96 P. 84 | Cal. | 1908
The defendants separately demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained without leave to amend, judgment was given for the defendants thereon and plaintiff appeals.
The action is to recover damages for injuries sustained, alleged to have been caused by the negligence of the defendants. The only questions presented are whether or not the facts show that the defendants were chargeable with neglect of any duty owing by them to plaintiff, and whether or not the facts stated show that the neglect of the plaintiff caused or contributed to his injury. The following is a statement of the facts alleged.
The plaintiff, at the time of the accident, was twelve years of age. The defendants were constructing a railroad track in and upon one of the public streets in the city of Oakland. The track was laid to a point near the crossing of 56th Street. It was placed in a trench some two feet deep with sharp banks on each side situated about two feet distant from the rails. A push-car heavily loaded with steel rails was, by the defendants, negligently left standing on this track in the street, unguarded by any person, uninclosed, unlocked, and unfastened, without any brake or device for stopping it when started. It was of such weight that when put in motion, even on a very slight grade, it could not be readily stopped. The grade of the track at that point descended slightly toward *573 56th Street. This was in the center of a populous residence district of the city where many children lived. The lots abutting the street opposite where the car stood were not inclosed and children were accustomed to congregate there for play. On that day, and during all the time of the construction of the roadbed and track, children from five to fourteen years of age, with the knowledge and consent of the defendants, were accustomed to congregate upon and around said push-car and play upon said car, and defendants then well knew of the danger from said car and track to children in that vicinity. The plaintiff lived with his parents about two hundred and fifty yards distant from the point where the car was left on the track. Other children at play on said push-car had put it in motion. "Plaintiff was then and there attracted to said car by its said condition and appearance and said surroundings as a place of play, and said plaintiff was then and there too young and inexperienced to foresee the danger therefrom, and plaintiff then and there got upon said car with said other children" and in the course of his play upon the said car, and in an attempt to stop it as it was running down the rails upon which it had been left standing by the defendants, he was caught between the side of the car and the bank of said trench and his foot was thereby thrown beneath the car wheel and badly crushed. He sues for the damage resulting from this injury.
The contrary not being alleged, it is to be assumed that the defendants had the lawful right, under permission from the proper public authorities, to lay its track in the streets and leave the push-car standing thereon. The car being thus rightfully in the street, the plaintiff had no right to go upon it, or to interfere with it in any way, without the consent of the defendants. He would have been, with respect to the car, technically a trespasser, except for the allegation that children were accustomed to play upon it with the knowledge and consent of the defendants.
We cannot perceive wherein the case presented by the complaint, its absolute truth being unqualifiedly admitted by the demurrer, is to be distinguished from the line of decisions commonly known as the "turn-table cases." These cases rest upon the same general principle as those which hold liable the owner of premises over which is a path which, with his *574
knowledge and consent, is frequented by the public, and in which he places a dangerous and concealed obstruction which causes injury to a person passing along the path. (See 37 Cent. Dig. Cols. 390 to 393, for citations.) For like reasons, one who places an attractive but dangerous contrivance in a place frequented by children, and knowing, or having reason to believe, that children will be attracted to it and subjected to injury thereby, owes the duty of exercising ordinary care to prevent such injury to them, and this because he is charged with knowledge of the fact that children are likely to be attracted thereto and are usually unable to foresee, comprehend, and avoid the danger into which he thus knowingly allures them. The leading case on this subject in this state is Barrett v. Southern PacificCo.,
It is true that in this state the rule has been strictly limited to the particular character of cases mentioned in the Barrett case. In Peters v. Bowman,
It is claimed by the respondents that later cases have practically repudiated the rule. An examination of the decisions, however, discloses the fact that in each case there was some feature by which it is distinguishable from cases similar toBarrett v. Southern Pacific Co., supra, and also from the case at bar. The case of George v. Los Angeles Railway Co.,
It is contended that the car was not in itself dangerous, andKaumeier v. City Electric Ry. Co.,
It is claimed that as the boy was twelve years of age he must be considered capable of exercising care for his own protection and chargeable with negligence to the same extent as a mature person. There is no precise age at which, as a matter of law, a child is to be held accountable for all his actions to the same extent as one of full age. (Consolidated etc. Ry. Co. v. Carslon,
The judgment is reversed.
Angellotti, J., and Sloss, J., concurred.