Callahan v. Eel River & Eureka Railroad

92 Cal. 89 | Cal. | 1891

Belcher, C.

The material facts of this case are very nearly the same as those of Barrett v. Southern Pacific Company, decided by this court September 21,1891. (91 Cal. 296.)

It appears here that on the 5th of August, 1887, the defendant owned and was operating a railroad, one terminus of which was at the city of Eureka, in the county of Humboldt. At this terminus it had a turn-table, which was held in place by the customary fastening of an iron latch dropped in a slot. By lifting the latch from the slot the table could be revolved.

The plaintiff was a child six years old, whose parents lived a short distance from the turn-table. On the day above named, he returned from school about three o’clock, p. m., and thereafter was about the house and yard of his parents till he got his supper. His mother directed him not to leave the yard, but between six and seven o’clock, he, with some other boys, ran away down to the turn-table. He got onto the turn-table to have a ride, and sat down with his right leg over the side of it. The other boys turned the table, and as it went round his leg was caught between it and the timbers of the track, and so badly crushed that it had to be amputated above the knee.

Before this, boys had frequently played around and ridden on the turn-table, and when seen doing so by the employees of defendant, had been ordered away. At this time no employees were about.

The plaintiff brought this action to recover damages for his injury, and-asked judgment for the sum of thirty thousand dollars. The case was tried by a jury, and a verdict returned, on which judgment was entered for five thousand dollars. The defendant moved for a new trial, which was refused, and has appealed from the judgment and order.

The appellant contends that its motion for nonsuit should have been granted, and that numerous errors were committed by the court in its rulings, and in giving and refusing certain instructions to the jury.

We do not think it necessary to discuss the points presented, at length. They are made upon the theory that the plaintiff was a trespasser, and that defendant was no.t guilty of negligence; and they all seem, in effect, to have been considered and decided against appellant’s contention, in the Barrett case.

Upon the authority of that case, we advise that the judgment and order be affirmed.

Fitzgerald, 0., and Vanclief, 0., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.