Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 57 of 124)
Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 57 of 124)
Font size
QR-code for this ebook

safe object placed thereon. They are bound to know that young chil-
dren are likely to be at play on the streets, and to make use of objects
attractive for their exploits and games, and this responsibility has
been held to attach in some cases where the offensive object was
wholly upon the property of the defendant, and wdiere the children
injured were trespassers, as in Hydraulic Works Company v. Orr,
83 Pa. 332, and Duffy v. Sable Iron Works, 210 Pa. 326. "Children,
wdierever they go, must be expected to act upon childish instincts
and impulses ; others, who are chargeable with a duty of care and
caution toward them, mu.'^t calculate upon this and take precautions
accordingly. If they leave exposed to the observation of children

*This case, though doubted in Hughes v. Macfie, 2 H. & C. 744 (1863),
and Mangan v. Attcrton, L. R. i Ex. 2.^9 (1866) — but see Cockburn, C. J.,
Clark V. Chambers, L. k. 3, Q. B. D. 327 (1878), p. 339 — is followed in Jezi'son
v. Gatti, 2 Times L. R. 381, 441 (1886), a bar was put up to protect an open
cellar abutting on the highway on which work was going on; the plaintiff
leaned on it to watch the work, it gave way. injuring him, and is expressly
approved in Harrold v. U'atney. L. R. (rSgS). 2 Q. B. 320, fence fell when
boy tried to climb it to join friends at play within.

Aeeord: IVesferfield v. Levis, 43 La. Ann. 63 (1891), boy injured in try-
ing to drive horse roller left unguarded in street in front of his house;
Krciner v. Straubuii'tller, 30 Pa. S. C. 609 (igoe") ; Cahill v. Stone & Co., 96
Pac. 84, Cal., 1908.

Contra: McGiiiness v. Butler. 159 I^Iass. 233 (1893). slab of marble propcd
almost upright on a sidewalk; Gay v. EI. Ry. Co.. 159 IMass. 238 (1893^ car
with defective brake left ungtiarded in public street; Holbrook v. Aldrich,
168 IMass. 15 (i897>. infant customer in a grocer's shop injured by coffee
grinder; Kaumeier v. City Ry. Co., 116 Mich. 306 (1898), hand car left, un-
braked and unguarded, on street. And see Rodgers v. Lees,, 140 Pa. 475,
(1891") but cf. Kreiner v. Strabmi'iUer, post. p. 222.


anything which would he tempting to them, and which they in their
immature judgment might naturally suppose they were at^Jiberty
to handle or play with, they should expect that liberty to be taken:"
Chief Justice Cooley, in Power v. Harlow, 57 Mich. 107. * * *
All of the cases agree that where the object is upon the highway
and is of such a character that it should have been reasonably an-
ticipated that it would be used by children in the course of their
play, and that owing to its position, form or condition it would be
dangerous to them when so engaged, the owner would be guilty of
negligence if he failed to guard against the contingency of accident.
This principle is recognized in Rodgers v. Lees, 140 Pa. 475, and
Guilmartin v. Philadelphia, 201 Pa. 518, upon which the appellant
relies. In the former case the child who was killed was a trespasser,
and engaged in an act which was obviously dangerous. The object
to which he clung was moving at the time, and his act was one w^hich
ordinary prudence might not have foreseen.^ In the latter case the
child was injured by a falling gate on which he had climbed. The
city was not required to anticipate dangers resulting from the im-
proper use of objects safe in themselves, and for the use for which
they are designed.- In the same case, however, it was said: "If
an object was in itself dangerous or might become dangerous if a
child chanced to set it in motion while playing with it, or by running
against it, there was a duty on the city to take such precaution as
was reasonable, under the circumstances, to prevent injury by it."
Marsh v. Giles, 211 Pa, 17, turned upon the point that the act of
the defendant in placing the stone against the pole was not the prox-
imate cause of the injury; that that was the immediate consequence
of the intervening act of the plaintiff's companion in making a use
of the stone not likely to have been anticipated. The injury could
as well have occurred if the plaintiff's companion had used a billet
of wood or a stone picked up from the ground. The question pre-
sented to the referee at the trial below was whether the action of
the children in playing upon the pile of barrels was one of the things
which might have been expected to occur, and against the disastrous
result of which the defendant was bound to guard. This question
was one of fact. The defendant was not authorized to use the side-

