis-S.F.R. Co., supra; Key v. Carolina & N.W.R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 530. Often the added safeguard will be dubious though the track happens to be straight, as [292 U.S. 105] it seems that this one was, at all events as far as the station, about five blocks to the north. A train traveling at a speed of thirty miles an hour will cover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the driver turns his back to regain the waiting car, and may then descend upon him suddenly when his car is on the track. Instead of helping himself by getting out, he might do better to press forward with all his faculties alert. So a train at a neighboring station, apparently at rest and harmless, may be transformed in a few seconds into an instrument of destruction. At times the course of safety may be different. One can figure to oneself a roadbed so level and unbroken that getting out will be a gain. Even then the balance of advantage depends on many circumstances and can be easily disturbed. Where was Pokora to leave his truck after getting out to reconnoitre? If he was to leave it on the switch, there was the possibility that the box cars would be shunted down upon him before he could regain his seat. The defendant did not show whether there was a locomotive at the forward end, or whether the cars were so few that a locomotive could be seen. If he was to leave his vehicle near the curb, there was even stronger reason to believe that the space to be covered in going back and forth would make his observations worthless. One must remember that while the traveler turns his eyes in one direction, a train or a loose engine may be approaching from the other.

Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. The need is the more urgent when there is no background of experience out of which the standards have emerged. They are then, not the natural flowerings of behavior in its customary forms, but rules artificially developed, and imposed from without. Extraordinary situations may not wisely or fairly be subjected to [292 U.S. 106] tests or regulations that are fitting for the commonplace or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury. Dolan v. D. & H.C. Co., 71 N.Y. 285, 288, 289; Davis v. N.Y.C. & H.R.R. Co., 47 N.Y. 400, 402. The opinion in Goodman's Case has been a source of confusion in the federal courts to the extent that it imposes a standard for application by the judge, and has had only wavering support in the courts of the states.^[4] We limit it accordingly.

The judgment should be reversed, and the cause remanded for further proceedings in accordance with this opinion.

It is so ordered.

[1] The Illinois Act provides: 'Every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.'

[2] For a full statement of the facts, see the opinion of the Circuit Court of Appeals, 10 F.(2d) 58, 59.

[3] The cases are collected in 1 A.L.R. 203 and 41 A.L.R. 405 notes.

[4] Many cases are collected in 43 Harvard Law Review 926, 929, 930, and in 56 A.L.R. 647 note.

See, also, Dobson v. St. Louis-S.F.R. Co., supra; Key v. Carolina & N.W.R. Co., supra; Gills v. N.Y., C. & St. L.R. Co., supra; Georgia Railroad & Banking Co. v. Stanley, supra; Miller v. N.Y.C.R. Co., 226 App.Div. 205, 208, 234 N.Y.S. 560; Id., 252 N.Y. 546, 170 N.E. 137; Schrader v. N.Y., C. & St. L.R. Co., 254 N.Y. 148, 151, 172 N.E. 272; Dolan v. D. & H.C. Co., supra; Huckshold v. St. L., I.M. & S.R. Co., 90 Mo. 548, 2 S.W. 794. Contra: Koster v. Southern Pacific Co., 207 Cal. 753, 762, 279 P. 788; Vaca v. Southern Pacific Co., 91 Cal.App. 470, 475, 267 P. 346; Davis v. Pere Marquette R. Co., 241 Mich. 166, 169, 216 N.W. 424; cf. Torgeson v. Missouri-K.-T.R. Co., supra.

[24 F.3d 40] Andrew Zabronsky, Susie Injijian, Deborah M. Heller, Sterns, Walker & Lods, San Francisco, CA, for plaintiff-appellant.

Philip R. Diamond, James C. Nielson, Peter M. Hart, Wright, Robinson, McCammon, Osthimer & Tatum, San Francisco, CA, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: FLETCHER, KOZINSKI and TROTT, Circuit Judges.

Opinion by Judge KOZINSKI.

KOZINSKI, Circuit Judge.

We are called upon to determine whether United Airlines took adequate measures to deal with that elementary notion of physics--what goes up, must come down. For, while the skies are friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from overhead compartments.

