that, if the place is one "where there is reasonable ground for expecting or anticipating the presence of persons, the presumption of a clear track is destroyed, and, even though the persons be trespassers, it does not relieve those in charge of the moving cars from keeping a careful lookout for the person so expected to be present at that point."26 Such would be the case where the company was aware that persons were in the habit of crossing the tracks at a particular place which was not a public thoroughfare.27 If it were a public crossing, there is, of course, no trespass involved, and a duty arises to exercise vigilance.28

A child may be a trespasser, and by weight of authority it would seem that the above rules are as applicable to him as to an adult; 29 but in some states an exception is recognized in cases of what have been termed "attractive" or "alluring nuisances." Where the injured person is of tender years, the owner of the premises may be liable "if the things causing the injury have been left exposed and unguarded and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts." 30

26 Fearons v. Kansas City Elerated R. Co., 180 Mo. 208, 223, 79 S. W. 391, per Fox, J. In accord, Shaw v. Georgia R. R., 127 Ga. 8, 55 S. E. 960; Cincinnati, N. O. & T. P. Ry. Co. v. Blankenship, 157 Ky. 699, 163 S. W. 1123; Fleming v. Louisville & N. R. Co., 106 Tenn. 374, 61 S. W. 58; Blankenship v. Chesapeake & O. Ry. Co., 94 Va. 449, 27 S. E. 20; Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361.

27 Green v. Chicago & W. M. Ry. Co., 110 Mich. 648, 68 N. W. 988; Byrne v. New York Cent. & H. R. R. Co., 104 N. Y. 362, 10 N. E. 539, 58 Am. Rep. 512. See Meitzner v. Baltimore & O. R. Co. (1909) 224 Pa. 352, 73 Atl. 434.

28 Florida Cent. & P. R. Co. v. Williams, 37 bla. 406, 90 South. 558; Baltimore & O. R. Co. v. Owings, 65 Md. 502, 5 Atl. 329; Urbas v. Duluth, M. & N. Ry. Co., 113 Minn. 309, 129 N. W. 513; Rafferty v. Erie R. Co., 66 N. J. Law, 444, 49 Atl. 456; Norton v. North Carolina R. Co., 122 N. C. 910, 29 S. E. 886.

29 Louisville & N. R. Co. v. Logsdon's Adm'r, 118 Ky. 600, 81 S. W. 657; Morrissey v. Eastern R. Co., 126 Mass. 377, 30 Am. Rep. 686n; Moore v. Pennsylvania R. Co., 99 Pa. 301, 44 Am. Rep. 106; Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 436. But see Snare & Triest Co. v. Friedman, 169 Fed. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367. 30 City of Pekin v. McMahon, 154 Ill. 141, 147, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114.

31

Though the application of the doctrine has not been limited to machinery, it is chiefly with respect thereto that the question has arisen,32 and in a considerable proportion of the cases the injury was caused by a railroad turntable. As will be observed, it "rests upon the conversion of the infant trespasser into an innocently baited victim." 34 Recognizing its unfairness to the landowner, whose use of the premises is thus unreasonably restricted,35 for what is there that the average child may not convert into a plaything?

31 Kopplekom v. Colorado Cement-Pipe Co. (1901) 16 Colo. App. 274, 64 Pac. 1047, 54 L. R. A. 284 (cement tubing); City of Pekin v. MeMahon, supra (pond); Osborn v. Atchison, T. & S. F. Ry. Co., 86 Kan. 440, 121 Pac. 364 (dilapidated building); Cœur d'Alene Lumber Co. v. Thompson, 215 Fed. 8, 131 C. C. A. 316, L. R. A. 1915A, 731 (well).

32 Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S. W. 301, 38 L. R. A. (N. S.) 754; Smith v. Marion Fruit Jar & Bottle Co., 84 Kan. 551, 114 Pac. 845; Chesko v. Delaware & Hudson Co., 218 Fed. 804, 134 C. C. A. 492.

33 Weik v. Southern Pac. Co. (1913) 21 Cal. App. 711, 132 Pac. 775; Edgington v. Burlington C. R. & N. Ry. Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561; Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203; O'Malley v. St. Paul, M. & M. Ry. Co., 43 Minn. 289, 45 N. W. 440; Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745.

