Gutirrez By and Through Heredia v. Southern Pac. Co.

• Decision Date: 30 October 1959
• Docket Number: No. 18268,18268
• Court: California Court of Appeals Court of Appeals
• Parties: John GUTIRREZ, a minor, by and through his Guardian ad litem, Nora HEREDIA, Plaintiffs and Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Valley Ice Company, a corporation, Valley Ice Company, a copartnership, and Western Pacific Railroad Co., a corporation, Defendants and Respondents.

Page 326

345 P.2d 326

174 Cal.App.2d 866

John GUTIRREZ, a minor, by and through his Guardian ad litem, Nora HEREDIA, Plaintiffs and Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Valley Ice Company, a corporation, Valley Ice Company, a copartnership, and Western Pacific Railroad Co., a corporation, Defendants and Respondents.

No. 18268.

District Court of Appeal, First District, Division 1, California.

Oct. 30, 1959.

Rehearing Denied Nov. 25, 1959.

Jack Miller, San Francisco, for appellants, Duncan Davidson, San Francisco, Kroloff, Brown, Belcher & Smart, Stockton, of counsel.

Boyd, Taylor, Nave & Flageollet, San Francisco, Hagar, Crosby & Rosson, Oakland, Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, for respondents, Robert A. Seligson, San Francisco, of counsel.

FRED B. WOOD, Justice.

Judgments of dismissal in favor of each of the three defendants were entered after failure of the plaintiff to further amend, following the sustaining of defendants' general and special demurrers to plaintiff's second amended complaint, with leave to amend.

(1) In the first count of the complaint plaintiff seeks to hold the Southern Pacific Company, the Western Pacific Railroad

Company and the Valley Ice Company responsible for injuries received by him while playing on or about the railroad tracks at Stockton.

The significant allegations may be summarized as follows:

Valley Ice kept, maintained and operated an ice house immediately east of two sets of railroad tracks belonging to and maintained, owned and kept by the Western Pacific, and was engaged in selling and loading ice in refrigerated box cars belonging to Western Pacific. Immediately to the west of the Western Pacific's tracks there were two sets of tracks belonging to and kept, operated and maintained by the Southern Pacific. The ice house is 'just south' of the 6th Street crossing of said tracks.

The ice house and these tracks and other tracks adjoing them are on land which is constantly crossed by children and adults with defendants' consent and permission. Defendants have permitted children to use the area as a playground and to cross the tracks on various errands and on the way to and from school.

Among these tracks are the main line tracks adjoining them are on land which is a steady stream of railroad traffic, and 'numerable' refrigerated box cars on the tracks adjoining the ice company for the purpose of being iced. The box cars and the moving trains are inherently dangerous to any person in the vicinity or who might come in contact therewith. Children coming in contact with the moving trains were afforded no protection therefrom. Defendants knew or should have known that the same would be attractive to children and expose them, including plaintiff, to probable injury, they because of their age being unable to foresee, comprehend and avoid the danger.

None of this area was enclosed by a fence or any other barrier. It was inadequately policed and watched over by defendants. Children were afforded ready access to it and were in constant danger of being run over by trains belonging to or operated by defendant railroad companies.

The refrigerated box cars and the movement of the trains in said area constituted an invitation for children to play upon the cars and along the tracks and in the vicinity of moving trains, in accordance with the propensities and practices of children, all of which defendants knew or should have known. The defendants were well aware of the presence of children in this area.

On March 22, 1956, plaintiff was playing with another child on refrigerated box cars in this location. These cars were placed there by Western Pacific. They had been or were being or were waiting to be loaded by Valley Ice. While playing there, plaintiff saw an oncoming train operated by the Southern Pacific and because the train was coming on an adjoining track, he became scared, came down from the box car, ran along the tracks between the box cars and the moving train, and fell under the wheels of the train, receiving serious and permanent injuries.

In such a case as this the applicable rules of law are those stated in section 339 of the Restatement of the Law of Torts. Reynolds v. Willson, 51 Cal.2d 94, 103, 331 P.2d 48; Courtell v. McEachen, 51 Cal.2d 448, 457, 334 P.2d 870; Garcia v. Soogian, 52 Cal.2d 110, 338 P.2d 433. The text of section 339 is set forth in each of these cases and need not be repeated here. At pages 98 and 457 of 51 Cal.2d, at page 50 of 331 P.2d and at page 874 of 334 P.2d and 107 of 52 Cal.2d and 434 of 338 P.2d.

These allegations meet the requirements of clause (a) of section 339: 'the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass.' They also meet the requirements of clause (b) of section 339: 'the condition is one which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children.'

We doubt if plaintiffs' allegations meet the requirements of clause (c) of section 339: 'the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it.' Here the danger was obvious, that of moving railroad trains. No adult in possession of his faculties could claim nondiscovery of the danger or nonrealization of the unreasonable risk which entering the area, or intermeddling, would entail. It is difficult to imagine that a 14-year old boy of average intelligence would be lacking in similar powers of perception. There is no suggestion that this 14-year old is subnormal in any respect.

We believe we are confirmed in this view by the holding of our Supreme Court in Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433 supra. A girl 12 years and 8 months old was injured while trying to jump over a stock of prefabricated building panels that contained windows. The court said: 'The ability to appreciate danger varies, of course, with the age of the child, and there can be no recovery if the child is of sufficient age and mental capacity to look out for himself under the circumstances presented. (See Prosser on Torts (2d ed. 1955) 441, 443-444; 2 Harper and James, The Law of Torts, 1453-1454.)

'As we have seen, the panels containing windows were heavy and were firmly stacked a considerable distance from the street in such a manner that the glass could be reached only at the top of the piles, 24 to 30 inches from the ground. The chance was slight that a child of plaintiff's age would fail to see the glass or appreciate what risk was presented, and there is no evidence that plaintiff was of less than average intelligence for her age. It may be, as plaintiff in effect testified, that, because it was getting dark, she did not see the glass before jumping, but defendants could not reasonably be required to foresee that there was any substantial likelihood that a normal child of more than 12 would not appreciate the danger of jumping over a large pile of building materials when darkness prevented sufficient perception of the nature of the obstacle. In the light of the undisputed facts now before us, there is no sound basis for concluding that the condition which caused plaintiff's injury should have been recognized as constituting an unreasonably great risk of serious bodily harm which plaintiff was unable to discover or appreciate because of her immaturity.' 52 Cal.2d at page 113, 338 P.2d at page 436.

We realize that those words were uttered after a trial but it would not seem to require a trial to prove the obvious dangers and risks attendant upon loitering or playing in the railroad yard here described and the awareness of such dangers and risks which a 14-year old boy of average intelligence would possess. If he is subnormal in that regard the complaint, we believe, should so indicate.

Nor do we think the allegations of the first count meet the requirements of clause (d) of section 339: 'the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.' In this connection, plaintiff merely alleged the area was not adequately policed or watched over and was not enclosed by a fence or other barrier. Nothing is said about the feasibility or relative utility of such measures. This area abuts a street crossing, as alleged. That itself suggests a question as to the feasibility and effectiveness of a fence.

In a number of cases it has been held necessary to allege facts that establish every element of...