Tell me about it. One railway museum I'm associated with has a NIMBY who moved there full knowing the museum was there. One of those who says you must stop blowing the horn, etc. He hates the railroad, but his small boy loves it. Which is gonna make life interesting when he's old enough to volunteer, as this museum was started by teenagers, and is accustomed to having them.

Back to this thread, the thing that stands out for me is the perception of the railroad lawyers as overbearing and pompous. Sounds like they >REALLY< need to work on that.

[quote="superheater"]If in fact the court actually considered individuals who can (drive, marry, quit school, enlist in the armed services) and who were a year or less from being able to do just about anything else but legally consume alcohol-to be a an "infant of tenderyears" , that would be poor, no horrible, indefensible reasoning. As I recall "infant" had a specific meaning back then-a child that hadn't attained "the age of reason", generally thought to about SEVEN, not SEVENTEEN.[/quote]


You recall incorrectly.

INFANT

infant, n. 1. A newborn baby. 2. MINOR.
***
"[I]nfant -- the one technical word that we have as a contrast for the person of full age -- stands equally well for the new-born babe and the youth who is in his twenty-first year." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward I 439 (2d ed. 1899).
"The common-law rule provided that a person was an infant until he reached the age of twenty-one. The rule continues at the present time, though by statute in some jurisdictions the age may be lower." John Edward Murray Jr., Murray on Contracts § 12, at 18 (2d ed. 1974).

Black's Law Dictionary (8th ed. 2004)
© 2004 West, a Thomson business

- G.J.C.

I'll concede my error on the meaning of the word "infant".

The decision contained the following stipulations:

8) Both Birdwell and Klein knew that they had climbed onto property that did not belong to them and that neither was invited to do so.

10) Birdwell and Klein both knew that the catenary wire or wires like the ones noticed by Birdwell were dangerous. Birdwell and Klein both knew that electricity couldkill. Birdwell knew that wires like the ones above FLRX5502 carried electricity and he would never voluntarily touch such wires if he knew they were live. Neither plaintiff, however, realized the wires were energized until after the accident.

But then "hizzoner" draws the following conclusion:

Viewing all facts in favor of the plaintiff, I find the freight car qualifies as an artificial and dangerous condition. sic (On a railroad????)

Counselor, with all due respect, the more I read this decision, the more I am (again) reminded that the reasoning of a federal judge is no better than that of a Philadelphia jury and why Dickens made his famous characterization of the law in Oliver Twist. I'm not sure the founders ever intended a small group of insular pharisees to be prescribing ever more complex and exhausting rules that always seem to benefit that small group.

Stipulation 8 reflects the question of law as to whether or not the plaintiffs were "trespassers." Under authority recognized by the Pennsylvania Supreme Court (hence, the controlling law), no duty is owed to a trespasser except if the trespasser is a minor and certain other conditions are present. It should be fairly easy to see that in order to avoid wasting time and resources, the parties stipulated to the uncontested facts on this particular issue in order to narrow the question for the court of whether or not the legal definition of "trespasser" was applicable to those facts.

As to Stipulation 10, I think you make the case for the Plaintiffs when you recognize as significant the facts that "Birdwell knew that wires like the one above FLRX5502 carried electricity and he would never voluntarily TOUCH such wires IF HE KNEW THEY WERE LIVE" (emphasis added) and "Neither plaintiff, however, realized the wires were energized until after the accident." What you are really conceeding is that the facts showed that the totality of Birdwell's life experience up to the time of the accident did not encompass a recognition that one need not actually touch high-voltage electric lines to get "zorched."

As to the Plaintiffs' lack of knowledge that the wires were energized at the time, it seems curious at first that the Railroad's lawyers would stipulate to that. But on the other hand, absent education on the subject - formal or otherwise - how do YOU know that such wires are typically energized, and how would YOU know that they were or were not in this particular instance? As an adult, of course, your subjective knowledge on this subject makes no difference.

As to your difficulty with "artificial and dangerous condition," come on. Are you suggesting that the boxcar grew out of the ground?

The law may well be an a**. But, sir, it is still the law.

-G.J.C.

how do YOU know that such wires are typically energized, and how would YOU know that they were or were not in this particular instance?
As an adult, of course, your subjective knowledge on this subject makes no difference.

Well then, I will draw on my experience with a specific child. I have a niece, age FOUR - knows not to put anything near the household 110. She knows nothing of morbid/mortal danger, voltage, activation. She knows that she COULD get "hurt really bad". I don't think its unreasonable to assume a 17 year old would (should) be considerably more advanced.