34 Burdick on Torts (3d Ed.) 526.

35 But see Thompson on Negligence, vol. 1, § 1026. With reference to the view that the property owner owes no greater measure of duty to the child trespasser, the learned author observes: "This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory, and visits upon him the consequences of his trespass just as though he were an adult."

To this, however, it may be urged that recovery is not denied an adult trespasser by way of punishment, but "because the landowner owed him no duty to have the premises in safe condition for his entry. Why should the moral innocence of a childish intruder raise a duty on the part of the landowner which is not created by the moral innocence of an adult intruder? The youthful innocence of the child does not make restrictions on the right of user less damaging to the owner, or make the alleged duty of preventing the entrance of an intruder, or of protecting him from harm after entry, less burdensome than in the case of an adult. Indeed the duty would be more onerous in the case of a child." "Liability of Landowners

36

there is a strong tendency on the part of many courts which have adopted it to limit its application, and by the weight of authority it is repudiated.37

Licensees

A licensee goes upon the premises for his own purposes and with the permission of the occupant, express or implied. For instance, one is a licensee who calls for the purpose of inquiring as to the character of a servant, where he upon whom the call is made is not engaged in keeping a registry

to Children Entering Without Permission," by Prof. Jeremiah Smith, 11 Harv. L. Rev. 349, 434, at page 368.

36 Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, 56 Am. St. Rep. 106; Savannah, F. & W. Ry. Co. v. Beavers, 113 Ga. 398, 39 S. E. 82, 54 L. R. A. 314; Stendal v. Boyd, 73 Minn. 53, 75 N. W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597, note; Louisville & N. R. Co. v. Ray, 124 Tenn. 16, 134 S. W. 858, Ann. Cas. 1912D, 910.

37 "We have only to add that every man who leaves a wheelbarrow or a spade upon his lawn, a rake with its sharp teeth pointing upward, upon the ground or leaning against a fence, a bed of mortar prepared for use in his new house, a wagon in his barnyard, upon which children may climb and from which they may fall, or who turns in his lot a kicking horse or a cow with calf, does so at the risk of having the question of his negligence left to a sympathetic jury. How far does this rule go? Must his barn door and the usual apertures through which the accumulations of the stable are thrown be kept locked and fastened, lest 12 year old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams? May a man keep a ladder or a grindstone or a scythe or a plow or a reaper without danger of being called upon to reward tres passing children whose parents owe and may be presumed to perform the duty of restraint? Does the new rule go still further, and make it necessary for a man to fence his gravel pit or quarry? And, if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences? Can a man nowadays safely own a small lake or fish pond? And must he guard ravines and precipices upon his land?" Ryan v. Towar, 128 Mich. 463, 470, 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481, per Hooker, J. In accord, Wilmot v. McPadden, 79 Conn. 367, 65 Atl. 157, 19 L. R. A. (N. S.) 1101; Daniels v. New York & N. E. R. Co., 154 Mass. 349, 28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253; FROST v. EASTERN R. R., 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396, Chapin Cas. Torts, 303; Delaware, L. & W. R. Co. v. Reich, 61 N. J. Law, 635, 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727; Walsh v. Fitchburg R. Co., 145 N. Y. 301, 39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615; Paolino

41

office, or in a similar business,38 or who goes upon premises adjoining her own to seek her children, who are playing there.39 So is a fireman who enters in case of fire.** Further illustrations are given in the note. It is the fact that the entry is made by the sufferance of the owner, express or implied, which distinguishes the licensee from the trespasser. It is the fact that the licensee has entered for his own purpose that marks the difference between him and the invited person. Hence it seems better to say that a social guest, though present at the invitation of the owner, is to be treated as a licensee, since he enjoys gratuitous hospitality. But it is otherwise where the question arises be

42

v. McKendall, 24 R. I. 432, 53 Atl. 268, 60 L. R. A. 133, 96 Am. St. Rep. 736.

38 Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463. 39 Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594.

40 Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 Pac. 203, 30 L. R. A. (N. S.) 60, 21 Ann. Cas. 492; Woodruff v. Bowen, 136 Ind. 431, 34 N. E. 1113, 22 L. R. A. 198; Eckes v. Stetler, 98 App. Div. 76, 90 N. Y. Supp. 473; Beehler v. Daniels Cornell & Co., 18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790.

