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 itself. Moreover, the utility of one man trying to patrol both sides of a 90 car train would have been minimal.
I am therefore forced to conclude that there is no evidence from which a jury could infer that the railroads had reason to know of the plaintiff's peril; therefore they cannot be held liable for wanton misconduct.
The facts in this case readily distinguish it from cases where courts have held railroads to be on notice of the presence of trespassers. Plaintiff cites for support Toner v. Pennsylvania Railroad Co., 263 Pa. 438, 106 A. 797 (1919), where the plaintiff was injured as he rescued a child who was playing in the path of a moving train. The tracks were located in the middle of a road in a densely populated residential area. Because the railroad knew that children regularly played on the tracks, the railroad was held to have anticipated that they would continue to do so. Id. at 441. In the present case, there is no evidence that the cars were used as a playground by students whenever freight trains stopped at Villanova station.
Indeed, there is evidence that freight trains rarely, if ever, stopped at Villanova (Campbell deposition at 96).
Similarly, in Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136, 10 A. 2d 576 (1940), plaintiff was injured when he slipped from a subway platform into the path of an oncoming subway car. After his body triggered an automatic braking system, the conductor was told that a man had fallen beneath the platform and he made a cursory examination. Finding nothing beneath the train, the conductor proceeded forward, thus causing the train to strike the plaintiff a second time. The court found under those facts that the defendant was put on notice as to the presence of the trespasser at the time the train went into its emergency stop. In contrast, it was not until after the accident in the present case that the defendants learned of the plaintiff's presence.
Even if, arguendo, the defendants here knew or should have known of the presence of the plaintiff, his theories of liability are unavailing. Plaintiff argues initially that the railroad is liable for its failure to erect a fence along its tracks to prevent access to them. This argument is flawed for two reasons. First, Pennsylvania law clearly imposes no duty upon a railroad to fence its right of way to prevent trespassing. Dugan v. Pennsylvania Railroad Co., 387 Pa. 25, 127 A. 2d 343 (1956); Noonan v. Pennsylvania Railroad Co., 128 Pa. Super. 497, 194 A. 212 (1937). Second, the lack of any fencing was clearly not a proximate cause of plaintiff's injuries. This contention might be more tenable if plaintiff had been struck by a moving train as he was crossing unfenced tracks.
Similarly, plaintiff's arguments that the defendants are liable for failing to warn of the existence of the overhead wires and for placing the electrical wires too low for safe clearance also fail.
First, the plaintiff was generally aware that some of the trains using the tracks were powered by electricity (Heller affidavit at 2) and that the overhead wires contained electricity (Heller deposition at 12). Second, in order to impose liability upon the defendants for these acts, it must have been reasonably foreseeable to the defendant that the plaintiff's injuries would result from the defendant's actions. See Quinones v. United States, 492 F.2d 1269, 1273 (3d Cir. 1974). In the present case, it was not reasonably foreseeable to the defendants that the plaintiff would trespass upon its land, climb upon its boxcar, and be injured by electrical wires 22 feet above the tracks. Therefore, in light of the fact that railroads are entitled to assume that their property is free from trespassers, Davies v. Delaware, Lackawanna, & Western Railroads Co., 370 Pa. 180, 87 A. 2d 183 (1952), it cannot be said that the defendant was negligent for failing to warn of the overhead electrical wires and for placing the electrical wires too low for safe clearance.
It is well established that "a negligence claim must fail if based on circumstances for which the law imposes no duty of care on the defendant." Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir. 1979), cert. denied, 446 U.S. 909, 100 S. Ct. 1836, 64 L. Ed. 2d 261 (1980). See Shade v. United States, No. 81-0881 (E.D. Pa. Oct. 29, 1981). The issue here is whether Villanova, either in its capacity as a university or as a landowner of property adjacent to which there exists an allegedly dangerous condition, owed any duty of care to the plaintiff. Because Villanova owed no duty to the plaintiff in either capacity, summary judgment must be granted in favor of this defendant.
I have found no cases, and have been directed to none, in which the landowner of property adjacent to that on which another person is injured has been held to owe any duty of care to that individual, absent any causal connection between the landowner's property and the plaintiff's injuries. To the contrary, the law appears clear that no such duty exists. In Cousins v. Yaeger, 394 F. Supp. 595 (E.D. Pa. 1975), the minor plaintiff was injured when struck by a train after allegedly crossing over land owned by the defendant which was adjacent to the railroad tracks. In granting the defendant landowner's motion for summary judgment, the court stated:
No case has been brought to our attention wherein there has been imposed upon a possessor of land a duty to erect fencing or other protective devices or warnings to deter trespassing children from entering a third person's property on which there exists a dangerous condition not created or maintained by the landowner and over which he has no control. As a matter of fact, there are cases which hold that possessors of land have no such duty . . . .