You wish to impose the additional burden ON THE DEFENDENTS that the tresspassers-who were aware of a potential danger, had a right to ignore a known potential danger and act in disregard of it, absent some specific notice of an actual, clear and present danger.

I also think its a bit ridiculous to assume that these two would have done anything different even if there was a flashing neon sign that said "ENERGIZED". The problem with being seventeen, is you like to break rules and flout authority. I could actually see some lawyer proposing some notice of danger to be an attractive nuisance.

As to your difficulty with "artificial and dangerous condition," come on. Are you suggesting that the boxcar grew out of the ground?

Actually you "come on". A boxcar is NOT an artificial condition on a railroad, its a common thing, a necessary contrivance for operation, surely you've noticed a few thousand at crossings, yards and sidings? As for its dangerousness, I can't think of anything thats not dangerous if misused.

As for your dismissal about the law being the law, as if its a fixed and immutable thing, we all understand its inescapable grasp. The question isn't the process of the decision, but its rationality. I think most us know that legal and just aren't the same thing.

The problem here is that the law is firmly in the grasp of an insular, medievel guild which is oppressing the rest of us and suppressing every endeavor. It rejects every convention, every experience, save its own. Your fine with the status quo, no doubt. The rest of us don't want to run every switch move through legal counsel.

So why mount such a vigorous (actually persistent would be a better adjective, vigorous implies effective) defense of the decision here? This board operates according to the court of common opinion, not some authority recognized by the PA Supreme Court and I assure you in that venue, you aren't prevailing. (Unless of course, I missed all those posts sayig "wow, now I get it, now I understand the judge is wise beyond my comprehension")

We need to incorporate the idea that “trespass at your own risk” (known and unknown, anticipated and unanticipated). Then again, that wouldn’t serve the keepers of keys, would it? The legal profession has arrogated to itself a stranglehold over every aspect of life.

[quote]Well then, I will draw on my experience with a specific child. I have a niece, age FOUR - knows not to put anything near the household 110. She knows nothing of morbid/mortal danger, voltage, activation. She knows that she COULD get "hurt really bad". [/quote]

If you are suggestion that all children should be taught that they could get hurt really bad around railroads, I could not agree more.

[quote]You wish to impose the additional burden ON THE DEFENDENTS that the tresspassers-who were aware of a potential danger, had a right to ignore a known potential danger and act in disregard of it, absent some specific notice of an actual, clear and present danger. [/quote]

You were the one who pointed out that the parties had stipulated that the plaintiffs were NOT aware of the danger. Now you also say that they had a "right to ignore a known potential danger" and somehow waived it by their conduct? To begin with, minors lack capacity to waive any rights.

[quote]I also think its a bit ridiculous to assume that these two would have done anything different even if there was a flashing neon sign that said "ENERGIZED". [/quote]

That's probably true. But in that scenario the railroad likely would have prevailed, unless there was evidence that the plaintiffs could not read.

[quote]A boxcar is NOT an artificial condition on a railroad, its a common thing, a necessary contrivance for operation, surely you've noticed a few thousand at crossings, yards and sidings?[/quote]

You're perfectly free to disbelieve that the law treats man-made dangers differently from natural ones in connection with determining liability. But should you ever find yourself before a Federal judge under similar circumstances, you just might want to have a few more arguments in reserve.

[quote]I think most us know that legal and just aren't the same thing. [/quote]

Agreed. In the case of children climbing on boxcars in the electrified zone, a just result would have been complete electrocution.

[quote]The problem here is that the law is firmly in the grasp of an insular, medievel guild which is oppressing the rest of us and suppressing every endeavor. It rejects every convention, every experience, save its own. Your fine with the status quo, no doubt. [/quote]

If I were "fine with the status quo," I wouldn't have gone to law school. I certainly gather that you would do things differently if you were a member of the bar, or if you were a judge. That's why most jurisdictions would require you to obtain a legal education before stepping up to the plate.

[quote]So why mount such a vigorous (actually persistent would be a better adjective, vigorous implies effective) defense of the decision here? [/quote]

Your parenthetical comment is unnecessarily snide. I'm telling you that the earth is round, and you continue to insist it's flat. If you stated that triangular boiler tubes work best and someone like Linn Moedinger told you repeatedly that the boiler codes don't recognize your viewpoint, you surely wouldn't be arguing that the persistance of his position implied that it was ineffective.

[quote]This board operates according to the court of common opinion, not some authority recognized by the PA Supreme Court and I assure you in that venue, you aren't prevailing. [/quote]

That's really quite a statement....next time I propose we conduct a poll on RyPN to determine what the law is, and set policy at our museums and railroads accordingly.