I

During the mad scramble that usually follows hard upon an airplane's arrival at the gate, a briefcase fell from an overhead compartment and seriously injured plaintiff Billie Jean Andrews. No one knows who opened the compartment or what caused the briefcase to fall, and Andrews doesn't claim that airline personnel were involved in stowing the object or opening the bin. Her claim, rather, is that the injury was foreseeable and the airline didn't prevent it.

The district court dismissed the suit on summary judgment, and we review de novo. Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1434 (9th Cir.1992). This is a diversity action brought in California, whose tort law applies. Id.

II

The parties agree that United Airlines is a common carrier and as such "owe[s] both a duty of utmost care and the vigilance of a very cautious person towards [its] passengers." Acosta v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 19, 27, 84 Cal.Rptr. 184, 465 P.2d 72 (1970); see Cal. Civil Code Sec. 2100 (West 1985); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 402 (9th Cir.1964). Though United is "responsible for any, even the slightest, negligence and [is] required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances," Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72, it is not an insurer of its passengers' safety, Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 785, 221 Cal.Rptr. 840, 710 P.2d 907 (1985). "[T]he degree of care and diligence which [it] must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of [its] business...." Id.

To show that United did not satisfy its duty of care toward its passengers, Ms. Andrews presented the testimony of two witnesses. The first was Janice Northcott, United's Manager of Inflight Safety, who disclosed that in 1987 the airline had received 135 reports of items falling from overhead bins. As a result of these incidents, Ms. Northcott testified, United decided to add a warning to its arrival announcements, to wit, that items stored overhead might have shifted during flight and passengers should use caution in opening the bins. ER 10. This [24 F.3d 41] announcement later became the industry standard. ER 81.

Ms. Andrews's second witness was safety and human factors expert Dr. David Thompson, who testified that United's announcement was ineffective because passengers opening overhead bins couldn't see objects poised to fall until the bins were opened, by which time it was too late. Dr. Thompson also testified that United could have taken additional steps to prevent the hazard, such as retrofitting its overhead bins with baggage nets, as some airlines had already done, ER 53,^[1] or by requiring passengers to store only lightweight items overhead, ER 54.^[2]

United argues that Andrews presented too little proof to satisfy her burden under Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). One hundred thirty-five reported incidents, United points out, are trivial when spread over the millions of passengers travelling on its 175,000 flights every year. ER 11. Even that number overstates the problem, according to United, because it includes events where passengers merely observed items falling from overhead bins but no one was struck or injured. ER 80.^[3] Indeed, United sees the low incidence of injuries as incontrovertible proof that the safety measures suggested by plaintiff's expert would not merit the additional cost and inconvenience to airline passengers.

III

It is a close question, but we conclude that plaintiff has made a sufficient case to overcome summary judgment. United is hard-pressed to dispute that its passengers are subject to a hazard from objects falling out of overhead bins, considering the warning its flight crews give hundreds of times each day. The case then turns on whether the hazard is serious enough to warrant more than a warning. Given the heightened duty of a common carrier, Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72, even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated "consistent with the character and mode of [airline travel] and the practical operation of [that] business...." Lopez, 40 Cal.3d at 785, 221 Cal.Rptr. 840, 710 P.2d 907. United has demonstrated neither that retrofitting overhead bins with netting (or other means) would be prohibitively expensive, nor that such steps would grossly interfere with the convenience of its passengers. Thus, a jury could find United has failed to do "all that human care, vigilance, and foresight reasonably can do under all the circumstances." Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72.

The reality, with which airline passengers are only too familiar, is that airline travel has changed significantly in recent years. As harried travelers try to avoid the agonizing ritual of checked baggage, they hand-carry more and larger items--computers, musical instruments, an occasional deceased relative. See Jo Beth McDaniel, Final Call for Carry-On Cargo, Travel Weekly, Feb. 28, 1988, at 22; Valarie Basheda, Airline Sued Over Fallen Luggage Cart, Gannett News Serv., Dec. 3, 1992. The airlines have coped with this trend, but perhaps not well enough. Given its awareness of the hazard, United may not have done everything technology permits and prudence dictates to eliminate it. See Treadwell v. Whittier, 80 Cal. 574, 600, 22 P. 266 (1889) ("common carriers ... must keep pace with science, art, and modern improvement"); [24 F.3d 42] Valente v. Sierra Ry., 151 Cal. 534, 543, 91 P. 481 (1907) (common carriers must use the best precautions in practical use "known to any company exercising the utmost care and diligence in keeping abreast with modern improvement in ... such precautions").

