Johnston v. Associated Terminals Co.

SPENCE, J.

Plaintiff brought this action seeking to recover damages for the alleged wrongful death of his minor son. At the close of the testimony the trial court directed a verdict in favor of defendants, and from the judgment entered upon the directed verdict plaintiff appeals.

The deceased, a boy of about 12 years of age, met his unfortunate death while he was skating with three companions on the Embarcadero in San Francisco. He fell beneath the rear wheel of a trailer which was being drawn by a tractor operated by defendants. While there was some conflict in the evidence on mi-nor points, there was no conflict on any points which are material in this discussion.

The truck and trailer were proceeding between pier 24 and 20 at a rate of speed which was not in excess of 7 miles per hour. The trailer, which was about 6 feet wide and 20 feet long, was heavily loaded with canvas tents. Defendant Stone was driving the tractor and defendant Murphy was seated on the front of the trailer. As the boys approached the vehicles, they were warned to keep away by one or both of these men. They nevertheless took hold of the trailer or the load thereon at various points and were being propelled along on their skates. The deceased was at the side of the trailer in front of the rear wheel and in some manner fell and was crushed.

Appellant contends that the trial court erred in directing a verdict in favor of respondents but we find no merit in this contention. The uncontradicted evidence shows that respondents were lawfully operating the tractor and trailer upon the streets and the boys were trespassers when they either boarded or took hold of the trailer. The rules covering such situations have been frequently discussed and there appears to be no necessity of further elaborating upon them.

(Allred

v.

Pioneer Truck Co.,

179 Cal. 315 [176 Pac. 455];

Norland

v.

Gould,

200 Cal. 706 [254 Pac. 560] ;

Bakos

v.

Shell Co.,

115 Cal. App. 142 [300 Pac. 982];