[quote]We need to incorporate the idea that “trespass at your own risk” (known and unknown, anticipated and unanticipated). Then again, that wouldn’t serve the keepers of keys, would it?[/quote]

Well, that's pretty much what the law is, except in the case of minors under some conditions, and that's what I've been saying all along. I suspect that your real outrage is not really over the question of liability, but the amount of the damage award. That's a different matter. But how would you put a dollar value on being maimed for life physically and cognatively, unable to pursue a career, unable to have children, and whatever else? (I'm speaking hypothetically now, and not all of these may have been factors in this case.) I'd sure like to have a couple of million dollars, but not under these circumstances, and I expect the same is true for you.

[quote]The legal profession has arrogated to itself a stranglehold over every aspect of life.[/quote]

Personally, I long for a return to the good old days when it was the railroads that did so.

- G.J.C.

You were the one who pointed out that the parties had stipulated that the plaintiffs were NOT aware of the danger. Now you also say that they had a "right to ignore a known potential danger" and somehow waived it by their conduct? To begin with, minors lack capacity to waive any rights.

HUH?

10) Birdwell and Klein both knew that the catenary wire or wires like the ones noticed by Birdwell were dangerous. Birdwell and Klein both knew that electricity couldkill. Birdwell knew that wires like the ones above FLRX5502 carried electricity and he would never voluntarily touch such wires if he knew they were live. Neither plaintiff, however, realized the wires were energized until after the accident.

You're perfectly free to disbelieve that the law treats man-made dangers differently from natural ones in connection with determining liability. But should you ever find yourself before a Federal judge under similar circumstances, you just might want to have a few more arguments in reserve.

I have no such belief, I took “artificial” to mean contrived, not common to the situation rather than a product of human endeavor.

If I were "fine with the status quo," I wouldn't have gone to law school. I certainly gather that you would do things differently if you were a member of the bar, or if you were a judge. That's why most jurisdictions would require you to obtain a legal education before stepping up to the plate.

Unfortunately, I don’t see any evidence of your displeasure with status quo. Instead, you seem to think that you’ll convince me (and the rest of the board) that the decision is right. I’m afraid it’ll take more than you’ve provided.

As it happens, I may have the chance to meet with a federal judge at some point, he’s a friend of family friends and a member of the court observed to be infallible because its final, not final because its infallible. I presume of course, he'd be unable to comment on cases being actively litigated at the federal level.

Your parenthetical comment is unnecessarily snide. I'm telling you that the earth is round, and you continue to insist it's flat. If you stated that triangular boiler tubes work best and someone like Linn Moedinger told you repeatedly that the boiler codes don't recognize your viewpoint, you surely wouldn't be arguing that the persistance of his position implied that it was ineffective.

Actually, your analogy is wrong. You aren’t arguing something objective. Principles of mechanics and physics are discernible and verifiable. Its presumptuous of you to presume a standing equal to Mr. Moedinger. There’s no morality, no propriety and no equity in boiler construction. If you are arguing to point to be effective (at convincing the rest of us that this decision is JUST), it ain’t happening. But convince yourself if you must. I know its legal, but its wrong.

If legal arguments always led practitioners to the same conclusion, there’d be no need for stare decisis. Insurance isn’t commerce: Virginia v. Paul (1869), insurance is commerce: Southeast Underwriters (1944)




That's really quite a statement....next time I propose we conduct a poll on RyPN to determine what the law is, and set policy at our museums and railroads accordingly.

Speaking of snide

Well, that's pretty much what the law is, except in the case of minors under some conditions, and that's what I've been saying all along. I suspect that your real outrage is not really over the question of liability, but the amount of the damage award. That's a different matter. But how would you put a dollar value on being maimed for life physically and cognatively, unable to pursue a career, unable to have children, and whatever else? (I'm speaking hypothetically now, and not all of these may have been factors in this case.) I'd sure like to have a couple of million dollars, but not under these circumstances, and I expect the same is true for you.

Yes, this is tragic and sorrowful-but not tragic and sorrowful enough to use legal wordplay to impute culpability and financial responsibility to a party that didn’t cause the problem. The situation is one of the young men’s error. I’ll skip the standard inhumane reference to the “Darwin award”, but this would be fodder for the “stella” award. Its not the magnitude of the award sought. In any case, as you implied, there’s no price adequate for this. If it weren't for the damn tort bar, the railroad might've used foundational contributions as a way to fund a relief fund out of citizenship, but no, back 'em into the corner, eh? Lets not forget, Its important Dewey Cheatum and Howe get their chance @ 8 mil....

"Neither plaintiff, however, realized the wires were energized until after the accident."

It was stipulated by the parties that the minor plaintiffs were not aware of the danger posed by these wires at the time in question, if that makes it more clear for you.