^In Rodgers v. Lees (1891), a cable with a ball and hook attached, used
by the defendants to hoist material into their mill, hung over a public but
little used street. Through some oversight of defendant's employes the
machinery was not stopped while they were away at dinner and in conse-
quence the ball continued to go up and down. The infant plaintiff being
lawfully on the street and seeing the ball, said to a companion, "I bet I can
go up higher on the ball than you" and against his comrade's warning got
upon the ball, but losing courage, as it went up, let go and fell. It was held
that the defendant owes "no duty of protection to passing children against
the consequences of their reckless acts in rushing into so manifest a dan-
ger;" there being no room for the argument "that the boy was ignorant
of the effect of his act" since "he got upon the ball for the express purpose
of riding upon it'' and in order to impress upon his comrade his contempt of

^ But see, Birge v. Gardiner, 19 Conn. 507, 1849, and Harold v. Watney,
L. R. 1898, 2 Q. B. 320, contra.

The Court evidently is speaking of Rodgers v. Lees, supra.


walk as a place for the storage of barrels. They were not there tem-
porarily in the course of transfer from the street to the brewery, or V1 -
from the brewery to the street. The same barrels did not remain I «
all the time, but the evidence tends to show that barrels of the
same character were kept there much of the time in the prosecution
of the defendant's business. This use of the street being unlawful,
he has not the excuse that he was in the exercise of his own right
in so obstructing the highway. The plaintiff was scarcely more than
five years of age. He had slipped away from the home of his aunt,
who had temporary care of him, while she was engaged in the house
and was injured within a very short time thereafter. The playful
instincts of himself and his companions took them to the place, and
it does not seem improbable that they should have done just what
was done. The barrels were empty, were not in any way secured,
and were so arranged in tiers as to invite the children to the enters-
prise in which they engaged. The referee found that the pile
of barrels was of such a character that the defendant should have
anticipated that children would climb upon them in their play, and_
that the manner of piling was such as to render it dangerous _to
children who would be tempted to play thereon. This finding is
warranted by the evidence and is conclusive against the defendant.
It cannot be declared as a matter of law that children of such tender
age would not be tempted in their plays to climb to the top of the
pile, nor is there anything in the facts to indicate that they must have
seen that such action was manifestly dangerous. Some situations
might be obviously dangerous to persons of their years, as the track
of a railroad when a train is at hand, or the middle of a highway
when a rapidly moving team is closely approaching, or the ascending
ball in Marsh v. Giles,^ but we have nothing of that kind here. It

^Accord: Brinkley Car Co. v. Cooper, 70 Ark. 331 (1901), "If the pool of
water was open, and not concealed, and the boy had notice it was hot, the
company could reasonably suppose that a boy six years of age would not
intentionally or carelessly put his foot into water known by him to be hot,"
p. 336; Stiefsohn v. Brooke & Co., 5 T. L. R. 684. Eng. (1889). and cj. Jezcson
V. Gaiti, 2 T. L. R. 441, Eng. (1886), Esher, M. R. ; George v. Los Angeles Ry.
Co., 126 Cal. 357 (1899), "if the element of danger connected with these trail-
ers (cars left in street) was not hidden or concealed but was open to the
observation and could have been comprclicnded by a boy of the plaintiff's
age with average intelligence, * * * ^y^^ plaintiff cannot recover," p. 365.
Compare, Barthold v. Fliila., 154 Pa. 109 (1893), infant falling into open well
in a city park, and Le Grand v. Wilkesbarre Traction Co., 10 Pa. S. C. 12
(1899), boy on picnic drowned while swimming in open pond in trolley park.