Jurors, many of whom will have been airline passengers, will be well equipped to decide whether United had a duty to do more than warn passengers about the possibility of falling baggage. A reasonable jury might conclude United should have done more; it might also find that United did enough. Either decision would be rational on the record presented to the district court which, of course, means summary judgment was not appropriate.

REVERSED AND REMANDED.

[1] Dr. Thompson testified British Airways began using restraining netting in 1989. ER 53. Apparently at least one other airline, Virgin Atlantic, has followed suit. See Kevin Rafferty, Tricky Thoughts Aloft, Financial Times, May 2, 1992 (Travel), at XI.

[2] He recognized that this was not a very practical solution from either the airlines' or the passengers' point of view.

[3] Curiously, neither side introduced these reports into the record. This proved fatal to Andrews's claim below, as the district court, relying on Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991), premised its dismissal on plaintiff's failure to present evidence that any of the 135 incidents bore "some rational relationship" to her own, so as to show United was on notice of a hazard. ER 124. While the district court may have been correct were notice in doubt, here United recognized the hazard as early as 1987. See p. 40-41 supra. The question is whether it did enough to address it.

Peter D. FitzGerald, Glens Falls, for appellant.

Robert S. Stewart, Glens Falls, for respondent.

OPINION OF THE COURT

JASEN, Judge.

On this appeal, we are called upon to define the scope of the duty owed by a [441 N.Y.S.2d 645] proprietor of a baseball field to the spectators attending its games. The specific question presented is whether such an owner, having provided protective screening for the area behind home plate, is liable in negligence for the injuries sustained by a spectator as a result of being struck by a foul ball while standing in an unscreened section of the field. This case does not involve the "culpable conduct" (CPLR 1411)--be it assumption of risk or contributory negligence--of a spectator injured in the course of a baseball game.

In the early afternoon of April 14, 1976, plaintiff attended a high school baseball game that was being played on a field owned and maintained by defendant Glens Falls City School District. The field was equipped with a backstop 24 feet high and 50 feet wide. This backstop was located 60 feet behind home plate and was positioned in front of bleachers that could seat approximately 120 adults. There was additional standing room behind the backstop as well. Two chain link fences, three feet in height, ran from each end of the backstop along the base lines to a distance approximately 60 feet behind first and third base.

Plaintiff arrived while the game was in progress and elected to view the contest from a position behind the three-foot fence along the third base line, approximately 10 to 15 feet from the end of the backstop and 60 feet from home plate. As there were no seating facilities for spectators along the base lines, plaintiff had to stand in order to watch the game. At the time, other spectators were also standing along the base lines behind the three-foot fence. There was, however, no proof that the screened bleachers behind home plate were filled or that plaintiff was prevented from watching the game from behind the backstop. Approximately 10 minutes after arriving at the baseball field, plaintiff was struck in the eye by a sharply hit foul ball, causing her serious and permanent injury.

The present action was then commenced by the plaintiff against the defendant school district. Alleging that the school district was negligent in failing to provide safe and proper screening devices along the base lines of its field, plaintiff sought judgment against the school district in the sum of $250,000. After trial, the jury returned a verdict in plaintiff's favor, assessing damages in the amount of $100,000 and apportioning fault at 65% to the school district and 35% to plaintiff.

On appeal, a divided Appellate Division, 75 A.D.2d 239, 429 N.Y.S.2d 467 affirmed the judgment rendered in plaintiff's favor, one Justice concurring in result and two Justices dissenting. The majority held that there was no error of law which warranted disturbing the jury's verdict. The dissenters were of the view that, as a matter of law, there was no showing of any negligence on the school district's part. According to the dissent, "adequately screened the area of its ball park behind home plate, the defendant fulfilled its duty to the plaintiff and cannot be held in negligence when she herself selected a position that was outside the area screened." (75 A.D.2d, p. 243, 429 N.Y.S.2d 467.) We agree.

