Barrett v. Southern Pacific Co.
27 P. 666
Cal.
1891
Check Treatment
De Haven, J.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The plaintiff recovered a judgment for eight thousand five hundred dollars, and from this judgment, and an order denying its motion for a new trial, the defendant appeals.

It was shown upon the trial that defendant maintained a railroad turn-table upon its own premises in the town of Santa Ana. This table was about 150 yards from defendant’s depot, and near its engine-house, and distant seventy-two feet from a public street. It was provided with a latch and slot, such as is in common use on such tables, to keep it from revolving, but it was not protected by any inclosure, nor did the defendant employ any person whose special duty it was to guard it. There were several families -with small children residing *301within a quarter of a mile from the place of its location, and previous to the time when plaintiff was hurt, children had frequently played around and upon it, but when observed by the servants of defendant were never permitted to do so. At the date of plaintiff’s injury he was eight years of age, and on that day he, with his younger brother, saw other boys playing with the turntable, and, giving them some oranges for the privilege of a ride, got upon it, and while it was being revolved, his leg was caught between the table and the rail upon the head-blocks, and so severely injured that it had to be amputated. The defendant moved for a nonsuit, which motion was denied. This ruling of the court, and certain instructions given to the jury, present the questions which arise upon this appeal.

The appellant contends that it was not guilty of negligence in thus maintaining upon its own premises for necessary use in conducting its business the turn-table in question, and which was fastened in the usual and customary manner of fastening such^ tables; that the plaintiff was wrongfully upon its premises, and therefore a trespasser, to whom the defendant did not owe the duty of protection from the injury received; and that the court should have so declared, and nonsuited the plaintiff.

This view seems to be fully sustained by the case of Frost v. Eastern R. R. Co., decided by the supreme court of New Hampshire, 64 N. H. 220; 10 Am. St. Rep. 396. But, in our judgment, the rule, as broadly announced and applied in that case, cannot be maintained without a departure from well-settled principles. It is a maxim of the law that one must so use and enjoy his property as to interfere with the comfort and safety of others as little as possible, consistently with its proper use. This rule, which only imposes a just restriction upon the owner of property, seems not to have been given due consideration in the case referred to. But this principle as a standard of conduct is of universal application, and the failure to observe it is, in respect to those *302who have a right to invoke its protection, a breach of duty, and, in a legal sense, constitutes negligence. Whether, in any given case, there has been such negligence upon the part of the owner of property, in th$ maintenance thereon of dangerous machinery, is a question of fact dependent upon the' situation of the property and the attendant circumstances, because upon such facts will depend the degree of care which prudence would suggest as reasonably necessary to guard others against injury thetefroin; “ for negligence in a legal sense is no more than this: the faiffire to observe, for the protection of the interests of another persf ~ ^°t degree of care, precaution, and vigilance which the ____ stances justly demand, whereby such other person suffers injury.” (Cooley on Torts, 630.) The question of defendant’s negligence in this case was a matter to be decided by the jury, in view of all the evidence, and with reference to this general principle as to the duty of the defendant. If defendant ought reasonably to have anticipated that leaving this turn-table unguarded and exposed, an injury such as plaintiff suffered was likely to occur, then it must be held to have anticipated it, and was guilty of negligence in thus maintaining it in its exposed position. It is no answer to this to say that the child was a trespasser, and if it had not' intermeddled with defendant’s property it would not have been hurt, and that the law imposes no duty upon the defendant to make its premises a safe playing-ground for children.

In the forum of law, as well as of common sense, a child of immature years is expected to exercise only such care and self-restraint as belongs to childhood, and a reasonable man must be presumed to know this, and required to govern his actions accordingly. It is a matter of common experience that children of tender years are guided in their actions by childish instincts, and are lacking in that discretion which is ordinarily sufficient to enable those of more mature years to appreciate and avoid danger, and in proportion *303to this lack of judgment on their part, the care which must be observed toward them by others is increased. And it has been held in numerous cases to be an act of negligence to leave unguarded and exposed to the observation of little children dangerous and attractive machinery which they would naturally be tempted to go about or upon, and against the danger of which action their immature judgment opposes no warning or defense.

The following are some of the cases in which this has been held: Railroad Co. v. Stout, 17 Wall. 657; Hydraulic Works v. Orr, 83 Pa. St. 335; Powers v. Harlow, 53 Mich. 507; 51 Am. Rep. 154; Nagel v. Mo. Pac. R’y Co., 75 Mo. 653; 42 Am. Rep. 418; Koons v. Railway Co., 65 Mo. 592; Railway Co. v. Fitzsimmons, 22 Kan. 686; 21 Am. Rep. 203; O’Malley v. St. Paul, M., & N. R’y Co., 43 Minn. 289; Whirley v. Whitman, 1 Head, 610. These cases, we think, lay down the true rule.

The fact that the turn-table was latched in the way such tables are usually fastened, or according to the usual custom of other railroads, although a matter which the jury had a right to consider in passing upon the question whether defendant exercised ordinary care in the way it maintained the table, was not, of itself, conclusive proof of the fact. (Stout v. Railroad Co., 2 Dill. 294; O’Malley v. St. Paul, M., & N. R’y Co., 43 Minn. 289.)

Nor is the liability of the defendant affected by the fact that the table was set in motion by the negligent act of other boys. This is so held in some of the cases above cited, and the same principle was announced by this court in Pastene v. Adams, 49 Cal. 87, in which case it was held that a person who had negligently piled lumber, which had remained in that condition for a long time, was not exempt from damages sustained by one on whom it fell because the lumber was made to fall by the negligence of a stranger.

We see no error in the second instruction given at request of plaintiff. The portion to which exception was *304taken is not very well expressed, but we think, taken as a whole, the instruction states the law correctly.

Judgment and order affirmed.

McFarland, J., and Beatty, C. J., concurred.