In Edgington v. R. R., 116 Iowa, 410 (1902), Weaver, ]., says, p. 436,
"Hoodlums find no immunity or protection in the law as we interpret it.
* * * They know the difference between right and wrong, and under-
stand the meaning of trespass as well as the property owner. Ordinarily,
they are at no loss to care for themselves. They disregard property right
from mere love of mischief, and take risks out of mere bravado, or in con-
scious defiance of moral and legal restraint. When a boy is thus injured,
we may pity his folly, but justly say, as the law says, that, having intelli-
gently assumed the risk, he ought not to recover damages. This has no
application whatever to infants who are yet without judgment or discretion;"
Rodgcrs v. l-ccs, cited in principal case, accord: but see, contra. Price v.
Atchison JVater Co., 58 Kan. 551 (1897), where though the boy was a tres-
passer, the condition one necessary to the owner's use of its land, the danger


was not unlawful for the children to play upon the street, and it
cannot be said that they had no business there. The owner of the
premises owed them the duty to provide against the consequences
of their inexperience and youthful inclination to play upon his
property placed on the sidewalk in a position which might attract
them. The referee arrived at a satisfactory conclusion on the evi-
dence presented, and the facts being established the law declares the

The judgment is affirmed.*

Supreme Court of Pennsylvania, 1904. 210 Pa. 326.

Opinion by ^Ir. Justice Thompson :

The accident which occasioned the present action for damages
for the death of appellees' son, some five or six years of age, was
caused by the child falling into a vat constructed by the appellant
in proximity to Thirteenth street in the city of Pittsburg and used
by it in connection with its iron mill. It was located about eleven
feet distant from the line of the street in question and was eleven
feet in length and nearly eight feet in width and was sunk into the
ground about twelve inches. The kettle annexed to it was used to
melt tar and grease which ran into it and when cold this material
was cut into pieces and used in the mill of appellant. Its top was
a few inches above the surface of the ground surrounding it and
was not protected. The kettle was near the line of the street and
the vat beyond it making its distance from the street as above stated.

Appellant's negligence it was contended by appellees arose from
placing a dangerous and unprotected vat in such close proximity
to the street, that their son fell into it and met with the accident
which resulted in his death. The determination of such negligence
depends upon the resolution of the questions whether the vat as
constructed, filled with boiling materials and unprotected, with but
three or four inches above the level of the surface of the ground
surrounding it and located in close proximity to the street made
it dangerous, and whether the space between it and the street was
such that a child would be likely to stroll there and become exposed
to peril. These questions were for the jury and were properly left
to it by the learned trial judge, and the jury by its verdict resolved
them against the appellant.

open, the boy warned by his friends and taking a known risk merely out
of bravado, he was allowed to recover.

So while mere lack of care will not bar recovery by one, adult or in-
fant, injured by a wild beast kept by defendant, even an infant cannot
recover if with full knowledge of the facts he deHberately puts himself
within reach of such animal, Molloy v. Starin, 113 N. Y. App. Div. 852

* Accord: Mullen v. Wilkesharre G. & E. Co., 38 Pa. S. C. 3 (1909),
boy in climbing a tree in highway came in contact with uninsulated electric
light wire.


The measure of duty under such circumstances is clearly de-
fined in Rachmel v. Clark, 205 Pa. 314, by Mr. Justice Mestkez.xt:

"If it be conceded, however, that the ground between the fac-
tory and the building line was not paved yet it was open and prac-
tically a part of the foot walk of the street. The defendants, there-
fore, having regard to these circumstances, owed a duty to the pub-
lic to exercise reasonable care to keep it safe so that those using
the adjacent highway would not be exposed to danger. As said by
Chief Justice Agm:w in Hydraulic Works Company v. Orr, 83 Pa.
:^2)~'- 'Duties arise out of circumstances. Hence, where the owner
has reason to apprehend danger, owing to the peculiar situation of
his property and its openness to accident, the rule will vary. The
(|uestion then becomes one for a jury, to be determined upon all its
facts of the probability of danger and the grossness of the act of
imputed negligence.' The owners of the premises are required in
such cases to anticipate that children as well as adults may use
the highway and thereby be exposed to any unsafe objects placed
upon the premises."

