remarks may not apply to persons non sui juris, who may wander upon the property, but we do not regard plaintiff as such a person. He was an intelligent, active lad of twelve years, who had been warned by his father of the danger of going into the excavation. He must be taken as voluntarily assuming the risk of injury in going down the dump. The attraction of a piece of wire does not excuse the trespass." It will be observed in the case last cited that the boy had simply been warned by his father of the danger of going into the excavation. In this case the boy was eleven years old. He had been driven out of the inclosure of the reservoir. There was a fence 4 feet high. He had to climb that in order to commit the trespass. Hence it is made apparent that there is much stronger reason in this case for invoking the rule announced by Judge Macfarlane that the attraction of the reservoir furnished no excuse for the trespass. Where the testimony relied upon to constitute negligence is undisputed, it is then a question of law to be determined by the court whether such given state of facts tends to prove negligence. Keown v. St. Louis R. Co. 141 Mo. 86, 41 S. W. 926.

the ease of Peters v. Bowman, 115 Cal. 345. | tection against such persons. These last 56 Am. St. Rep. 106, 47 Pac. 113, "it would be necessary to have either filled or drained the reservoir;" for no ordinary fence would answer the purpose of preventing boys from getting on the inside of the reservoir if they once made up their minds to disregard all barriers and the wishes of the owners of the property. Plaintiff's' son was eleven years old. He knew that the city prohibited him from getting on the inside of this fence, for, as one of the witnesses for plaintiffs in this case testified, he had been chased away from it; and, had this fence been 10 feet high, it would have no more accomplished the purpose of keeping boys from the inside of it than the one that was erected by the defendant. The only difference would have been a slight additional effort in order to have climbed over it. While the children had the perfect right to visit this park and enjoy the pleasures of it, it is clearly apparent from the testimony in this case that they were perfectly safe in the enjoyment of such pleasures with the barrier erected by the defendant so long as they confined themselves to the pleasures of the park and did not attempt to surmount a reasonable barrier to gain an entrance to the reservoir, in violation of the known wishes and express prohibitions of the defendant city. Hence we have reached the conclusion that the facts as developed at the trial of this case fail to show that the defendant was negligent in not taking reasonable precautions to prevent injury to persons visiting the park. In Butz v. Cavanaugh, 137 Mo. 503, 59 Am. St. Rep. 504, 38 S. W. 1104, plaintiff sought to recover for injuries received by a boy twelve years old in running down a dump in the city of St. Louis. Certain ordinances of the city were read in evidence requiring dangerous places within the city adjacent to public streets to be properly inclosed with fence or walls. Plaintiff was not injured by falling into a dangerous excavation on a street. When injured he was on private property some distance from the street, where he went voluntarily. There was a failure on the part of the city to comply with these ordinances, and the plaintiff was injured. Macfarlane, J., in discussing the propositions involved in that case, said: "But this ordinance is in derogation of a common right, and a failure to comply with its requirements should not be treated as a license to voluntary trespassers to go upon the property at will. It was evidently intended to protect those only who were lawfully using the public streets, and not those who voluntarily leave the street and go upon the property for their own convenience or pleasure. A fence would be no pro

To support this judgment we are cited to what are commonly known as the "Turntable Cases,” and a line of cases predicated upon the principles announced in them. It is apparent that upon the crucial question presented in this case, and what we have said upon that question, that those cases are not applicable, and furnish no support to the judgment of the trial court in this cause, and there is no necessity for reviewing them. While many courts of very high standing have indulged in very strong adverse criticism of the principles announced by these cases, we deem it unnecessary to express an opinion as to the correctness of the criticism so indulged. The question presented in Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745, which is the leading turntable case, was whether or not the leaving exposed of dangerous machinery which was attractive to children, unguarded, constituted negligence. In the case at bar we start out with the propositions that this reservoir, situated as it was, was attended with great danger to children who might visit the park, and the vital question is as to whether the defendant city adopted reasonable means to keep the children away from such danger. It will be observed that in the Stout Case, Judge Dillon, in his charge to the jury stated that: If defendant "took no means to keep children away, and no means to prevent accident, they would be guilty of