"I took 'artificial' to mean contrived, not common to the situation rather than a product of human endeavor."

The term has a distinct legal meaning and significance quite apart from how you took it.

"Unfortunately, I don’t see any evidence of your displeasure with status quo. Instead, you seem to think that you’ll convince me (and the rest of the board) that the decision is right. I’m afraid it’ll take more than you’ve provided."

Well, I don't see the rest of the board arguing with me, but I concur that it will take more than I've provided to convince you that the decision is right. However, I'm not arguing that it's right, I'm just agreeing that it's the law. If anyone out there wants to demonstate the strength of their conviction that I'm wrong by cancelling the insurance at their museum or tourist railroad, or parking boxcars under the trolley wire and leaving it on all night, they can be my guest. Ultimately, I think most board participants understand that they are better served by practical analysis and responsible applications in this or any subject within our collective purview. For example, we have sometimes discussed methods of building successful relationships with our FRA inspectors, as opposed to calling for the agency's abolition.

"As it happens, I may have the chance to meet with a federal judge at some point, he’s a friend of family friends and a member of the court observed to be infallible because its final, not final because its infallible. I presume of course, he'd be unable to comment on cases being actively litigated at the federal level."

Good for you, although that obviously wasn't what I meant about arguing before a federal judge. But there's nothing wrong with asking him about this particular case or, if he's unwilling to talk specifically about it, asking him about possessor liability toward minor trespassers in general. Please report back to us. However, I don't understand your reference to this friend of your friends being "a member of the court observed to be infallible," his lifetime appointment notwithstanding.

"You aren’t arguing something objective."

Correct.

"Principles of mechanics and physics are discernible and verifiable. Its presumptuous of you to presume a standing equal to Mr. Moedinger."

I certainly did not so presume, although I expect he'd be able to stick up for himself if he felt slighted in the least. However, because I cannot imagine that you know my own identity, I am more than a little amused at your casual use of the word 'presumptuous.'

"There’s no morality, no propriety and no equity in boiler construction."

Well, as to 'propriety' and even 'morality' you're most certainly wrong. For example, take the infamous Gettysburg RR 1278 'incident.' I expect you're aware of the shoddy maintenance and falsified record-keeping that resulted in that near-catastrophe and if not, others on this board can bring you up to speed. I can also quite state categorically that there is no equity in law, and that a court with equitable jurisdiction shall not resort to equity where a legal remedy exists, even if that legal remedy does not suit your own taste, as is apparently the case here.

"If you are arguing to point to be effective (at convincing the rest of us that this decision is JUST), it ain’t happening."

Hold on. I completely agreed with you earlier when you posited that something required by law is not necessarily just, and I certainly never said this particular decision was just. As to my convincing anyone else on this point, you seem to be the only one arguing.

"If legal arguments always led practitioners to the same conclusion, there’d be no need for stare decisis."

How true. Without that revered principle, our courts could turn over a century or more of jurisprudence at will or at your own say-so, and would certainly not be bound, as in this case, by the settled law.

"Yes, this is tragic and sorrowful-but not tragic and sorrowful enough to use legal wordplay to impute culpability and financial responsibility to a party that didn’t cause the problem. The situation is one of the young men’s error."

Your use of the term "young men" is the only wordplay I see, since the precise liability issue here stems from their legal status as minors. You may well believe that the railroad did not cause the problem, but the law says otherwise. In a nutshell, this is the way our system allocates the cost of such tragedies. You're free to imagine any number of alternative ways, up to and including eliminating such costs altogether by simply putting these stupid kids out of their misery. Perhaps you can suggest such cost-allocation reforms to your friend the federal judge.

"If it weren't for the damn tort bar, the railroad might've used foundational contributions as a way to fund a relief fund out of citizenship, but no, back 'em into the corner, eh?"

Are you saying that there should be some sort of no-fault system, like workers' compensation, that would be funded by "foundations" (or funded "out of citizenship," which I take to mean taxes)? Are you really suggesting that a better system than making the railroad responsible for minor trespassers injured on its property (a potential which railroads have been aware of for more than a hundred years) would be a scheme under which "foundations" or the taxpayers fund the losses? Or are you just saying that the railroads should contribute to a pool which would pay -like, um, insurance?

"Lets not forget, Its important Dewey Cheatum and Howe get their chance @ 8 mil...."

Wait 'til you get my bill....

- G.J.C.

Gentlemen,

This topic has been thoroughly discussed, and all relevant points have now been debated. The thread has been heated and I see nothing that can be accomplished by a continued rehash of this topic. Therefore it is now locked.