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Perez v. Southern Pacific Transportation Co.2/28/1990
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
No. B039479
1990.CA.41057 ; 218 Cal. App. 3d 462; 267 Cal. Rptr. 100
February 28, 1990
GERMAN PEREZ, A MINOR, ETC., PLAINTIFF AND APPELLANT,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, DEFENDANT AND RESPONDENT
Superior Court of Los Angeles County, No. C 457138, Dzintra I. Janavs, Judge.
Ned Good and Richard Huver for Plaintiff and Appellant.
Cummins & White, Kent M. Bridwell, Julianne M. Sweeters and Michael M. Bergfeld for Defendant and Respondent.
Opinion by Fukuto, J., with Compton, Acting P. J., and Gates, J., concurring.
Fukuto
Plaintiff, German Perez, appeals the grant of summary judgment in favor of defendant Southern Pacific Transportation Company (Southern Pacific).
On June 21, 1982, plaintiff was 13 years of age. He, his brother Arturo and a cousin, Martin Ibarra, left Lincoln Park, where they had been swimming, and began walking home. While en route they stopped to play in the vicinity of railroad tracks located at or near a bridge on Valley Boulevard, west of Soto Street, in East Los Angeles.
While at the tracks, plaintiff saw a westbound train traveling at approximately 10 to 15 miles per hour. When the engine passed, plaintiff was standing on the far side of the third track. Plaintiff saw people in the engine and waved to them. They waved back.
After the engine passed, plaintiff's brother warned him not to jump onto the train. Plaintiff, disregarding his brother's warning, ran with his cousin toward the middle of the train. Plaintiff reached up and grabbed the top bar of a two-bar ladder and placed his left foot on the bottom bar. Plaintiff's foot slipped. He fell, sustaining severe injuries, for which he sued Southern Pacific.
Southern Pacific filed a motion seeking summary judgment on the ground that Civil Code section 1714.7 provides immunity from liability under these facts. The trial court granted Southern Pacific's motion. Plaintiff appeals.
Section 1714.7 provides that "No person who is injured while getting on, or attempting to get on, a moving locomotive or railroad car, without authority from the owner or operator of the railroad, or who, having gotten on a locomotive or railroad car while in motion without such authority, is injured while so riding or getting off, shall recover any damages from the owner or operator thereof for such injuries unless proximately caused by an intentional act of such owner or operator with knowledge that serious injury is the probable result of such act, or with a wanton and reckless disregard of the probable result of such act."
Plaintiff contends the trial court erroneously interpreted the requirement of section 1714.7 to mean only express authority and not express or implied authority, and that plaintiff's evidence established that plaintiff had implied
authority to board Southern Pacific's train. Plaintiff also contends that even if he did not have Southern Pacific's express or implied authority to climb aboard the train, the immunity of Civil Code section 1714.7 does not apply because plaintiff has established defendant's conduct was committed with a wanton and reckless disregard of its probable result.
Plaintiff concedes that he wa
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