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September 30, 1982


The opinion of the court was delivered by: DITTER

 This action comes before the court on the defendants' motions for summary judgment. Plaintiff Thomas Heller, a student at Villanova University, brought this action against defendants Conrail, National Railroad Passenger Corporation ("Amtrak"), and Villanova University alleging that he was injured due to defendants' negligence when he climbed atop a boxcar which was temporarily stopped on tracks which cross the Villanova campus. As he reached the top of the boxcar, plaintiff came in contact with an overhead electrical wire which resulted in serious injuries to him.

 The defendant railroads have moved for summary judgment on the ground that as a matter of law they are not liable for either wilful or wanton negligence, the standards by which their conduct is to be judged in view of Heller's being a trespasser on railroad property. *fn1" Defendant Villanova seeks summary judgment on the ground that in its capacity as a landowner of property adjacent to which there exists an allegedly dangerous condition, it owed no duty of care towards the plaintiff. For the reasons which follow, the defendants' motions for summary judgment will be granted.


 On March 31, 1978, train P-9, a freight train owned by Amtrak and operated by Conrail employees, was travelling west from a freightyard in Camden, New Jersey, to its destination of Enola, Pennsylvania. The train, which consisted of 123 cars powered by two electrical locomotive engines, was travelling on a right of way owned by Amtrak. As the train passed through the Bryn Mawr station, located approximately one mile east of Villanova, two of the cars became uncoupled causing the train to stop. After informing the Bryn Mawr tower operator of the uncoupling, William Campbell, the engineman of train P-9, was instructed by the Bryn Mawr tower operator to move the front portion of the train, now consisting of approximately ninety cars, to the Villanova station. This would allow another train to pass through the Bryn Mawr interlock. In accordance with these instructions, the front portion was moved approximately one mile west to the Villanova station. It remained there for some time awaiting to be recoupled with the rear section. *fn2"

 The tracks on which the train travelled go through the middle of the Villanova campus. The land on which they are located is owned by Amtrak, although Villanova owns the property adjacent to both sides and uses it for dormitories and classroom buildings. The railroad right of way in this area has four separate tracks and train P-9 was located on the third track of the west side of the right of way. Approximately 22 feet above the tracks, supported by steel girders, are power lines which carry 12,000 volts of electricity for electric locomotives which use the tracks. At the time of the accident, there were no fences on either side of the tracks as they cut through the campus. There is, however, an underpass at Villanova station, located approximately one mile from the accident site, which provides a walkway underneath the tracks to allow the students to walk safely from one side of the campus to the other.

 At approximately 3:30 P.M., the plaintiff, Thomas Heller, and a friend, Carol Amadio, left Amadio's dormitory room on the Villanova campus to walk to the train. The purpose of their journey was to satisfy Heller's curiosity "to see a boxcar up close." (Heller deposition at 28). Upon leaving the dormitory, Heller and Amadio walked several hundred yards north, across a large grassy field, up a small hill to the tracks. While Amadio waited on the side of the tracks, Heller approached the train by crossing two sets of tracks. After climbing into two boxcars to look around, he then walked a few feet farther down the track to a third boxcar. This boxcar was approximately 50 feet long and 16 feet high with a metal ladder on the end leading to the top of the boxcar. Curious about what the top of the boxcar looked like, Heller walked to the end of the car and began to climb the ladder. As he reached the top of the boxcar, Heller came in contact with the overhead electrical wire, causing serious and permanent injuries.


 A railroad owes a duty to a trespasser *fn3" to avoid wilful or wanton misconduct. Dugan v. Pennsylvania Railroad Co., 387 Pa. 25,, 127 A.2d 343 (1956), cert. denied 353 U.S. 946, 1 L. Ed. 2d 856, 77 S. Ct. 825 (1957). Wilful and wanton misconduct are distinct standards and must be analyzed separately. Evans v. Philadelphia Transportation Company, 418 Pa. 567, 573, 212 A. 2d 440 (1965). As the Pennsylvania Supreme Court explained in Evans, "wilful misconduct means that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain that it would ensue. This, of course, would necessarily entail actual prior knowledge of the trespasser's peril." Id. at 574. On the other hand, wanton misconduct "means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm will follow. It usually is accompanied by a conscious indifference to the consequences." Id.

