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Malloy v. Hibernia Sav. & Loan Soc.

Supreme Court of California
Apr 22, 1889
3 Cal. Unrep. 76 (Cal. 1889)


          Department 2. Appeal from superior court, city and county of San Francisco; F. W. LAWLER, Judge.

          Action by Daniel Malloy against the Hibernia Savings & Loan Society, John Grant, Julius Platshek, and Samuel Platshek, for negligently causing the death of plaintiff’s minor child. The second amended complaint was as follows:

          ‘The plaintiff complains of the defendants and alleges in this, his second amended complaint: (1) That on and prior to the 16th day of August, 1876, he was, and still is, the father of William Malloy, a minor child of the age of three years and ten months, now deceased. (2) That the defendant, the Hibernia Savings & Loan Society, was on and prior to the said 16th day of August, 1876, and is now, a corporation under and by virtue of the laws of the state of California. (3) That on the said 16th day of August, A.D. 1876, the said defendants were the owners of, and had possession, management, and control of, certain real estate, being a lot about 175x200 feet, more or less, on the south-east corner of Bryant and Second streets in the city and county of San Francisco, and were the owners of, and in the possession, management, and control of, the buildings on said real estate, and all improvements connected therewith and pertaining thereto. (4) That the said defendants, on the said 16th day of August, 1876, while the owners of said real estate and the buildings thereon and improvements connected therewith, and while in the possession thereof and having the care, control, and management thereof, did unlawfully, wrongfully, and negligently keep and maintain, and suffer and permit to be and remain, upon said real estate, (at and near the buildings and improvements thereon,) and connected therewith, and about eight or ten feet from the sidewalk of Bryant street,— a public traveled street in said city and county aforesaid,— a certain privy-vault, pit, sink, cess-pool, or vault, filled to the surface of the earth with the contents thereof, and of the depth of about ten (10) feet, and (9) feet long by six and a half (6 1/2) feet in width, without any guard, wiring, or protection whatever over or around the same, and without any inclosure to separate the same from the sidewalk of Bryant street aforesaid, and in an unguarded, negligent, and dangerous condition. (5) That the said defendants, on or about the 10th day of August, 1876, as plaintiff is informed and believes, being as aforesaid the owners of, and in the possession, control, and management of, the said real estate and the buildings and improvements thereon and pertaining thereto, and of an inclosure and fence (separating said Bryant street from said privy-vault, pit, and sink) then upon the same, did unlawfully, wrongfully, and negligently remove the fences inclosing the said privy-vault, sink, cess-pool, pit, or vault from Bryant street as aforesaid, and all the covering over and around the same connected therewith, and removed a portion of the building adjoining the same, and raised a portion thereof of two or three feet from the ground for the purpose of removing the same, and previous thereto had commenced the work of grading said lot of land and of hauling and removing the earth therefrom, (said premises,) then open and uninclosed, and accessible for teams and conveyances then employed by said defendants, their agents and servants, in removing the earth therefrom, and in hauling and removing the improvements and material thereof; by reason of which said wrongful, unlawful, and negligent acts and omissions of said defendants, their agents and servants, in suffering and permitting the said privy-vault, sink, cess-pool, or vault to be and remain at and upon their said premises and property, and in removing the inclosure and covering thereof, and permitting the same to be and remain in said open, uncovered, and dangerous condition as aforesaid, and for want of a sufficient guard, covering, and protection over or around the same, or a fence or inclosure separating it from said Bryant street aforesaid, or any guard, covering, or protection whatever, the plaintiff’s minor child, without any fault or want of care on the part of plaintiff, fell into the same, and was on said 16th day of August, A.D. 1876, drowned therein, and was taken out of the same dead, to the damage of the plaintiff in the sum of $25,000. Wherefore plaintiff prays judgment against the said defendants for the sum of twenty-five thousand dollars damages, and the costs of this action.’

          Defendants demurred to the complaint for failure to state a cause of action, which demurrer was sustained, and plaintiff appeals.

         The charge of negligence against defendants is sufficient. Bliss, Code Pl. § 211. The jury must pass on the question of negligence of the child or parent and that of defendant. Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. Styron, 66 Tex. 421, 1 S.W. 161; Birkett v. Ice Co., 110 N.Y. 507, 18 N.E. 108; Ihl v. Railroad Co., 47 N.Y. 317; Thurber v. Railroad Co., 60 N.Y. 335. Great caution is required of persons having dangerous premises exposed near a public street. Lynch v. Nurdin, 1 Q. B. 29; Lane v. Atlantic Works, 107 Mass. 104; Birge v. Gardner, 19 Conn. 507; Powers v. Harlow, 19 N.W. 259; Works Co. v. Orr, 83 Pa. St. 336; Railroad Co. v. Allen, 22 Kan. 285. Persons carrying on excavations where there are small children, must take measures to keep them away. Fink v. Furnace Co., 10 Mo.App. 69. The court cannot determine when it is negligence in the parent to permit his child to run in the street. Bliss v. South Hadley, 145 Mass. 91, 13 N.E. 352; Kline v. Railroad Co., 37 Cal. 406; Karr v. Parks, 40 Cal. 193; Schierhold v. Railroad Co., Id. 455; Largan v. Railroad Co., Id. 273; Roller v. Railroad Co., 66 Cal. 231, 5 P. 108; Nehrbas v. Railroad Co., 62 Cal. 321.

