Southern Pac. Co. v. Marquez

• Decision Date: 06 December 1930
• Docket Number: No. 6192.,6192.
• Citation: 44 F.2d 286
• Parties: SOUTHERN PAC. CO. v. MARQUEZ.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.2d 286 (1930)

SOUTHERN PAC. CO. v. MARQUEZ.

No. 6192.

Circuit Court of Appeals, Ninth Circuit.

November 3, 1930.

Rehearing Denied December 6, 1930.

Francis M. Hartman, of Tucson, Ariz., for appellant.

L. Kearney, of Los Angeles, Cal., and James R. Dunseath, of Tucson, Ariz., for appellee.

Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge.

RUDKIN, Circuit Judge.

This is an appeal from a judgment in favor of the plaintiff in an action to recover damages for personal injuries. The principal assignment of error is based on the refusal of the court to direct a verdict for the appellant at the close of the evidence. There was testimony tending to prove that for a number of years last past the appellant has maintained a turntable on the line of its road in the central part of Clifton, Ariz., a town of approximately 2,500 inhabitants. The turntable is located at a point forty or fifty feet from a public highway leading through the town, from which it is in plain view. The turntable was unguarded when not in use and the only lock or fastening to keep it in place consisted of a flat piece of iron or steel, with projections at either end, placed between the stationary rails and the rails on the turntable at the junction between the two. This locking or fastening device weighed approximately fifty pounds and could be removed from its position by lifting on a couple of rings inserted on its upper side, at either end, for that purpose. The lock or fastening could readily be removed from its position by a boy of 12 or 13 years of age, and had been so removed in the past. There was further testimony tending to prove that on different occasions, running over a period of several years before the accident, children were observed playing on and about the turntable. On the evening of the day of the accident, the appellee, a boy of 10 years of age, went from his home to a meat market in the town, about three-quarters of a mile distant, and, finding the meat market closed, he and his elder brother, about 13 years of age, repaired to the turntable, where a large number of children were engaged in play. The turntable was not locked or fastened in any way at the time, and as the appellee rode around on the revolving table his leg was caught between the rails on the table and the rails on the approach thereto, causing the injuries complained of. Of course, there was testimony tending to prove the contrary, but we are not concerned with mere conflicts in considering the sufficiency of the testimony to support the verdict.

We think the foregoing facts bring the case within the doctrine of the turntable cases, and that the question of negligence on the part of the appellant, including the question of the adequacy of the fastening device in use, and the question of contributory negligence on the part of the appellee, were for the consideration of the jury. Sioux City & P. Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745; Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434; Edgington v. Burlington, C. R. & N. Ry. Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561; Reynolds v. Iowa Southern Utilities Co. (C. C. A.) 21 F.(2d) 958. The doctrine announced in the Stout Case and reaffirmed in the McDonald Case, is well stated in the dissenting opinion in United Zinc Co. v. Britt, 258 U. S. 268, 277, 42 S. Ct. 299, 300, 66 L. Ed. 615, 36 A. L. R. 28: "In 1873, in Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, this court in a turntable case, in a unanimous decision, strongly approved the doctrine that he who places upon his land, where children of tender years are likely to go, a construction or agency, in its nature...