The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
This matter comes before the Court on the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This motion for summary judgment is submitted upon the pleadings, depositions, affidavits, exhibits and answers to interrogatories. For the reasons expressed hereinafter, the defendant's motion for summary judgment is granted.
The minor plaintiff, Louis Cousins, by his parent and natural guardian, Louise Evans, and Louise Evans, in her own right, have initiated this diversity action for injuries sustained by the minor plaintiff who was struck by a train operated by the Pennsylvania Railroad Company (now Penn Central) on August 6, 1970. The defendant, Eugene F. Yaeger, a citizen of New Jersey, is the owner of a parcel of land which abuts the railroad's right-of-way in the vicinity of the place where the minor plaintiff was struck by a train. Sometime prior to the filing of the complaint in this case, minor plaintiff and his mother instituted an action which is pending in the Court of Common Pleas of Philadelphia County against Penn Central and the City of Philadelphia in connection with the same accident. Two other non-diverse parties who also own land abutting the railroad right-of-way in the vicinity of the accident have been brought into this action together with the Penn Central and the City of Philadelphia as third-party defendants. The gravamen of the plaintiffs' cause of action against the defendant is stated in paragraphs 3 and 4 of plaintiffs' complaint as follows:
3. On or about August 6, 1970, at approximately 8:30 a. m., minor plaintiff, while playing in a field near 47th and Upland Streets, Philadelphia, Pa., owned by defendant was struck by a Pennsylvania Railroad train, resulting in serious personal injuries and other damages hereinafter set forth.
4. At said time and place, defendant, Eugene F. Yaeger, as owner of the property involved negligently caused the said minor plaintiff to be struck by the aforesaid train and said negligence consisted of the following:
(a) Failure to properly fence, guard and protect the public from access to the dangerous condition that existed about defendant's property;
(b) Failure to alert minor plaintiff of the danger of passing trains or to otherwise warn him of their existence;
(c) Allowing an attractive nuisance at the place of the accident with full knowledge that children play in the area;
(d) Allowing and failing to protect against access to the property at the place of the accident with full knowledge that the area had been used for many years by pedestrians as a cross-walk to cross the railroad tracks;
(e) Failure to erect and maintain proper and adequate signs, both to the general public and to the operators of the railroad's trains, of the dangerous condition;
(f) Knowledge and tolerance of constant intrusion upon land and access across railroad tracks and failure to safeguard against same;
(g) Knowledge of and reason to believe that his property was being used as a playground by children and failure to exercise ordinary care for their safety;
(i) Being otherwise negligent under the circumstances.
The defendant contends that he is entitled to summary judgment on the following grounds: First, that the plaintiffs have not and cannot produce evidence of negligence on the part of the defendant because there is no evidence, either direct or circumstantial, as to which parcel of land the minor plaintiff crossed to reach the spot on the tracks where he was struck by the train; second, assuming arguendo, that the minor plaintiff crossed defendant's property to arrive at the scene of the accident, there is no duty upon the defendant as a landowner to erect a fence or other device to deter, or to warn, trespassing children from entering the right-of-way of the railroad. In support of his position, the defendant has submitted exhibits, the contents of which are uncontradicted, showing the size and location of the various parcels of land abutting the railroad right-of-way in the vicinity of the accident including the defendant's land and the land owned by the third-party defendants. (See Exhibits I, J, K.) In addition, defendant has submitted various depositions including those of the minor plaintiff and his mother.
The plaintiffs contend that there is a genuine issue as to questions of material fact and that the defendant is not entitled to judgment as a matter of law without plaintiffs having the opportunity to present evidence. Although given the opportunity to do so, the plaintiffs have not submitted affidavits or other evidence to support their allegations that the minor plaintiff crossed or made any use of the defendant's land in reaching the railroad tracks.
The primary purpose of a motion for summary judgment under Rule 56 is to avoid a useless trial. 6 Moore's Federal Practice para. 56.02. Functionally, the theory underlying a motion for summary judgment is essentially the same as a motion for directed verdict. The crux of both motions is that there is no genuine issue of material fact to be determined by the trier of the facts, and that on the law applicable to the evidence presented, the movant is entitled to judgment.
It is elementary that the plaintiff in an action such as this has the burden of proof to establish that the defendant was negligent and that such negligence was the proximate cause of the accident. It is also elementary that the party moving for summary judgment has the burden of demonstrating that no genuine issue as to any material fact exists, and that he is entitled to judgment as a matter of law. As stated in Moore's Federal Practice para. 56.15 at 2335-36:
The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law.
The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. (Footnotes omitted.)
Before summary judgment will be granted it must be clear what the truth is and any doubt as to the existence of a material fact will be resolved against the movant. Because the burden is on the movant, the evidence presented to the court is construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences. However, if the moving party by affidavit or otherwise presents evidence which would require a directed verdict in his favor at trial, then he is entitled to summary judgment unless the opposing party either shows by affidavit or otherwise that there is a triable issue of material fact. 6 Moore's Federal Practice para. 56.11. Where a defendant presents evidence on which he would be entitled to a directed verdict, the burden is on the plaintiff, in opposing defendant's motion for summary judgment, to point out any evidence which might change the result. Rule 56(e) of the Federal Rules of Civil Procedure makes it clear that "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."
