Citations
- 153 Cal. 571
Full opinion text
SHAW, J.
The defendants separately demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained without leave to amend, judgment was given for the defendants thereon and plaintiff appeals.
The action is to recover damages for injuries sustained, alleged to have been caused by the negligence of the defendants. The only questions presented are whether or not the ‘ facts show that the defendants were chargeable with neglect of any duty owing by them to plaintiff, and whether or not the facts stated show that the neglect of the plaintiff caused or contributed to his injury. The following is a statement of the facts alleged.
The plaintiff, at the time of the accident, was twelve years of age. The defendants were constructing a railroad track in and upon one of the public streets in the city of Oakland. The track was laid to a point near the crossing of 56th Street. It was placed in a trench some two feet deep with sharp banks on each side situated about -two feet distant from the rails. A push-car heavily loaded with steel rails was, by the defendants, negligently left standing on this track in the street, unguarded by any person, uninclosed, unlocked, and unfastened, without any brake or device for stopping it when started. It was of such weight that when put in motion, even on a very slight grade, it could not be readily stopped. The grade of -the track at that point descended slightly toward 56th Street. This was in the center of a populous residence ■district of the city where many children lived.' The lots abutting the street opposite where the car stood were, not inclosed and children were accustomed to congregate there for play. On that day, and during all the time of the construction of the roadbed and track, children from five to fourteen years of age, with the knowledge and consent of the defendants, were accustomed to congregate upon and around said push-car and play upon said car, and defendants then well knew of the danger from said car and track to children in that vicinity. The plaintiff lived with his parents about two hundred and fifty yards distant from the point where the car was left on the track. Other children at play on said push-car had put it in motion. “Plaintiff was then and there attracted to said car by its said condition and appearance and said surroundings as a place of play, and said plaintiff was then and there too young and inexperienced to foresee the danger therefrom, and plaintiff then and there got upon said car with said other children” and in the course of his play upon the said car, and in an attempt to stop it as it was running down the rails upon which it had been left standing by the defendants, he was caught between the side