Cases involving the liability of an owner of a baseball field for the injuries sustained by those attending its games are not altogether foreign to the courts of this State. Indeed, the doctrine of assumption of risk has had extensive application in a number of cases involving spectators struck by misguided baseballs. (E. g., O'Bryan v. O'Connor, 59 A.D.2d 219, 399 N.Y.S.2d 272; Dillard v. Little League Baseball, 55 A.D.2d 477, 390 N.Y.S.2d 735; Kozera v. Town of Hamburg, 40 A.D.2d 934, 337 N.Y.S.2d 761; Barker v. Topping, 15 A.D.2d 193, 222 N.Y.S.2d 658; Zeitz v. Cooperstown Baseball Centennial, 31 Misc.2d 142, 29 N.Y.S.2d 56; cf. Cadieux v. Board of Educ., 25 A.D.2d 579, 266 N.Y.S.2d 895; Ingersoll v. Onondaga Hockey Club, 245 App.Div. 137, 281 N.Y.S. 505.) As was aptly summarized by Chief Judge Cardozo, the spectator at a sporting event, no less than the participant, "accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the [441 N.Y.S.2d 646] chance of contact with the ball * * * The timorous may stay at home." (Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482-483, 166 N.E. 173.) However, because these cases arose prior to the adoption of the comparative negligence rule in this State (CPLR 1411), application of the assumption of risk doctrine served as a complete bar to a plaintiff's cause of action without regard to the degree of care exercised by the owner of the ball park. As a result, aside from two lower court decisions (Adonnino v. Village of Mount Morris, 171 Misc. 383, 12 N.Y.S.2d 658; Blackhall v. Capital Dist. Baseball Ass'n, 154 Misc. 640, 278 N.Y.S. 649, affd 157 Misc. 801, 285 N.Y.S. 695), there is no case law in this State which defines the duty of care owed by a proprietor of a baseball field to its spectators. We now define that duty.

At the outset, it should be stated that an owner of a baseball field is not an insurer of the safety of its spectators. Rather, like any other owner or occupier of land, it is only under a duty to exercise "reasonable care under the circumstances" to prevent injury to those who come to watch the games played on its field. (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794.) The perils of the game of baseball, however, are not so imminent that due care on the part of the owner requires that the entire playing field be screened. Indeed, many spectators prefer to sit where their view of the game is unobstructed by fences or protective netting and the proprietor of a ball park has a legitimate interest in catering to these desires. Thus, the critical question becomes what amount of screening must be provided by an owner of a baseball field before it will be found to have discharged its duty of care to its spectators.

Other jurisdictions addressing this question have adopted various standards in defining the duty of a ball park proprietor to protect its spectators from stray balls. Some courts have held that an owner merely has a duty to screen such seats as are adequate to provide its spectators with an opportunity to sit in a protected area if they so desire. (E. g., Crane v. Kansas City Baseball & Exhibition Co., 168 Mo.App. 301, 153 S.W. 1076; McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244 Other courts have stated that a proprietor of a baseball field need only screen as many seats as may reasonably be expected to be applied for on an ordinary occasion by those desiring such protection. (Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144; Leek v. Tacoma Baseball Club, 38 Wash.2d 362, 229 P.2d 329.) Most courts, however, have adopted a two-prong standard in defining the scope of an owner's duty to provide protective screening for its patrons. Under the majority rule, the owner must screen the most dangerous section of the field--the area behind home plate--and the screening that is provided must be sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion. (E. g., Maytnier v. Rush, 80 Ill.App.2d 336, 225 N.E.2d 83; Brisson v. Minneapolis Baseball & Athletic Ass'n, 185 Minn. 507, 240 N.W. 903; Erickson v. Lexington Baseball Club, 233 N.C. 627, 65 S.E.2d 140; see, generally, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured As Result of Other Hazards of Game, Ann., 91 A.L.R.3d 24.) We believe this to be the better rule and adopt this definition of the duty owed by an owner of a baseball field to provide protective screening for its spectators.

