Skinner v. Knickrehm

[598]

ALLEN, P. J.

This is an appeal by defendant Wm. Knickrehm Go. from a judgment and an order denying a new trial, the action being one by an infant on account of personal injuries.

It is averred in the complaint that defendants, who were engaged in moving a house through the streets of Los Angeles, attached to the rear of such house so being moved a wagon with heavy wheels, upon which was rested neither bed nor frame; that such house, and the wagon so attached and under the charge of defendants, were being moved through the streets very slowly, and that defendants left the wagon unguarded and

unattended;

that by reason of its slow movement, and on account of the absence of any frame or bed, such wagon became and was attractive to children who might desire to climb and ride thereon; that plaintiff, an infant of the age of four years, wholly unable to appreciate or guard or protect himself against dangerous appliances, was attracted to said wagon, and by the negligence of defendants invited to get upon the same and ride thereon, and being'thereon was, by the negligence and carelessness of the defendants and their servants, and without any fault on his part, caused to be jolted or thrown off of said wagon and the wheels ran up and against his head and injured him.

It is insisted that from these facts no obligation or duty of defendants toward plaintiff is shown to have been undischarged or unfulfilled, and, therefore, it follows that no negligence is made to appear. It may be conceded that one traveling upon a public highway, using ordinary care in the management and control of a vehicle under his charge, is not an insurer against accident, nor liable for damages even to children of immature years who, playing upon such public highway, shall be injured in an attempt to ride thereon, without acquiescence or invitation on the part of the party in charge of such vehicle. There rests, however, upon everyone so using a public thoroughfare the duty of exercising ordinary care in the management and control of vehicles under his charge, to the end that others using such public places, exercising like care, or who, by reason of tender years, are unable to appreciate or guard against danger, may not suffer injury from the operation of such vehicles, and it is the duty of the one so operating such a vehicle to at all times retain such