Joslin v. Southern Pac. Co.

• Decision Date: 23 February 1961
• Citation: 11 Cal.Rptr. 267,189 Cal.App.2d 382
• Court: California Court of Appeals Court of Appeals
• Parties: Robbie JOSLIN, by his Guardian and litem, Evelynn Wiley, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corp., Defendant and Respondent. Civ. 19303.

Page 267

11 Cal.Rptr. 267

189 Cal.App.2d 382

Robbie JOSLIN, by his Guardian and litem, Evelynn Wiley, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corp., Defendant and Respondent.

Civ. 19303.

District Court of Appeal, First District, Division 2, California.

Feb. 23, 1961.

Hearing Denied April 19, 1961.

Lewis & Stein, Field, DeGoff & Reiman, Marvin E. Lewis, San Francisco, for appellant.

Bledsoe, Smith, Cathcart, Johnson, Phelps, Robert A. Seligson, San Francisco, for respondent.

STONE, Justice pro tem.

This appeal is from a judgment which followed an order sustaining defendant's demurrer without leave to amend. Since the judgment is based on the pleadings alone, the allegations of the complaint must be viewed in the light most favorable to the plaintiff. We assume that plaintiff has epitomized the allegations of the complaint as advantageously as possible, so we accept his summary which is:

'The complaint alleges in substance as follows:

'1. The defendant operated the train in question on a public city street in Redwood City California.

'2. That the train was a freight train that moved at such a slow rate of speed that a child could easily jump upon it while it was so moving.

'3. That defendants knew or should have known that children daily and frequently played along the street on which said train so operated.

'4. That the slow moving train operating on the city street was attractive to children and tended to cause them to run alongside of it and to attempt to board it while the train was in motion and in fact children daily and frequently did so.

'5. That the above condition was a trap and constituted an attractive nuisance to children.

'6. That the defendant did not place any safeguards along the tracks nor did it place any guards to keep the children off the tracks, nor did it take any precautions whatsoever to keep said children from jumping on said trains nor did it station employees on either the side or the rear of the train to prevent children from jumping on same, and took no precautions whatsoever to keep children from jumping on the train.

'7. That the defendant with minimal cost, considering the risk of operating a slow moving train on said street and in a neighborhood where children were known to be playing and jumping on said train, could have

'(a) Stationed employees on either side of or to the rear of the train to keep the children from jumping on the same, or

'(b) Could have had employees walking along the side of the train as it proceeded along the city street, or

'(c) Need not have operated a train on a city street.

'8. That on April 7, 1958, the plaintiff, a minor, was attracted to the slow moving freight train while said train was slowly moving along said city street in Redwood City, and the slow movement of the train did constitute a trap and was an attraction to plaintiff, because plaintiff, being a normal child and having the normal desire of a child of said age to jump on a slow moving train operated on a city street, did attempt to jump on and board said train and fell doing so under the wheels of said train, and as a proximate result thereof and of the said negligence of defendant, sustained the loss of his left leg.'

Appellant makes no contention that had he been allowed to amend his complaint he could have stated his cause of action any differently or more favorably than he has. He argues that his amended complaint as filed states a cause of action within the attractive nuisance doctrine and that the demurrer should have been overruled.

The attractive nuisance doctrine in California follows section 339 of the Restatement of Torts and the rule is summarized in King v. Lennen, 53 Cal.2d 340, at page 343, 1 Cal.Rptr. 665, at page 666, as follows:

'The rule set forth in section 339 of the Restatement of Torts has been adopted as the law of this state with respect to the liability of a possessor of land for the death of or injury to a child trespasser. Garcia v. Soogian, 52 Cal.2d 107, 110, 338 P.2d 433, 435; Courtell v. McEachen, 51 Cal.2d 448, 457, 334 P.2d 870; Reynolds v. Willson, 51 Cal.2d 94, 103, 331 P.2d 48. The section reads: 'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of 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, and (c) 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, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.''

These rules were discussed and applied in Gutirrez v. Southern Pacific Co., 174 Cal.App.2d 866, 345 P.2d 326, a railroad case similar to ours. In that case, the plaintiff was a 14-year-old boy who had been run over while playing on the railroad right-of-way in the city of Stockton. A demurrer to the complaint was sustained, plaintiff declined to amend and judgments of dismissal were entered. Discussing the complaint in the light of clause (c) section 339 of the Restatement, the court said at page 869 of 174 Cal.App.2d, at page 327 of 345 P.2d:

'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.'

Defendant contends the reasoning of Gutirrez is applicable to the case before us and we are inclined to agree. The dangers of being near a moving train, let alone attempting to board it, are so patent that we shall not burden this opinion with a discussion of them. Suffice it to say that we believe such dangers should have been obvious to a 12-year-old boy. It is not the purpose of the attractive nuisance doctrine to lend relief to the youngster who knows or is capable of realing the possible calamitous consequences of a dangerous act, but...