We hold that, in the exercise of reasonable care, the proprietor of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest. Moreover, such screening must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game. In so holding, we merely recognize the practical realities of this sporting event. As mentioned earlier, many spectators attending such exhibitions desire to watch the contest taking place on the playing field without having their view obstructed or obscured by a [441 N.Y.S.2d 647] fence or a protective net. In ministering to these desires, while at the same time providing adequate protection in the most dangerous area of the field for those spectators who wish to avail themselves of it, a proprietor fulfills its duty of reasonable care under such circumstances.

This is not to say that, by adequately screening the area of the field where the incidence of foul balls is the greatest, the risks inherent in viewing the game are completely eliminated. Rather, even after the exercise of reasonable care, some risk of being struck by a ball will continue to exist. Moreover, contrary to the supposition of the dissent, we do not attempt to prescribe precisely what, as a matter of law, are the required dimensions of a baseball field backstop. Nor do we suggest that where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue, the case should not be submitted to the jury. We merely hold that where a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence. Indeed, to adopt the view urged by the dissent would mean that every spectator injured by a foul ball, no matter where he is seated or standing in the ball park, would have an absolute right to go to the jury on every claim of negligence, regardless of the owner's efforts to provide reasonable protection and despite the spectator's failure to utilize the protection made available.^[*]

In this case, it is undisputed that the school district equipped its field with a backstop which was 24 feet high and 50 feet wide. Plaintiff presented no evidence that this backstop was inadequate in terms of providing protection for the area behind home plate where there was a substantial likelihood of spectators being struck by misguided balls or that there was an insufficient number of screened seats for those who might reasonably be expected to desire such protection. Under these circumstances, having provided adequate protection for those spectators seated, or standing, in the area behind home plate, liability may not be imposed on the school district for failing to provide additional screening along the baselines of its field where the risk of being struck by a stray ball was considerably less. (Accord Cates v. Cincinnati Exhibition Co., 215 N.C. 64, 1 S.E.2d 131; Curtis v. Portland Baseball Club, 130 Or. 93, 279 P. 277; see, also, Leek v. Tacoma Baseball Club, 38 Wash.2d 262, 229 P.2d 329, supra.)

As the dissent correctly notes, what constitutes reasonable care under the circumstances ordinarily is a question for the jury. This is not to say, however, that in every case involving a landowner's liability in negligence the question whether reasonable care was exercised must be determined by the jury. As we have only recently stated, "before it becomes appropriate for the jury to consider * * * such questions, the court, as it would in the usual negligence action, must make the threshold determination as to whether the plaintiff, by introducing adequate evidence on each element, has made out a case sufficient in law to support a favorable jury verdict. Only in those cases where there arises a real question as to the landowner's negligence should the jury be permitted to proceed. In all others, where proof of any essential element falls short, the case should go no further." (Basso v. Miller, 40 N.Y.2d 233, 241-242, 386 N.Y.S.2d 564, 352 N.E.2d 868, supra; see, also, Quinlan v. Cecchini, 41 N.Y.2d 686, 689, 394 N.Y.S.2d 872, 363 N.E.2d 578.)[441 N.Y.S.2d 648] In short, a court always is required to undertake an initial evaluation of the evidence to determine whether the plaintiff has established the elements necessary to a cause of action in negligence, to wit: (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof. (See Prosser, Torts § 30, p. 143.) In this regard, this court, on more than one occasion, has held that a defendant fulfilled its duty of care notwithstanding a jury verdict to the contrary. (E. g., Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Jenks v. McGranaghan, 30 N.Y.2d 475, 334 N.Y.S.2d 641, 285 N.E.2d 876; Kimbar v. Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197, 135 N.E.2d 708; Thompson v. Board of Educ., 280 N.Y. 92, 19 N.E.2d 796; Peterson v. City of New York, 267 N.Y. 204, 196 N.E. 27; Maher v. Madison Sq. Garden Corp., 242 N.Y. 506, 152 N.E. 403; see, also, Curcio v. City of New York, 275 N.Y. 20, 9 N.E.2d 760.) Similarly, on the record before us and the undisputed facts of this case, the school district fulfilled its duty of reasonable care to plaintiff as a matter of law and, therefore, no question of negligence remained for the jury's consideration.

