Weik v. Southern Pacific Co.

Plaintiff brings the action for damages resulting from an injury to his minor child while playing on a turntable on defendant’s property near its depot at West Napa. The cause was tried by a jury and plaintiff had a verdict for five hundred and .seventy-five dollars. Defendant appeals from the order denying its motion for a new trial.

Reliance for a reversal of the judgment is based upon three grounds—namely: 1. That plaintiff was guilty of contributory negligence “which was the cause of his son-Albert’s injuries”; 2. That plaintiff’s son “was of such an age and understanding that he was capable of knowing and appreciating that the turntable was a dangerous thing to play on and that he might be injured in so doing, and that he was guilty of contributory negligence which was the proximate cause of his injury,” and 3. That the court erred in its instructions to the jury and in refusing to give certain instructions requested by defendant.

Defendant, on September 14, 1910, the date of the accident, was operating a branch line of its main road from West Napa to Sausalito and, near its depot or near its track in West Napa, it maintained a turntable which was about twenty feet from a public road and was not inclosed or guarded in any way. Several families besides plaintiff’s resided in the immediate neighborhood. His property adjoined the right of way of the defendant and he lived with his wife and two children about 125 yards distant from the turntable. To reach the

Plaintiff was of foreign birth and testified by means of an interpreter. The family had lived in West Napa about a year and a half at the time of the accident. Plaintiff testified, on cross-examination: “I never cautioned my boys or forbid them to go upon the railroad tracks, nor did I ever forbid them from playing around the freight ears standing on the tracks or playing on the turntable. I did1 not forbid them from playing on the turntable for I did not know that it was a turntable and did not have any interest there at all, or know that any one was forbidden to go about it. I did not warn them to keep off the railroad tracks because I did not know that it was forbidden for children to be on the track. I did not know before the accident that the turntable would turn. I did not know that it was dangerous for children to play about it. I knew it was dangerous for children to be on the railroad tracks when trains were coming, but everybody else passed along the railroad tracks at various times and I did not think there was any danger save when trains were passing. My children left home for school about 8:30 in the morning, returned home at noon for lunch and after school was over would return home about 3 or 3:30. After school they did such work as gathering wood, tending the garden and watering the garden—at other times would go out and play. I did not know they were out playing at the time of the accident—until after it happened. I had not warned the children not to go out and play on the day of the accident. If there was work for them to do at home I would tell them what to do in the morning before I left for work and if not I allowed the children to play as they chose after school. I did not know where the children went to play, they went wherever they wanted to.”

A turntable was originally built between Lynn and Orndorffi streets in 1905, but it was replaced at the same point by the present one in May, 1910, but was not much used. On September 3, 1910, on the occasion of the coming of a circus to Napa, it was thought necessary to use it and on that day it was examined and was found properly locked. It happened, however, when put to use it would not revolve on account of the weight of the locomotive. On September 4, 1910, it was examined by the section foreman, Bottarini, who testified that it was part of his duty to look after it, and' was found properly locked. It is not necessary to describe its construction. Suffice it to say that unless locked boys or other persons could easily revolve it. Bottarini testified: “It was my duty to inspect the turntable and see if it was O. K., inspect everything. The turntable was only used once, or attempted to be used once, during the year 1910. That was on September 3d when they tried to use it . . . for the circus. ... At that time the turntable was fastened and locked with a patent switch lock.” He examined it again on the 4th to see what was the reason it did not work the day before. He testified: “On September 4th the turntable was fastened and locked. The next time I visited the turntable was on September 20th when I heard

Witness Babb, called by defendant, testified: “I have seen children turning that turntable previous to the time of this boy getting hurt. I could not state how long it was, probably two or three or four days. I would not state but I know I saw them turning the turntable. I have a faint recollection about going out there and cautioning the children as a friend and father would, that they ought not to do this for fear of an accident, they might get hurt, but what children they were I do not know. ... I warned these boys because I recognized that it was a dangerous contrivance for boys to play with.” Witness Crawford, defendant’s roadmaster, testified: “The track foreman never made any complaint to me that children were or had been playing on the turntable. If the turntable was not locked with a lock through the staple any one could lift the latch and the turntable would then be free to move. ’ ’ It was shown that, at the time of the trial, in February, 1912, the boy, Albert, stood well in his classes at school and was brighter than average boys of his age and his cross-examination showed him to be possessed of quick apprehension and good intelligence for one of his age. How much of this brightness was due to his experience in the year and a half after he was injured can only be conjectured. The facts were brought out, no doubt, to meet plaintiff’s claim that the boy’s immature age should be considered in judging of any contributory negligence attributed to him by defendant.

