by the federal courts in Railroad Co. v. Stout, 17 65 71 Several states have repudiated the so-called attractive nuisance doctrine, it being held that railway companies are under no obligation or duty to protect or guard against injury to children without respect to age; these decisions place children of whatsoever age upon an equality with adults, and we think utterly ignore the natural instincts of all men for the welfare of children of such age that they cannot appreciate danger. Furthermore, such a rule of exemp tion is not conducive to carefulness on the part of the servants and agents of railway companies; it would seem far better to adopt a rule that railroad 64 Barrett v. Southern Pac. Co., 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666, 48 Am. & Eng. R. Cas. 532 (a child of eight years of age injured by turntable; it should be protected by inclosure or left in charge of some one); Callahan v. Eel River etc. R. Co., 92 Cal. 89, 28 Pac. 104. 65 Ferguson v. Columbus etc. R. R. Co., 77 Ga. 102. 66 Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203, in which case the boy injured was twelve years old. The court said: "Everybody knows that by nature and by instinct boys love to ride, and love to move on other means than on their own locomotion, etc. . . . . No person has a right to leave dangerous machinery calculated to attract and entice boys to it, there to be injured, unless he first takes steps to guard against all dangers; . . . . it is a violation of that emphatic maxim, 'Sic utere tuo ut alienum non laedas.'" .... 67 Keefe v. Milwaukee etc. Ry. Co., 21 Minn. 207, 18 Am. Rep. 393 (child seven years of age). 68 Koons v. St. Louis etc. R. R. Co., 5 Mo. 592; and Nagle v. Missouri Pac. Ry. Co., 75 Mo. 653, 42 Am. Rep. 418. 69 Bridger v. Asheville etc. R. R. Co., 25 S. C. 24. 70 Evansich v. Gulf etc. Ry. Co., 57 Tex. 126, 44 Am. Rep. 586; Gulf etc. Ry. Co. v. Styron, 66 Tex. 421, 1 S. W. 161, and other cases in this state. 71 Ilwaca Ry. etc. Co. v. Heidrich, 1 Wash. 446, 22 Am. St. Rep. 169, 25 Pac. 335. companies were to keep such dangerous agencies locked as they do their switches, so that none but servants who carry a key could disturb them. The dissenting decisions found their conclusions upon the idea that it is unreasonable to construe acts of railway companies as tantamount to an invitation which are not so in fact or in reason, so that the rule governing the liability of persons for injuries to those who come upon premises by invitation will govern. Thus far, as has already been intimated in this section, there is reason in the cases sustaining the rule of nonliability. These decisions are found in Massachusetts, in a case where a child eleven years of age was injured;72 in New Hampshire, in a case where a child seven years of age was injured by a turntable insecurely guarded and wrongfully set in motion by older boys;73 in New Jersey where a child of tender years was injured, it being held that such child upon entering the premises assumed all dangers incident to the condition thereof;74 in New York,75 and in Tennessee.76 § 327. Same Continued-Other Dangerous Things and Places.-The rule of liability on the part of owners of premises upon which attractive nuisances are 72 Daniels v. New York etc. R. R. Co., 154 Mass. 349, 26 Am. St. Rep. 253, 28 N. E. 283. 73 Frost v. Eastern R. R. Co., 64 N. H. 220, 10 Am. St. Rep. 396, 9 Atl. 790. 74 Delaware etc. R. R. Co. v. Reich, 61 N. J. L. 635, 68 Am. St. Rep. 727, 40 Atl. 682 (the age of the child is not disclosed; the two lines of the cases are considered and the liability in such cases criticised). See, also, Turess v. New York etc. Ry. Co., 61 N. J. L. 314, 40 Atl. 614. 75 Walsh v. Fitchburg Ry. Co., 145 N. Y. 301, 45 Am. St. Rep. 615, 39 N. E. 1068 (a child five years old); McAlpin v. Powell, 70 N. Y. 126, 26 Am. Rep. 555. 76 Bates v. Nashville etc. Ry. Co., 90 Tenn. 36, 25 Am. St. Rep. 665, 15 S. W. 1069. maintained has been applied in California, where a privy vault was left uncovered and unguarded close to a traveled street, a child three years old falling therein; in Connecticut, where a gate was set up on land by the side of a lane through which children were in the habit of passing, whereby a child six or seven years of age was injured; 7% in Illinois, where an owner suffered a dangerous pond of water to exist upon his premises near a public street;79 in Kansas, where an owner maintained upon his premises a reservoir filled with water to which children were attracted for fishing and other sports, which was well known to the landlord, who took no means to warn or exclude them, whereby a child eleven years of age was drowned; 80 in Indiana, where a land owner had used a vacant lot for piling up a mound of ashes which was used by children for a playground, the mound of ashes having been removed and replaced by burning embers; 81 in Kentucky, where lumber was piled in a negligent manner, by reason whereof a small child while playing near it was killed; 82 in Missouri, the doctrine was recognized, but was not applied in a case where an owner of a lot in a city failed to fence the same, by reason whereof a boy nine years of age entered thereon and while bathing in a pond upon the lot was drowned; 83 in Nebraska, 77 Malloy v. Hibernia Sav. etc. Soc. (Cal.), 21 Pac. 525. 