This Court is mindful of the hesitancy by trial courts to render summary judgment in negligence actions; however, we are equally cognizant of the propriety of summary judgment in a negligence action where there is no genuine issue as to any material fact. See 6 Moore's Federal Practice para. 56.15 [1.-0], 56.17, and cases cited therein. Summary judgment has been granted in numerous cases where the plaintiff has failed to show evidence of negligence on the part of the defendant. Algar v. Yellow Cab Co. of D.C., Inc., 103 U.S.App. D.C. 129, 255 F.2d 538 (1958) Wilkinson v. Powell, 149 F.2d 335 (5th Cir. 1945); Foecker v. Allis-Chalmers, 366 F. Supp. 1352 (E.D.Pa.1973); Miller v. Perry, 308 F. Supp. 863 (D.S.C.1970); McBride v. Proctor & Gamble Mfg. Co., 300 F. Supp. 1150 (E.D.Tenn.1969); Clark v. Employers Mutuals of Wausau, 297 F. Supp. 286 (E.D.Pa.1969); Amick v. Gooding Amusement Co., 248 F. Supp. 782 (D.S.C.1966); Richardson v. Kubota, 234 F. Supp. 856 (N.D.W.Va.1964). This Court has considered the pleadings, the affidavits, the exhibits and the depositions which are before it in a light most favorable to the plaintiffs and concludes, for the reasons hereinafter set forth, that there is no genuine issue of material fact as to defendant's negligence to be resolved by the trier of fact, and upon the facts presented the defendant is entitled to a judgment as a matter of law.
With the appropriate legal standards in mind, the facts relevant to the determination of the motion now before the Court will be summarized: On August 6, 1970, the minor plaintiff, then 8 1/2 years old was struck by a Pennsylvania commuter train while on the right-of-way of the railroad. At the time of the accident, the minor plaintiff and his 12 year old cousin Darryl, were en route to an area adjacent to the Woodland Avenue bridge for the purpose of catching frogs. As shown on Exhibit "K", a copy of which is attached hereto, the Woodland Avenue bridge is an overpass located between 47th and 48th Streets on Woodland Avenue, under which passes the Penn Central tracks. The minor plaintiff was struck by the train a few feet from the bridge, which bridge is about 350 feet from the nearest edge of the defendant's property. The minor plaintiff at the time of the accident was living on the 4700 block of Upland Street, which is located between 47th and 48th Streets and Kingsessing and Woodland Avenues. The railroad right-of-way passes under the Woodland Avenue bridge and is separated from Upland Street by several intervening parcels of land. The defendant's property is located at the dead end of the 4700 block of Upland Street and a portion of the defendant's land adjoins the railroad right-of-way. This property, which has been owned by the defendant from a time prior to the accident, was formerly the Swainsboro Lumber Yard. Approximately one year prior to the date of the accident a fire occurred at the lumber yard and destroyed all the structures on the property. At the time of the accident, the former lumber yard was an open field without structures or fences. Prior to the fire the property was enclosed by wooden and cyclone fences with entrance gates at the dead end of Upland Street. Louise Evans testified that prior to the fire there was a concrete alleyway about 4 feet wide, located at the end of Upland Street, which alley passed between the last house on the south side of Upland Street and the fence of the Swainsboro Lumber Yard. At the south end of this concrete alleyway was a narrow dirt path which cut through an open field and lead over some old unused tracks to the main tracks of the railroad. According to Exhibit "K" and the deposition of Mrs. Evans, this path did not cross the defendant's property. Mrs. Evans testified that this path was frequently used to go across the tracks. She further testified that after the fire all the fencing around the Swainsboro Lumber Yard was destroyed, together with five houses on the south side of Upland Street nearest to and adjoining the concrete alleyway. According to Mrs. Evans, after the fire there remained an open field especially since the five houses on the south side of Upland Street and the defendant's lumberyard were destroyed leaving only rubble and open areas. There was no testimony by Mrs. Evans, or anyone else, that either prior to or after the fire there was a path over the defendant's property leading to the railroad right-of-way. Exhibit "K" shows that the point at which the minor plaintiff was struck by the train was a few feet from the Woodland Avenue bridge and 343 feet from the closest point of defendant's property. Exhibit "K", as well as Mrs. Evans' testimony and defendant's affidavit, demonstrates that there were several open fields between the minor plaintiff's home and the railroad tracks, any one of which could be used as a path to the railroad tracks. The plaintiffs have alleged that the minor plaintiff was playing on the defendant's property and crossed defendant's property to gain access to the railroad tracks. Plaintiffs seek to hold the defendant liable for his failure to adequately assure that the minor plaintiff would not have access from defendant's property to the railroad tracks. The only evidence as to which route the minor plaintiff took to gain access to the railroad tracks is the depositions of the minor plaintiff and his mother. Those portions of the minor plaintiff's deposition which are relevant as to the route taken by him are as follows:
By Counsel for Penn Central:
Q. Now, Louis, going back to August the 6th of 1970 -- that is a little over a year ago -- do you recall having had an accident with the train on that day?
A. You mean when it hit me?
Q. Yes. Do you remember that?
Q. Do you remember anything about that day?
A. No, I don't. I know when I was sitting in the hospital the next two days unconscious.
Q. Now going back prior to the accident before August the 6th, when is the last time you remember anything?
Q. Yes. Before you got hit?
A. I remember a lot of things. You mean like when the lot burned down to the ground? It was only that crossing and no trains didn't go by. So then I thought that since no trains didn't go by, that the lot burned down, that they go back there and play.
Q. Now, you recall waking up in the hospital?
Q. When before you wakened in the hospital, when before that do you remember about anything that you did?
A. I don't remember anything.
Q. Do you know whether you were with anyone when this accident happened?
Q. How did you go from your grandmother's house on Upland Street to the railroad? Did you walk?
Q. When you say you walked straight up, did you walk on the street or did you walk in the field, or how did you walk?
A. I walk on the pavement.
Q. Do you know what street you were on? Do you know what the name of the street was that you were on?
A. They call it Upland Street, but
Q. Why did you go to the railroad?
A. See, I wanted some frogs. I wanted frogs.
Q. Had you been there before?
A. Yes. When -- because no trains didn't -- we thought that since the lot burned down, ...