Finally, in view of our holding, we need not reach and, therefore, do not consider the correctness of the trial court's charge to the jury with respect to the applicability of the doctrine of assumption of risk under this State's comparative negligence statute. (See CPLR 1411.)

Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

COOKE, Chief Judge (dissenting).

The majority today engages in an unfortunate exercise in judicial rule making in an area that should be left to the jury. This attempt to precisely prescribe what steps the proprietor of a baseball field must take to fulfill its duty of reasonable care is unwarranted and unwise. Furthermore, the provision of CPLR 1411, providing that contributory negligence or assumption of the risk "shall not bar recovery", should not be disregarded. I therefore dissent and vote to affirm.

As the majority recognizes, the proprietor of a baseball field owes the same duty to spectators that any landowner owes to a person who comes onto the owner's property--"reasonable care under the circumstances" (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; see, also, Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794). This duty requires that the landowner "must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868, supra, quoting Smith v. Arbaugh's Rest., D.C.Cir., 469 F.2d 97, 100).

The majority errs, however, in deciding as a matter of law exactly what steps by a baseball field proprietor will constitute reasonable care under the circumstances. Such a determination, by its very dependence upon the "circumstances", hinges upon the facts of the individual situation and should be left for the jury. Indeed, those exceptions to this rule that have been made by courts occur only in those narrow classes of cases where an identical set of facts is likely to recur with regularity, and "holdings today are rare" (2 Harper and James, Torts, p. 977).

This court has made clear that "safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury" (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520, n.8, 429 N.Y.S.2d 606, 407 N.E.2d 451; see, also, Scurti v. City of New York, 40 N.Y.2d 433, 445, 387 N.Y.S.2d 55, 354 N.E.2d 794, supra). Indeed, well before Basso extended the landowner's duty of reasonable care to all categories of persons who come onto the property, it was well established that "the municipality which extends to its citizens an invitation to enter and use recreational areas owes to those accepting that invitation [441 N.Y.S.2d 649] a duty of reasonable and ordinary care against foreseeable dangers. What degree of care is reasonable necessarily depends upon the attendant circumstances and is a jury question" (Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441; see, also, Sadowski v. Long Is. R. R. Co., 292 N.Y. 448, 455-456, 55 N.E.2d 497). This is not to say that every case of alleged negligence by the proprietor of a baseball field must go to the jury. But it is just as unreasonable to declare with such absolutism that, outside narrow and artificial limits, no such case can go to the jury.

The majority has in effect undertaken the task of prescribing the size, shape and location of backstops and other protective devices that will satisfy a baseball field owner's duty of reasonable care under the circumstances. This attempt to impose a straightjacket upon the relationship between a baseball field proprietor and spectators, regardless of the particular circumstances, is arbitrary and unrealistic. It is reminiscent of the Supreme Court's attempt, in the early years of the automobile, to impose upon the operator the duty of leaving the vehicle and examining each railroad grade crossing on foot, if necessary for a better view of the tracks (Baltimore & Ohio R. R. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167 This standard enjoyed little favor among State courts, engendered confusion among lower Federal courts attempting to apply it and was quickly repudiated by the Supreme Court (Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149).

In Pokora, Justice Cardozo noted that the problems springing from the grade-crossing rule emphasized "the need for caution in framing standards of behavior that amount to rules of law" (id., at p. 105, 54 S.Ct. at p. 583). Indeed, railroad crossing cases provide a good example of this court's reluctance to impose blanket rules of conduct divorced from actual events. More than a century ago, this court stated that "is a general rule that care commensurate with the danger must be exercised, and it is also a general rule that it is the province of the jury, and not of the court, to determine whether such care has been exercised" (Dolan v. Delaware & Hudson Canal Co., 71 N.Y. 285, 288; see, also, Beisiegel v. New York Cent. R. R. Co., 34 N.Y. 622, 625-626). The court has expressed this reluctance to take negligence questions from the jury in a variety of other contexts, as well (see, e. g., Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666; Loughran v. City of New York, 298 N.Y. 320, 322, 83 N.E.2d 136; Foltis, Inc. v. City of New York, 287 N.Y. 108, 122, 38 N.E.2d 455; Salomone v. Yellow Taxi Cab Corp., 242 N.Y. 251, 259, 151 N.E. 442; Sheridan v. Brooklyn & Newtown R. R. Co., 36 N.Y. 39, 43).