negligence and would be answerable for tinguish it from the one now under considdamages caused to children by such neg-eration. The sheds or boxes in the incloligence." [2 Dill. 298, Fed. Cas. No. 13.504.] It is clear from that case that the basis for recovery was predicated upon the fact that the defendant took no means to keep the children away from a turntable that had been left exposed, and which was attractive to children. That is not the case. Here we have a barrier reasonably sufficient to prevent children, or anyone else, from going inside of the reservoir. In addition to that, the notification by the watchman that they were not permitted to go inside. The court in the Stout Case said that "the evidence was not strong, and the negligence was slight." With that view as to the testimony in that case, we can readily surmise as to what would have been the conclusion of the court if it had been confronted with the testimony in this case, which so clearly shows a reasonable precaution to prevent any accident to children visiting the park. From this it is manifest that there are no differences to be reconciled upon the principles announced in the turntable cases and the conclusions as reached in the case at bar. Hence we repeat there is no necessity for burdening this opinion with a review of the principles involved in the turntable cases.

sure in the Kansas case were defects in the fence, and boys could pass into the reservoir without difficulty, and, in addition to this, we have the watchman or custodian of the premises consenting and permitting the boys to so enter the reservoir. It will be observed that the conclusions announced by the learned judge in that case were predicated principally upon the consent and permission of the defendant to the boys to trespass and enter the reservoir. The discussion of the propositions in Price v. Atchison Water Co. 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450, makes manifest the reasons of the conclusions announced. The proposition was thus stated and disposed of: "Counsel for defendant in error endeavors to distinguish the 'turn-table' and other like cases from the one under discussion upon the ground that in such firstmentioned cases the dangerous instruments or places were not inclosed, so as to exclude or warn trespassers, while in the present case the reservoirs had been so fenced as to render access to them difficult, to say the least, and, in any event, to operate as notice to stay on the outside because of the dangerous situation within. Whatever merit such precautionary measures might have under other circumstances, it is sufficient to say that in this case they were not reasonably effective, because it was the daily habit of trespassing boys to mount the fence and frequent the reservoirs on the inside, and this habit was known to the company's responsible agent, and was not only tolerated, but went unrebuked by him. Knowing the fence to be ineffective either as a barrier or warning, it was the duty of the company to expel the intruders, or adopt other measures to avoid accident. Whatever advantage the defendant in error might have gained from the erection of a reasonably effective barrier or warning is neutralized by the facts of its knowledge that the boys did trespass, and its permission to them to do so. It is as though no fence at all had been erected." We have no hesitancy in saying that, if the facts as disclosed by the record in this case were similar to those in the case just cited, the question of the negligence of the defendant would have been properly submitted to the jury; but that the facts in these two cases are materially different is too plain for discussion. In the Kansas case we have defects in the inclosure, which made it convenient for the boys to enter the reservoir, or at least not difficult. Emphasizing this, there was no objection, and, as the court states, permission and consent to enter inside of the res

Learned counsel for respondents earnestly direct our attention to the case of Price v. Atchison Water Co. 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450, as supporting their views upon the questions presented in this controversy. It must be conceded that this case most nearly approaches the determination of the propositions involved in the case at bar of any of the cases to which our attention has been called. Yet upon a careful analysis of that case it is clearly distinguishable from the one in hand. That was a reservoir case, and there were some means adopted to avoid the danger to children who frequented the reservoir for fishing or for other sports. According to the statement of the learned judge as to the facts in that case, the means consisted of a barb-wire fence 10 or 12 wires high. There were two gates through the fence, which, however, were always kept closed, and two rudely constructed contrivances designed for stiles. but being as described by some of the witnesses "sheds" or large boxes nailed to adjacent trees and inclosing most of the wires, but upon and over which it was not difficult for boys to climb from the outside. A watchman and custodian of these grounds was employed by the defendant. He was aware of the habit of the boys of the town to climb over the stiles, and permitted them to do so without objection. The facts in that case clearly dis-ervoir. In this case we have no defects

