Smith by Dunworth v. Southern Pac. Co.

• Decision Date: 02 December 1963
• Citation: 35 Cal.Rptr. 575,222 Cal.App.2d 728
• Court: California Court of Appeals Court of Appeals
• Parties: Leonard L. SMITH, by his Guardian Ad Litem, Alma DUNWORTH, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 27287.

Page 575

35 Cal.Rptr. 575

222 Cal.App.2d 728

Leonard L. SMITH, by his Guardian Ad Litem, Alma DUNWORTH, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

Civ. 27287.

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

Dec. 2, 1963.

Rehearing Denied Dec. 20, 1963.

Hearing Denied Jan. 29, 1964.

Jones & Weldon, by Charles R. Weldon, Compton, for appellant.

E. D. Yeomans, William E. Still, John J. Corrigan, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal by plaintiff from a judgment entered after the trial court granted defendant's motion for summary judgment in an action for personal injuries. Plaintiff, a fifteen-year old minor, sustain the injury when he attempted to hitch a ride on defendant's train, lost his hold and fell underneath a moving freight car.

The chronology of significant events is as follows:

On March 29, 1962, plaintiff filed his complaint for personal injuries. Therein it was alleged in substance that defendant owned and operated a railroad right of way through the City of Norwalk; that at the time of the injuries complained of and for many years prior thereto the defendant's tracks and spur lines through the area were regularly, habitually, frequently, continuously and commonly use by children of the community as a common playground; that the use by the children was at all times well known to defendant; that at the time of the injuries and for many years prior thereto children of the community regularly, habitually, frequently, continuously and commonly would jump upon, play upon and ride upon the freight cars to such an extent that the custom became well and generally known to the people and children in the community and was at all times known to the defendant. That on or about May 1, 1959, at or about 7:55 a. m., plaintiff, then fifteen years of age, together with other children in the course of traveling to high school, was playing in and around the railroad spur line; that at that time a train of freight cars operated by the defendant's employees was operating along the track; that as the freight train proceeded the employees of defendant observed, or should have observed in the exercise of ordinary care, the plaintiff and other children playing and walking on, about and near the railroad line and 'at said time and place the plaintiff attempted to hitch a ride on said train, lost his hold, fell underneath the moving freight car and suffered injuries. * * *' That the injuries to the plaintiff were the result of carelessness, recklessness and negligence of the defendant herein. That as the said freight train proceeded through the abovementioned area, the employees of defendant observed or should have in the exercise of ordinary care observed the plaintiff and the other children playing and walking on, about and near the said railroad line. At said time and place the plaintiff attempted to hitch a ride on said train, lost his hold, fell underneath the moving freight car and suffered injuries as more particularly set forth hereinafter; that the injuries to the plaintiff were the result of the carelessness, recklessness and negligence of the defendant herein (a) in failing to anticipate and guard against the actions of the plaintiff and children in said area in attempting to board defendant's train, (b) in failing to have one of its employees stationed at a point on the train to prevent children playing on said trains or track, (c) in failing to enclose the said area and post adequate barriers, barricades and obstructions to prevent its use by the plaintiff and other children and failure to post a watchman to prevent children from using the said area and the trains passing through as a playground, (d) in failing to use due care under the circumstances to avoid injuring the minor plaintiff after having knowledge of his presence alongside the train, (e) in assenting to the children of the community playing in and about the said area and in and about the freight trains passing through the said area, (f) in knowingly allowing children to play about and ride on said freight trains, (g) in failing to have a watchman on said train when defendant knew or should have known that the children of the community jumped on the passing freight cars which were dangerous to them.

Defendant Southern Pacific Company filed its answer on May 4, 1962. Among other things it admitted that on or about May 1, 1959, plaintiff was then fifteen years old and was injured while jumping on and off one of defendant's moving trains traveling along upon its private railroad right of way; that plaintiff attempted to hitch a ride on the train and lost his hold and fell under the moving freight car. Defendant asserted as a second separate distinct answer and defense that plaintiff was contributorily negligent and as a third affirmative defense that plaintiff 'assumed the risk in connection with the accident alleged to have given rise to his injuries by voluntarily placing himself on the railroad tracks and railroad train of the defendant located on the defendant's private railroad right of way at or about 7:55 a. m. on May 1, 1959; that the nature and condition of said premises, right of way and railroad train allegedly under the control of the defendant at the times and places referred to in the plaintiff's complaint and the dangers inherent by such conditions were fully known to the plaintiff and fully understood and appreciated by him, and he freely and voluntarily assumed the risk attendant upon such conditions as they existed during the times referred to in the plaintiff's complaint.'

On January 11, 1963, defendant filed a notice of motion for summary judgment...