Morgan v. Southern Pacific Transportation Co.

California Court of Appeal · 1974 · Torts

TortsNegligenceWilful MisconductContributory NegligenceRailroad Liabilitywilful misconductwanton misconductreckless disregard

Facts

At night, defendant's freight train was backing eastward with a caboose leading at about 8-12 m.p.h. through a median divider along Magnolia Boulevard, an area the crew knew was commonly used by pedestrians. The engine crew could not see in front of the caboose and depended on the rear brakeman, who stood where he could not be seen by them and did not display the required white light or sound the air whistle. Plaintiff, walking east in the median with his back to the train, had seen the train earlier but heard no bells, whistles, or shouts and was struck after the brakeman saw him about 60 feet ahead. The train traveled 135 feet after impact before stopping, and plaintiff lost both legs.

Issue

Was there substantial evidence to submit wilful misconduct to the jury in this railroad-pedestrian accident? If so, did the railroad's contributory-negligence arguments matter in light of the general verdict?

Rule

Wilful misconduct is an aggravated form of negligence consisting of an intentional act of an unreasonable character in disregard of a risk known to the actor or so obvious that awareness is imputed, where the risk is so great that harm is highly probable. Three essential elements are required: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable rather than merely possible result, and (3) conscious failure to act to avoid the peril. Contributory negligence is no defense to wilful misconduct.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At dusk in Fresno, a freight crew regularly backs a string of railcars through a wide median beside a busy boulevard that neighborhood residents often use as a footpath because there are no sidewalks. The crew knows people commonly walk there, but the flagman rides the leading car without displaying the required white lantern and gives no audible warning; when he spots Dana Kim walking ahead with earbuds in, he says nothing and the train strikes her.

If Dana sues the railroad and the railroad argues the evidence shows, at most, ordinary negligence, which is the strongest response?

Explanation. Wilful misconduct is an aggravated form of negligence requiring intentional conduct of an unreasonable character in conscious disregard of a known or obvious risk so great that harm is highly probable. The majority stated three elements: knowledge of the peril, knowledge that injury is probable rather than merely possible, and conscious failure to act to avoid it. Prior accidents are not required, and railroads are held to the same general standard as other defendants. (Derived from Morgan v. Southern Pacific Transportation Co. (n.d.).)