The appellant's principal contention was that the child was a tres-
passer and that appellees therefore were not entitled to recover. A sim-
dar quchtion was involved in Hydraulic Works Company v. Orr, 83
Pa. T,2)^, and in the opinion there, Mr. Chief Justice Agnew, said : "The
gate and passage way opened out upon a public and much frequented
street, where persons were passing and children playing. Unlike
an ordinary private alley, this passage was often open, and therefore
liable to the incursions of children and even grown persons, from
thoughtlessness, accident or curiosity. Now the inclined way which
did the injury was a dangerous trap. It was a heavy platform
weighing 800 or 900 pounds, attached by hinges within eighteen or
twenty inches of the wall, and when lowered it fell across the
cartway. When not lowered it stood upright against the wall, lean-
ing so little beyond the center of gravity that a jar or a slight pull
would cause it to fall forward. It fell in this instance, caught four
children beneath it, one had his neck broken, another his hands
mashed and two escaped under the cavity. It was held up by no
hook or other fastening, but merely rested by its own slight weight
beyond the equipoise, ready therefore to catch children, like mice,
beneath a dead fall. \\'hen wagons passed it was often held up
by hand, and a witness saw it fall against the wheels. Now can it
be righteously said that the owner of such a dangerous trap, held
by no fastening, so liable to drop, so near a public thoroughfare,
so often open and exposed to the entries of persons on business,
by accident or from curiosity,^ owes no duty to those who will be
probably there?" * * *

The learned trial judge in his instructions submitted the ques-
tion of appellees' negligence to the jury for its determination, and
there was no error in his instructions in this regard.

The judgment is affirmed.

^ "The open gate, sign or no sign, was an implied invitation to children
to enter into an open alley," Orlady, J., Fcclian v. Dobso)i. 10 Pa. S. C. 6
(1899), p. II. See R. R. v. Bockovcn, 53 Kan. 279 (1804), P- 289.


Mr. Chief Justice 3,Iitciiell, dissenting.

On the facts of this case I woukl reach a different conclusion
from that of the court below and the majority here. But the danger-
ous construction here was not far from the public street and appears
to have been easily accessible from it. The case is therefore a close
one and the submission of it to the jury might be sustained on its
facts without great stretch of principle. But I most earnestly dis-
sent from the effort to recognize the case of Hydraulic Works Co.
V. Orr, 83 Pa. 332. The opinion of the majority refers to it as hav-
ing "become like a shuttlecock in battledore to be pitched up and
down." The reason is not far to seek. The case was a departure
from settled principles, was wrongly decided, and has never com-
manded the general approval of professional opinion either at the
bar or on the bench. In the very next subsequent case that arose
in this court, Gramlich v. Wurst, 86 Pa. 74, it was practically over-
ruled, for though Justice Woodward makes an effort to distinguish
the cases, yet the distinction is merely in the details of fact and not
in principle, and when he says that "no cause was ever more justly
decided" he does not say more correctly or more legally decided, and
his dictum is manifestly based on humane sentiment rather than
on settled law. The two cases are absolutely irreconcilable in prin-
ciple, and Gramlich v. Wurst, restored the ancient and established
law. What little was left of authority in Hydraulic Works Co. v.
Orr, was practically ended by Gillespie v. McGowan, 100 Pa. 144,
though there again the mistake was made of setting up an unsub-
stantial distinction, instead of overruling the case absolutely. * * *

The settled common-law rule, followed in Gramlich v. Wurst,
that a land-owner is not liable for injury to a trespasser from a
ditch or an open quarry or other obstruction on his own land unless
it is so near the public highway that a traveler lawfully using the
highway may accidentally or without intended trespass fall into it,
is the only safe and permanent guide. The fact that the person
injured is a child is immaterial because under the circumstances
there was no negligence of the defendant.^

^Accord: Rachmel v. Clark, 205 Pa. 314 (1903), defendant left slabs of
slate standing almost upright against the walls of its building a few feet
from the street line, the intervening space being paved and used as part of
the sidewalk. The plaintiff, a boy, in writing upon one of the slabs, knocked
it over upon himself; Birge v. Gardiner, 19 Conn. 507 (1849), boys mjured
while meddling with ruinous gate maintained on or near the line of a public
highway, see Fitzmaurice v. Conn. Ry., etc., Co., 78 Conn. 406 (1905), p. 409;
IVhirley v. Whitcman, i Head. 610 (Tenn., 1858), dangerous machine ex-
posed substantially as in Rachmel v. Clark, supra; Mnllaney v. S pence, 15
Abb. Pr. R. N. S. 319 (N. Y., 1874), elevator operated in shaft open to
street and within a foot of it, but see Stiefsohn v. Brooke & Co., 5 T. L. R.
684 (Eng., 1889), where it was held that, under somewhat similar facts, the
danger was obvious even to the injured child who it was also said was a
conscious deliberate trespasser. The English cases appear to hold that if an
owner maintain a structure adjacent to the higliway in such condition as to
be a danger to travel lawfully carried on, he is liable to an infant who med-
dles with it for some purpose of his own not incidental to the proper use of
the highway as such — if the risk of so doing is not obvious to one of his
tender years, Jezvson v. Gatii and Harrold v. Watney, note to Lynch v. Nur-
din, ante, p. 397.