         Where the facts are uncontradicted, the question is for the court. Flemming v. Railroad Co., 49 Cal. 253. If defendants were making such use of his property as a reasonable man would, and the complaint shows this to be true, he is not guilty of negligence. If the person drowned had been an adult, it will not be claimed that damages could have been recovered from defendants. Nor could the father of a child of years of discretion have recovered under the facts here. Shear. & R. Neg. (3d Ed.) § 505, p. 599; Hardcastle v. Railway Co., 4 Hurl. & N. 67; Binks v. Railway Co., 3 Best & S. 244; Howland v. Vincent, 10 Metc. 371. The mere killing or injury of a child non sui juris is not proof of defendants’ negligence. Railroad Co. v. Lammert, 12 Ill.App. 408; Railroad Co. v. Stumps, 69 Ill. 409. A person is not responsible for injuries resulting from lack of discretion on part of child or from childish indiscretion. Shear. & Neg. (3d Ed.) § 49, p. 64; Burke v. Railroad Co., 49 Barb. 529; Lumsden v. Russel, 18 Ct. Sess. Cas. 468; McMahon v. Railway Co., 39 Md. 438; Cram v. Railroad Co., 112 Mass. 38. Nor is it his duty to guard against the possibility of accident from such cause. Railroad Co. v. McLaughlin, 47 Ill. 265. The age of the child here should cut no figure in the case. The issue is, was it negligent to take away the fence from the cistern under the circumstances of this case? ‘This issue must be determined by the test whether such an exposure is consistent with the mode of action of a prudent and skillful business man. In applying this test we must necessarily consider the community as a mass.’ Whart. Neg. § 315, p. 287; City of Chester v. Porter, 47 Ill. 66; Brown v. Railway Co., 58 Me. 384. To hold that on a well-traveled street in San Francisco a man shall not remove fences, etc., to improve and alter his property because by a possibility an unguarded infant may stray 12 feet away from the street, and be injured, is to put a bar to public improvements. There is no allegation that defendants owed a duty to the deceased child, nor that he was rightfully upon the premises. The exposure of defendants’ premises not being hazardous or negligent, plaintiff cannot recover. Hughes v. Macfie, 2 Hurl. & C. 744; Mangan v. Atterton, L. R. 1 Exch. 239; Zoebisch v. Tarbell, 10 Allen, 385; Severy v. Nickerson, 120 Mass. 306; Roulston v. Clark, 3 E. D. Smith, 366. It has been held that where there is a bare license there is no duty, and an infant trespasser can be in no better position than a licensee. 1 Shear. & R. Neg., (4th Ed.) § 97, p. 157. The New York doctrine of contributory negligence of infants has been adopted in this state, and bars plaintiff’s recovery. Meeks v. Railroad Co., 52 Cal. 602.

         The deceased was a bare trespasser, and, it not appearing that he was invited or induced to come upon the premises, defendants owed him no duty, and plaintiff cannot recover. Hughes v. Macfie, 2 Hurl. & C. 744; Mangan v. Atterton, L. R. 1 Exch. 239; Lane v. Atlantic Works, 111 Mass. 136; Wood v. School-Dist., 44 Iowa, 27; Kohn v. Lovett, 44 Ga. 251; Singleton v. Railway Co., 7 C. B. (N. S.) 289; Larmore v. Iron Co., 101 N.Y. 391, 4 N.E. 752: Wright v. Railroad, 129 Mass. 440; McAlpin v. Powell, 70 N.Y. 127; Howland v. Vincent, 10 Metc. 371; Duff v. Railroad Co., 91 Pa.St. 458; Cauley v. Railway Co., 95 Pa. St. 398; Moore v. Railroad Co., 99 Pa. St. 301; Hargreaves v. Deacon, 25 Mich. 1; McDonald v. Railway Co., 35 F. 38.          COUNSEL

         [3 Cal.Unrep. 79] Edward P. Cole, for appellant.

         Tobin & Barry, for respondents.

          Frank Eisner & Platshek, for respondents.


          THORNTON, J.

          This action was brought by the father against the defendants for negligently causing the death of his minor child. The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained. This ruling on the demurrer presents the only point for consideration. We have examined the complaint and are of opinion that the court erred in its ruling on the demurrer. The judgment is therefore reversed and the cause remanded, with directions to the court below to overrule the demurrer to the complaint. So ordered.

          We concur: McFARLAND, J.; SHARPSTEIN, J.

Summaries of

Malloy v. Hibernia Sav. & Loan Soc.

Supreme Court of California
Apr 22, 1889
3 Cal. Unrep. 76 (Cal. 1889)
Case details for

Malloy v. Hibernia Sav. & Loan Soc.

Case Details

Full title:MALLOY v. HIBERNIA SAV.&LOAN SOC. et al.

Court:Supreme Court of California

Date published: Apr 22, 1889


3 Cal. Unrep. 76 (Cal. 1889)
3 Cal. Unrep. 76

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