The wisdom of eschewing such blanket rules where negligence is concerned is obvious. In the present context, the majority has held as a matter of law that the proprietor of the baseball field fulfilled his duty of reasonable care by erecting a backstop that was 24 feet high and 50 feet wide. The court issues this rule with no more expertise available to it than Justice Holmes had in 1927 when he recommended that motorists venture on foot onto railroad grade crossings for a better view. It has selected one of a variety of forms of protection currently in use at professional ballparks and school playgrounds--what in reality is nothing more than a straight, high fence behind home plate--and has designated it as sufficient protection as a matter of law.

Such a ruling robs the jury of its ability to pass on whether the circumstances here might have made this type of backstop inadequate. In the present case, the majority has taken from the jury its ability to consider the following evidence: that the cost of placing "wings" on the backstop extending to first and third base would have been only $209 when the backstop was built; that other baseball diamonds do have such wings; that the type of game being played at the field was not a softball game between young tykes but rather a varsity high school hardball game involving players such as the batter in this incident, who was six-foot two-inches tall, weighed 190 pounds [441 N.Y.S.2d 650] and was advanced enough in ability to later play professional ball; that school authorities were aware that line drives "frequently" went over the low fence that ran along the base lines, and that there were no signs or other warnings of the dangers of standing behind this fence. Because of public familiarity with the "national pastime", no expert testimony would generally be required to make out a showing of failure to exercise due care in such a case (see Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 396, 34 N.E.2d 367). In this case, however, the jury even had before it the testimony of a civil engineer as to the feasibility and minimal cost of ensuring greater safety for spectators. This makes an even stronger argument for sending this case to the jury.

The court's ruling will also foreclose juries in the future from considering the wide range of circumstances of individual cases, as well as new developments in safety devices or procedures. Unless the court plans to periodically take up such cases in the future to adjust its rule, it has frozen a position that is certain to become outdated, if it is not already. It would make as much sense for the court to decree, as a matter of law, what sort of batting helmet or catcher's mask a school district should supply to its baseball team. Baseball may be a sport steeped in tradition, but it is hardly immune from technological change and shifts in public perception of what constitute reasonable safety measures. It has traditionally been the jury that reflects these shifts and changes.

Finally, a few words concerning the doctrines of assumption of the risk and contributory negligence are in order. As the majority notes, in the past these doctrines generally provided the basis for denying recovery when a spectator who willingly stood or sat in an unprotected area was injured by a baseball. When the Legislature enacted comparative negligence (L.1975, ch. 69), it abolished those doctrines as total bars to a plaintiff's recovery. Now (and at the time of this incident), assumption of the risk and contributory negligence are denominated "culpable conduct" and serve only to proportionately diminish a plaintiff's recovery (CPLR 1411; see Memoranda of Judicial Conference, N.Y.Legis.Ann., 1975, pp. 23, 24). Yet the majority, although it speaks in terms of the defendant's duty of reasonable care, has effectively resurrected those doctrines as total bars to recovery. By holding as a matter of law that the defendant's duty of reasonable care extends only to the construction of a backstop of specific proportions, the majority forecloses a jury from considering any other factors that might be present in an individual case. This rule of law denies recovery to injured spectators as effectively as the old doctrines of assumption of the risk and contributory negligence ever did, and uses a fundamentally similar rationale to do so.

Accordingly, the order of the Appellate Division should be affirmed.

GABRIELLI, JONES and WACHTLER, JJ., concur with JASEN, J.

COOKE, C. J., dissents and votes to affirm in a separate opinion in which FUCHSBERG and MEYER, JJ., concur.

Order reversed, etc.

[*] The dissent acknowledges that not "every case of alleged negligence by the proprietor of a baseball field must go to the jury." (At p. 334, at p. 649 of 441 N.Y.S.2d, at p. 536 of 424 N.E.2d. However, no guidance whatsoever is offered for determining which cases should be decided by the court as a matter of law and which should be submitted to the jury.