41 Dixon v. Swift, 98 Me. 207, 56 Atl. 761; Benson v. Baltimore Traction Co., 77 Md. 535, 26 Atl. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436; Norris v. Hugh Nawn Contracting Co., 206 Mass. 58, 91 N. E. 886, 31 L. R. A. (N. S.) 623, 19 Ann. Cas. 424; Schiffer v. W. N. Sauer Co., 238 Pa. 550, 86 Atl. 479; Larmore v. Crown Point Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718; Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800.

42 Cf. Bigelow on Torts (8th Ed.) 160, 161; Beven on Negligence, pp. 31, 449, 450. In Southcote v. Stanley, 1 Hurl. & N. 217, Pollock, C. B., said that the guest was in a position analogous to that of a servant. For the time being he is a member of the establishment. In Barman v. Spencer (Ind. 1898) 49 N. E. 9, 44 L. R. A. 815, the host was held responsible to the guest for "gross negligence." Cf. Converse v. Walker, 30 Hun (N. Y.) 596. In Davis v. Central Congregational Soc. of Jamaica Plain, 129 Mass. 367, 37 Am. Rep. 368, where one attending a religious conference was held an invitee, it was said: "The application of the rule on which the defendant's liability depends is not affected by the consideration that this is a religious society and that the plaintiff came solely for her own benefit or gratification. It makes no difference that no pecuniary profit or other benefit was received or expected by the society. The fact that the plaintiff comes by invitation is enough to impose on the defendant

tween the guest of a tenant and the landlord, having control of a defective portion of the premises used in connection with the part leased, for here liability grows out of the contract of hiring.43 Now the licensee, like the trespasser, enters upon the premises at his own risk. The owner or occupant must, of course, refrain from willfully inflicting injury; but he owes no duty to see that the land is in a safe condition.** He must not, however, knowingly allow the licensee to encounter a hidden peril, if there is a reasonable opportunity to give warning. For instance, where defendant had constructed a bridge on his own premises for his own use, which was also used by the public, with his knowledge, he was not responsible to one who was injured because the bridge was out of repair. But he would be liable where he knew of the defective condition of the structure and saw the plaintiff about to enter thereon, but failed to warn him. An

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45

46

the duty which lies at the foundation of this liability; and that, too, although the defendant, in giving the invitation, was actuated only by motives of friendship and Christian charity." It is difficult to reconcile this case with the general doctrine. The quoted statement, it is submitted, is broader than the facts warranted, for it would seem that the occupant of premises, who issues a call to attend a conference, celebration, or similar gathering there, is looking for some benefit. If, however, his motive be purely benevolent, there would appear no reason why he should be held to any greater liability than that of a licensor.

43 "The contract impliedly included, not only the tenant himself. It included all persons who, in connection with the use of the tenement by the tenant, might properly pass over the platform under the express authority of the tenant and in his right." Coupe v. Platt, 172 Mass. 458, 459, 52 N. E. 526, 70 Am. St. Rep. 293. Cf. Brady v. Valentine, 3 Misc. Rep. 20, 21 N. Y. Supp. 776, affirmed 144 N. Y. 698, 39 N. E. 856.

44 Indian Refining Co. v. Mobley, 134 Ky. 822, 121 S. W. 657, 24 L. R. A. (N. S.) 497; Graham v. Pocasset Mfg. Co., 220 Mass. 195, 107 N. E. 920; Taylor v. Haddonfield & C. Turnpike Co., 65 N. J. Law, 102, 46 Atl. 707; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 97 N. E. 497, 38 L. R. A. (N. S.) 395, Ann. Cas. 1913C, 745; Monroe v. Atlantic Coast Line R. Co., 151 N. C. 374, 66 S. E. 315, 27 L. R. A. (N. S.) 193; Beehler v. Daniels, Cornell & Co., 18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790.

45 Cusick v. Adams, 115 N. Y. 55, 21 N. E. 673, 12 Am. St. Rep. 772. 46 Campbell v. Boyd, 88 N. C. 129, 43 Am. Rep. 740. This case was