Studer v. Southern Pacific Co.

Citations

• 121 Cal. 400
• 53 P. 942
• 1898 Cal. LEXIS 921

Syllabus

<p>Action fob Death—Contributory Negligence — Climbing between Freight Cars at Crossing—Nonsuit.—A child between twelve and thirteen years old, who attempts to cross between the cars of a freight train standing at a crossing, and while in the act of climbing over the couplings, is killed by the sudden and unannounced, starting of the train, is chargeable with contributory negligence as matter of law, and in an action to recover for such death a nonsuit is properly granted.</p> <p>In.—Eights at Eailroab Crossing.—Neither a railroad company having the right to use temporarily a crossing of its road over a street, as a part of its right of way, nor persons passing over the street crossing, are to be regarded as trespassers. Each is required to exercise hi* rights with reference to the rights of the other; hut an interference by one with the rights of (he other cannot entitle the other to disregard, the proper mode of using the street, or to act negligently in crossing: it.</p> <p>In.—Unlawful Blockade of Street—Negligent Passing not Excused.— A train of cars, unlawfully blocking a crossing, does not justify a. negligent attempt to pass between the cars; and the risk of passing between a train of cars likely to get under way at any moment is so great that no one who has a knowledge of the danger has a right to assume it.</p> <p>Id.—Negligence of Minor.—The fact that the deceased was only about twelve years of age, did not require the court to submit to the jury whether his attempt to cross between the cars constituted negligence, The law imposes upon minors the duty of giving such attention to their surroundings and care to avoid danger as may fairly and reasonably be expected from persons of their age and capacity; and children, as well as adults, must use the discretion which persons of their years ordinarily have, and cannot be permitted with impunity to indulge in conduct which they know, or ought to know, to be-careless.</p> <p>Id.—Negligence of Eailroad Company—No