The foregoing is a fair statement of the situation at the time plaintiff’s boy appears at the turntable. What there happened comes entirely from the boy’s testimony. The following is his testimony in chief:' “What were you doing on that turntable before you got hurt?

The cross-examination was pursued at great length. We will quote sufficient to fairly present the circumstances surrounding the accident. He testified: “I had never played on the turntable before the day I was hurt. Q. How did you come on the turntable that day? A. Oh, us boys, we were thinking about having some fun, just like the merry-go-round, push it around and jump on it and have a ridé. Q. And when you got there you found it unlocked ? A. Yes. Q! Wasn’t there two catches, wasn’t there a big flange like that to keep it from turning around ? A. No. Q. Nothing there at all? A. No. Q. Don’t you remember right at the end—• A. (Interrupting.) Yes, I saw those blocks but they were not locked. Q. They were not locked, but you had to lift them up? A. I don’t know about that; I did not see them. Q. You don’t know anything about that now, you

One cannot but be impressed with the candor and frankness exhibited by this lad in his answers. He does not appear to have tried to conceal any fact connected with his experience in manipulating this turntable and riding on it. His consciousness of the danger came to him after he was hurt and not before. He had never seen the turntable operated and it had in fact not been used during the entire year 1910. He had never been on it before though he saw it and knew what it was intended for. He and his companions found it unlocked and in a condition to be used as a plaything and his answer to the question how he came to go there tells the whole story —“Oh, us boys, we were thinking about having some fun, just like the merry-go-round, push it around and jump on it and have a ride. ’ ’ He had gone around on the table successfully several times and, as near as can be seen from his explanation, he was hurt because he slipped down into a position of danger which he had not foreseen, of which he naively said: “I knew it after I got hurt.” When questioned as to his right to go there and his knowledge that it was railroad property, his answers were that he said he knew what the turntable was for and that it belonged to the railroad company, but he said he did not know he had no right to be there

The principle governing this case is fully stated in Barrett v. Southern Pacific Co., 91 Cal. 296 , [ 25 Am. St. Rep. 186 , 27 Pac. 666 ], The facts in the present case pointing to defendant’s negligence are less excusatory than were the facts in the case cited. Said the court: “If defendant ought reasonably to have anticipated that leaving this turntable unguarded and exposed, an injury such as plaintiff suffered was liable 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 that the child was a trespasser. ... 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 belong to childhood and a reasonable man must be presumed to know this and- is 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 mature years to appreciate and avoid danger, and, in proportion to the lack of judgment on their part, the care which must be observed towards them by others is increased. ’ ’ In the case cited the turntable was fastened in the way usual among railroad companies at that time, i. e., with a latch and slot to keep it from revolving. In the present ease a method more effective was used, so that when locked the turntable could not be moved. But the evidence was that defendant’s servant whose business it was to inspect and look after the turntable did not see it, after September 4th, until September 20th, and then because he was told of the accident which happened on the 14th. And this same employee of defendant knew that boys had been in the habit of playing on it. We entertain no doubt of defendant’s negligence in the matter and we do not think that the facts

Defendant requested certain instructions marked “A” and “B” respectively. Both are predicated upon the proposition that defendant should have the verdict unless the jury should find in the one case that the defendant “knew that said lock was broken or unlocked,” and, in the other, that defendant “cannot be charged with negligence in failing to inspect or examine said turntable or lock . . . unless it shall further appear from the evidence that said defendant knew that said lock had been broken or unlocked and failed to relock or fix the same.” The court gave the instructions as requested by inserting after the word “knew” the words “or by the exercise of ordinary care could have known.” We think the modification was proper.

Instruction marked “0” was refused. It charged that if the jury should find that defendant did not break or cause to be broken the fastenings but they were broken without its knowledge or consent and remained broken without the knowledge or consent of defendant, the verdict should be for defendant. This instruction omits the qualification, as in “A”

Instruction marked “D” was refused. “A parent who permits his child to play in places where, or with instruments or appliances with which he knows or as a reasonable person ought to know the child is liable to be injured, and such child is injured while playing in such places, or with such instruments or appliances, cannot recover damages for such injury to such child.” Contributory negligence was not alleged of either parent in the answer. As, however, evidence on that point was admitted without objection, the most that appeared was that neither of the boy’s parents had forbidden him from playing with the turntable. There was no evidence that they • permitted it and the boy’s father testified that he knew nothing about the turntable. Furthermore, the instruction ignores altogether the defendant’s negligence as a possible or probable cause of the injury.

We discover no prejudicial error and the order is, therefore, affirmed.

Hart, J., and Burnett, J., concurred.