DOYLE v. PACIFIC ELECTRIC RY CO

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District Court of Appeal, Second District, Division 2, California.

DOYLE v. PACIFIC ELECTRIC RY. CO. et al.*

Civ. 10427.

Decided: November 19, 1935

Henry G. Bodkin and V. P. Lucas, both of Los Angeles, for appellant. Frank Karr, E. E. Morris, C. W. Cornell, and O. O. Collins, all of Los Angeles, for respondents.

Plaintiff, a minor, brought suit by his guardian ad litem to recover damages for injuries suffered when he fell through a skylight in the roof of a ballroom and public dance hall at Redondo Beach, owned and operated by defendant Pacific Electric Railway and under the supervision of defendant Henry C. Froude. At the time of the accident plaintiff was thirteen years and eight months of age, a junior high school pupil. The dance hall was open to the public generally, and plaintiff was a spectator in the balcony. In one corner of the balcony a ladder, nailed to the wall, led to an opening in the ceiling, whence a three-plank “cat-walk” traversed the attic over the joists to a skylight through which it was customary to shower balloons upon dancers below. No signs warned the public to keep out of the attic, no lock was upon the door leading thereto, and the cat-walk and skylight were unprotected by railing, although the interior of the attic was lighted by electricity. Without invitation from any one, plaintiff climbed the ladder and, observing in the distance employees of defendants inflating balloons, walked down the cat-walk in their direction to the skylight, which at the time was covered with canvas and was several inches lower than the walk. Stepping upon the canvascovered skylight, he crashed through to the dance floor some twenty feet below and was painfully injured.

At the conclusion of plaintiff's case the court on defendants' motion directed the jury to return a verdict against plaintiff and for defendants. From the judgment entered pursuant to such directed verdict, plaintiff appeals.

In taking the case from the jury the trial court impliedly held that plaintiff was a trespasser as a matter of law, that plaintiff was guilty of contributory negligence as a matter of law, and that as a matter of law the device of ladder, “cat-walk,” skylight, and toy balloons as maintained by defendants was not an attractive nuisance, enticing to an immature and childish mind. Plaintiff presented his case upon the theory that defendants by implication invited him to explore an unguarded and open attic, and that the picture unfolded to the youthful mind of the explorer was such as to render defendants liable for maintaining an attractive nuisance, even assuming that plaintiff was a trespasser at the time.

While the general rule is that the owner of property owes no duty to mere trespassers to keep his property in safe condition, the law has declared an exception where attractive contrivances are maintained with the knowledge of the owner, alluring to children but inherently dangerous to them. It is want of ordinary care to maintain such premises, and the question as to whether the device complained of constitutes a trap, dangerous to children, is a question of fact ordinarily to be determined by the jury. Faylor v. Great Eastern, etc., Co., 45 Cal. App. 194, 187 P. 101. So, too, as the cited case holds, it is the jury's province to determine whether the owner has exercised ordinary care and whether the child was old enough and intelligent enough to appreciate and avoid the danger. Likewise it is ordinarily a question for the jury as to whether the child, who is required to exercise only that degree of care which is ordinarily exercised by minors of like age, mental capacity, and discretion, is guilty of contributory negligence. Mize v. Duffy, 106 Cal. App. 15, 288 P. 798, and cases therein cited.

A motion for a directed verdict should be granted only where there is but one conclusion that can be drawn from the evidence. In the instant case we feel that the evidence as submitted was not of this conclusive nature, and that the jury should have been allowed to determine the factual questions involved. In so holding we have in mind the general rule that the exercised discretion of a trial court in directing a verdict should not be disturbed except for a clear showing of abuse of discretion, but the facts here do not constitute that exceptional case which resolves them into pure questions of law for the determination of the court.

The judgment is therefore reversed.

GOULD, Justice pro tem.

I concur: CRAIL, P. J. I dissent: WOOD, J.