78 Birge v. Gardiner, 19 Conn. 507, 50 Am. Dec. 261. 79 Pekin v. McMahon, 154 Ill. 141, 45 Am. St. Rep. 114, 39 N. E. 484 (the owner was held bound to use reasonable care to protect children from injury when coming on such premises). 80 Price v. Atchison Water Co., 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450. 81 Penso v. McCormick, 125 Ind. 116, 21 Am. St. Rep. 211, 25 N. E. 156. 82 Branson v. Labrot, 81 Ky. 638, 50 Am. Rep. 193. 83 Moran v. Pullman Palace Car Co., 134 Mo. 641, 56 Am. St. Rep. 543, 36 S. W. 659 (an owner of a building in process of con where an owner of a city lot had negligently permitted surface water to accumulate thereon which created a dangerous pond near the public schools, by reason whereof a child of tender years was drowned; 84 in Tennessee, where a proprietor of a factory left two cogwheels geared together outside of his building, very close to the street, exposed and unprotected; 85 and in Wisconsin, where the owner left a deep and dangerous excavation filled with water exposed and unguarded, a child being drowned therein.86 In Minnesota, the doctrine of liability in such cases was repudiated in a case where there is upon the premises of an owner a dangerous pond, it being held that the owner was not bound to fence or otherwise guard it so as to prevent injury to children coming thereon without right or invitation, express or implied, although they are induced to do so by the alluring attractiveness of such excavation or pond.87 § 328. Other Cases of Nonliability. It has been held that an owner of land is not liable for the drowning of a child eleven years old, a bright, active boy, in a pond of water on his premises adjacent to a struction held not liable for injuries to a child playing thereat without his knowledge, and without any inducement or invitation); Witte v. Stifel, 126 Mo. 295, 47 Am. St. Rep. 668, 28 S. W. 891. 84 Richards v. Connell, 45 Neb. 467, 63 N. W. 915. 85 Whirley v. Whiteman, 1 Head, 610. In Cooper v. Overton, 102 Tenn. 211, 73 Am. St. Rep. 864, 52 S. W. 183, it is said that an owner of dangerous premises may only be held to injury to children therefrom, unless they are induced to enter upon the land by something unusual and attractive placed upon it by the owner with his knowledge, to remain there. 86 Klix v. Nieman, 68 Wis. 273, 60 Am. Rep. 854, 32 N. W. 223. 87 Stendal v. Boyd, 73 Minn. 53, 72 Am. St. Rep. 597, 75 N. W. Torts, Vol. I-42 public highway, which was created by a city while grading a street, the child going thereon without invitation;88 nor for the death of a child who while fishing in a well in an old brickyard, falls in it and is drowned;89 nor for an injury to one who while walking on a dark, rainy night across a lot upon which a storehouse has been burned, falls in an uncovered cistern left on the vacant lot which the public uses in passing from street to street; 90 nor is a manufacturer liable to trespassing children upon the open premises of a factory where typesetting machines are manufactured, by the sudden discharge of water and steam from a pipe connected with the engine, the presence of the children not being known; 91 nor is a railway company liable for an injury to children who are attracted upon the premises of the company by fire set to rubbish on its right of way for the purpose of getting rid of it;92 nor is a railroad company liable for injury to children who go upon its premises and loosen cars standing upon its tracks." 93 § 329. Ordinance Requiring Excavations to be Filled or Fenced-Effect upon Liability. It has been expressly decided in one state that, where an ordinance is passed by a municipality which requires all owners of property having thereon depressions or excavations to be filled or fenced, a failure to observe 88 Peters v. Bowman, 115 Cal. 345, 56 Am. St. Rep. 106, 47 Pac. 113, 598. 89 Gillispie v. McGowen, 100 Pa. St. 144, 45 Am. Rep. 365. 90 Lepnick v. Gaddis, 72 Miss. 200, 48 Am. St. Rep. 547, 16 South. 213. 91 Mergenthaler v. Kirby, 79 Md. 182, 47 Am. St. Rep. 371, 28 Atl. 1065. 92 Erickson v. Great Northern Ry. Co., 82 Minn. 60, 83 Am. St. Rep. 410, 84 N. W. 462. 93 Haesley v. Wynona etc. R. R. Co., 46 Minn. 233, 24 Am. St. Rep. 220, 48 N. W. 1023. |