 A crucial difference between wilful and wanton misconduct is that wilful misconduct requires actual knowledge of the victim's presence, whereas wanton misconduct contains no such requirement. In the present case, there has been no evidence presented that the railroad employees had any actual knowledge of the presence of Thomas Heller. In fact, William Campbell and Donald Bruce, the engineman and the front brakeman, respectively, remained in the lead engine from the time it arrived at Villanova station until they were notified of the plaintiff's injuries. (Campbell deposition at 94, 95). Heller was injured on the 37th car from the lead engine (Conrad deposition at 52) and since there is a curve in the track just before the Villanova station, it would have been all but impossible for either Campbell or Bruce to have seen Heller prior to the accident. Moreover, William Conrad and Vernon Ward, the conductor and rear brakeman, respectively, remained with the 30 cars of the uncoupled rear portion of the train near Bryn Mawr until after the accident had occurred. (Conrad deposition at 49-51). Since no railroad employees had actual prior knowledge of Heller's presence, wilful misconduct cannot be established. Therefore, I next consider whether the railroad was liable for wanton misconduct.

 In contrast to wilful misconduct, wanton misconduct may exist even if the actor is unaware of the trespasser's actual position of danger. The crucial point in determining wantonness is whether or not the actor had sufficient warning of the possibility of the victim's peril. Actual knowledge constitutes only one manner of appraisal. Evans, supra, at 574. The question in this case is whether there is any evidence to indicate that the railroad employees had reason to know of the imminent danger which the plaintiff faced.

 I begin from the premise that a railroad is entitled to assume and act upon the assumption that its property is free from trespassers. Davies v. Delaware, Lackawanna & Western Railroad Co., 370 Pa. 180, 87 A. 2d 183 (1952); Tedesco v. Reading Co., 147 Pa. Super. 300, 304, 24 A. 2d 105 (1942). The record before me is void of any facts which would support an inference that the railroad employees should have known of the plaintiff's imminent peril. As was previously stated, Campbell and Bruce were the only employees of the defendant railroads who could have had an opportunity to see the plaintiff. However, because of the location of the lead engine relative to the site of the accident, it would have been virtually impossible for them to have seen him. Moreover, since the plaintiff by his own admission was on the tracks for no longer than 20 minutes (Heller deposition at 13-15), the likelihood of Campbell or Bruce spotting the victim prior to his accident is substantially diminished.

 Plaintiff argues that the railroads would have had reason to know of plaintiff's presence if they had patrolled the length of the train during its temporary stop at Villanova station. There are both legal and practical problems with this argument. First, it is well settled in Pennsylvania that a railroad has no duty to patrol its stationary cars. See Scibelli v. Pennsylvania Railroad Co., 379 Pa. 282, 108 A. 2d 348 (1954); Shaw v. Pennsylvania Railroad Co., 374 Pa. 8, 96 A. 2d 923 (1953); Tiers v. Pennsylvania Railroad Co., 292 Pa. 522, 141 A. 487 (1927). Courts have recognized that the imposition of such a duty would result in an unduly burdensome task for the railroad and would frustrate its ability to operate with any degree of effectiveness. See Scibelli, supra, at 289.

 Aside from the legal roadblock, the practical effect of such action in this case is questionable. It is undisputed that Campbell and Bruce, who remained in the front engine of train P-9 during the entire time at Villanova, were the only railroad employees on the front section of the train, consisting of 90 cars. Obviously, if both men had left to guard against possible trespassers, the engine would have been abandoned, creating a sizable risk ...

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