Barrett v. Southern Pacific Co.

De Haven, J. This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The plaintiff recovered a judgment for eight thousand five hundred dollars, and from this judgment, and an order denying its motion for a new trial, the defendant appeals.

It was shown upon the trial that defendant maintained a railroad turn-table upon its own premises in the town of Santa Ana. This table was about 150 yards from defendant’s depot, and near its engine-house, and distant seventy-two feet from a public street. It was provided with a latch and slot, such as is in common use on such tables, to keep it from revolving, but it was not protected by any inclosure, nor did the defendant employ any person whose special duty it was to guard it. There were several families -with small children residing [301]within a quarter of a mile from the place of its location, and previous to the time when plaintiff was hurt, children had frequently played around and upon it, but when observed by the servants of defendant were never permitted to do so. At the date of plaintiff’s injury he was eight years of age, and on that day he, with his younger brother, saw other boys playing with the turntable, and, giving them some oranges for the privilege of a ride, got upon it, and while it was being revolved, his leg was caught between the table and the rail upon the head-blocks, and so severely injured that it had to be amputated. The defendant moved for a nonsuit, which motion was denied. This ruling of the court, and certain instructions given to the jury, present the questions which arise upon this appeal.

The appellant contends that it was not guilty of negligence in thus maintaining upon its own premises for necessary use in conducting its business the turn-table in question, and which was fastened in the usual and customary manner of fastening such^ tables; that the plaintiff was wrongfully upon its premises, and therefore a trespasser, to whom the defendant did not owe the duty of protection from the injury received; and that the court should have so declared, and nonsuited the plaintiff.

This view seems to be fully sustained by the case of Frost v. Eastern R. R. Co., decided by the supreme court of New Hampshire, 64 N. H. 220; 10 Am. St. Rep. 396. But, in our judgment, the rule, as broadly announced and applied in that case, cannot be maintained without a departure from well-settled principles. It is a maxim of the law that one must so use and enjoy his property as to interfere with the comfort and safety of others as little as possible, consistently with its proper use. This rule, which only imposes a just restriction upon the owner of property, seems not to have been given due consideration in the case referred to. But this principle as a standard of conduct is of universal application, and the failure to observe it is, in respect to those