Smith v. Southern Pacific Co.

This is an appeal by plaintiff from a judgment entered after the trial court granted defendant’s motion for summary judgment in an action for personal injuries. Plaintiff, a 15-year old minor, sustained the injury when he attempted to hitch a ride on defendant’s train, lost his hold and fell underneath a moving freight ear.

The chronology of significant events is as follows:

On March 29, 1962, plaintiff filed his complaint for personal injuries. Therein it was alleged in substance that defendant owned and operated a railroad right of way through the City of Norwalk; that at the time of the injuries complained of and for many years prior thereto the defendant’s tracks and spur lines through the area were regularly, habitually, frequently, continuously and commonly used by children of the community as a common playground; that the use by the children was at all times well known to defendant ; that at the time of the injuries and for many years prior thereto children of the community regularly, habitually, frequently, continuously and commonly would jump upon, play upon and ride upon the freight ears to such an extent that the custom became well and generally known to the people…