could not crawl. We cannot so hold. In Tarras v. Winona, 71 Minn. 22, 73 N. W. 505, we held that the city may be negligent in failing to protect travelers on a street from a precipice or embankment along the side of the same which is peculiarly dangerous. The place in question was peculiarly dangerous, and it may be conceded that for the protection of persons on the street it was the duty of the city to maintain a proper fence or barrier at this place. But, in our opinion, it appears by the evidence that the city has done so. No such extraordinary duty should be imposed on the city as that of maintaining a barrier so high and so close that children cannot find ways or means to surmount it." The court also ruled during the course of the opinion that "the fact that children were in the habit of going over or through the fence in ques

sand below cannot change the result." This case, in our opinion, states the true and correct rule as applicable to cases of this character, and is decisive of the first proposition involved in this controversy.

in the fence. It was 4 feet high. Boys could not climb over it without removing their boots or shoes. The watchman had prohibited them, and chased them away from the reservoir, and this unfortunate boy, Maurice Carey, had been chased away by one of the watchmen on a prior occasion. In our opinion, the facts disclosed by the record in this case show that the erection of the fence by the city, the attention given . to the reservoir by the watchmen, and the notification to the children that they were not permitted inside of the reservoir, was the exercise of reasonable care to prevent accident to children or other persons visit ing the park. To hold otherwise would be imposing upon the defendant the extraordinary duty of maintaining a barrier so high and so close that children could not find ways or means to surmount it, and this we are unwilling to do. This proposition and down the precipice to play in the tion was sharply presented in Lineburg v. St. Paul, 71 Minn. 245, 73 N. W. 723. The principle involved in that case was identical with the one in the case before us. The facts may thus be briefly stated: "Along the side of a certain portion of Second street in St. Paul is a precipice 40 feet deep, and nearly perpendicular for a considerable portion of that depth. The edge of the precipice is within the line of the street as dedicated, and the sidewalk on that side of the street extends along near such edge. Between the sidewalk and the edge of the precipice the city had erected and maintained a fence 3 feet high above the surface of the sidewalk. This fence consisted of posts driven in the ground, a board 6 inches wide and 1 inch thick nailed flat on the tops of the posts, and two boards of the same dimensions nailed one above the other on the sides of the posts. The space between each of these boards was about 10 inches. Plaintiff's son, a boy five and a half years of age, at play in the street, crawled through this fence or climbed over it, fell down the precipice, and was killed. This action was brought to recover damages under the statute for the wrongful death. On the trial the court dismissed the action at the close of plaintiff's evidence, and from an order denying a new trial plaintiff appeals." It must be noted that this precipice was adjacent to a public street, where children frequently traveled, and had the right to do so. That this was a dangerous place there can be no dispute. The court very clearly and forcibly declared the law appli-safeguards to protect children against turncable to the state of facts. It was said: "It is claimed that it is a question for the jury whether or not the city was negligent in failing to maintain at the place in question a fence or barrier over which children could not climb and through which they

In Gavin v. Chicago, 97 Ill. 67, 37 Am. Rep. 99, in discussing a case where a fouryear-old child was injured by a defective bridge, the bridge not having any barrier, it was ruled that the corporation was not required to so construct its bridges that accidents would be impossible to persons using them. It was said by the court that that would be imposing upon them a higher degree of care than the public welfare would demand. Something must always be left to the provident care of persons using them. The bridge in question was reasonably safe to persons using ordinary care. No duty rests on the city to make such bridge safe for children to play around or upon, and, if they wander from their homes without the knowledge of parents and sustain injury at such places, it must be attributed to mere accident.

It was said by the Virginia supreme court in Clark v. Richmond, 83 Va. 358, 5 Am. St. Rep. 281, 5 S. E. 369, in discussing the question of protection to children from danger in places adjacent to streets and walks of the city, that "this duty cannot be held to extend to the protection of children against every sudden freak that may possess them. Corporations have, indeed, been held, in some instances, liable for a failure to adopt suitable precautions and

tables and dangerous machines, which they have permitted to remain sufficiently near their streets and sidewalks to allure and entice children to using them to their hurt; but no case, so far as we are aware, has gone to the extent of holding a municipal