Walker v. Pacific Electric Railway Co.

WOOD (Parker), J. Plaintiff appeals from a judgment of- dismissal which was based upon an order sustaining defendant’s general demurrer without leave to amend.

The complaint, based upon the attractive nuisance doctrine, stated in substance: that' plaintiff was 14 years of age, and Harold Walker was his guardian ad litem; that at all times mentioned in the complaint defendant was a common carrier of passengers for hire, and operated a railroad in Los Angeles County, a part of such railroad extending from Venice High School to and along Trolley Way in Venice; that on April 28, 1943, arid for some time prior thereto and ever since on school days, about 3:30 p.m., the defendant operated a certain train known as the “Pacific Electric Special” from the Venice High School to and along said Trolley Way for the purpose of giving the school children special transportation facilities and catering particularly to them; that on the date mentioned, about 3:30 p.m., plaintiff with others of said school children boarded said train, paying to defendant the usual fare; and that said' train was made up. of three cars, and plaintiff boarded the middle car. It was alleged further in paragraph [292]VIII of the complaint that on said day and for a long time prior thereto and ever since, the defendant permitted the following conditions to prevail on said train: (a) Crowding and over-crowding of the ears by the children, many of whom cannot be seated and who stand and crowd at the ends of the cars, (b) Many of the children who stand at the ends of the cars make it a practice to open the doors of said cars “before they come to a complete stop and jump off them before they come to the places where the said” train is scheduled to stop, (e) Frequently the children jump off the steps of the cars either while the train is in motion or at different stops in order to allow the children in the car to get off, and then jump back on the car either before or after the train starts again, (d) Frequently the children stoop or bend down from the steps of the cars and pick up rocks to throw into the canals on the way home, (e) “Each car has four doors, two at each end of the ear, the two rear doors of each car being the only ones supposed to be used by passengers in getting off from the ear. All the doors have a latch with a bar that crosses the top of the door. These latches are so maintained by the defendant PE that anyone can lift the bars and open the doors. School children make it a practice of raising the bars, opening the doors and then jumping on or off the Special [the train], as hereinabove described.” It was alleged further in the complaint that on said day, and for a long time prior thereto, the defendant had full knowledge of said conditions set forth in paragraph VIII, and although the defendant from time to time would warn school children not to indulge in said practices set forth in paragraph VIII, the defendant permitted them “to indulge in such practices and tolerated the same as school children’s play or pranks, or what is generally known as ‘horse-play’ ”; that the ages of the children varied from 12 to 18 years of age; that the'train, as used by said children, “was attractive and alluring to such school children as a plaything, and very dangerous for them to use as in said paragraph VIII hereof described”; that the children were too young to appreciate the danger incurred by them in acting and playing on the train as described in said paragraph VIII; that “all these things” were known to the defendant; that on said day while plaintiff was a passenger on the train, he and a number of other children were “carrying on” on said train as described in paragraph VIII, and “were jumping on and off from the cars thereof while