A land owner is equally liable if he creates or maintains a dangorotTj



Supreme Court of Michigan, 1901. 128 Mich. 463.

HoOKKR. J. Tlic Bice Manufacturing Company is an existing
corporation, which formerly carried on a manufacturing business
at Marquette. Its plant has been shut down for some years. Among
other structures, it owned a small pump-house, located upon ground
owned bv a railroad company, under an arrangement between them.
In the house was a small overshot water-wheel. The plaintifY. a
girl between 12 and 13 years of age, was in the habit of passing
this pump-house on the way to school, with her brothers and sisters ;
going across lots through the field, because it was nearer. For
some time previous to the time of the accident through which plain-
tiff received her injury, a hole existed in the stone wall of the house
inclosing the wheel, through which children went to play on
the wheel. What evidence there is on the subject justifies the in-
ference that it was made by children, and from time to time
enlarged, by tearing out the stone of which the wall was built, for
the purpose of entry to the wheel. On the day in question, the
brothers of plaintifTf. on their way from school, crawded through
this hole, and, mounting the wheel, w'ere able by their weight to
turn the wdieel part w^ay round and back. A younger sister, aged
8 years, got caught between the wdieel and the wheel-pit. The plain-
tiff heard her screams, and went through the hole to her succor,
and aided in rescuing her, and was herself injured. Suit was
■brought against the corporation and two _o f it^ dirp(^t^^^ and the
negligence alleged was m permitting the wheel to remain there,
accessible tcTchildren. The court directed a verdict in favor of the
drfectorsr ancf aillowed the jury to determine the liability of the
corporation, against which they rendered a verdict for $5,000. From
a judgment in favor of the directors, the plaintiff" has appealed. The
only error assigned is the direction to return a verdict in favor of
the directors.

The testimony shows that the buildings of the Bice Manu-
facturing Company were upon land owned by the railroad company,
and that such land, together wdth the railroad, consisting of several
tracks, was fenced. The plaintiff' w^as not shown to have been in-
vited upon the premises, but there is testimony from which the jury
might reasonably conclude that children were in the habit of cross-
ing the land of the defendant company and the railroad, and that
neither company took steps to prevent it, further than to keep up
the fences. It is contended that this amounted to an invitation or

condition close to a path or near to a place which the plaintiff has the right
to use as a business guest or a permissive licensee, Hcudcrsoii v. Coitt. Rcf.
Co., 219 Pa. 384 (1908).

See also Potccrs v. Harlow: McDonald v. R. R.. and Cobb, J., in Ether-
edge V. R. R., note 8 to Ryan v. Toivar. post. p. 238.

In Grandich v. ]Vuyst, 86 Pa. 74 (1878), the much contraverted case of
Hydraulic Co. v. Orr, 83 Pa. 332 (1877), is said, p. 80, to be "the case sug-
gested by Baron Martin, in Hardcastle v. The South Yorkshire Raih\.'ay
Company, of a dangerous appliance adjoining a public way."


license, but we think not. Mere toleration of a trespass does not
alone constitute a license even, certainly not an invitation, i Thomp.
Xeg. (2d. Ed.) § 1050, and note. The pedestrians who insist upon
risking their lives by making a footpath of a railroad track, and
others who habitually shorten distances by making footpaths across
the corners of village lots, are none the less trespassers because the
owners do not choose to resent such intrusion, and be to the expense
and trouble of taking effective measures to prevent it. There is
no more lawless class than children, and none more annoyingly
resent an attempt to prevent their trespasses. The average citizen
has learned that the surest way to be overrun by children is to give
them to understand that their presence is distasteful. The conse-
quence is that they roam at will over private premises, and, as a
rule, this is tolerated so long as no damage is done. The remedy
which the law aft'ords for the trifling trespasses of children is inade-
quate. No one ever thinks of suing them, and to attempt to remove
a crowd of boys from private premises by gently laying on of hands,
and using no more force than necessary to put them off, would be
a roaring farce, with all honors to the juveniles. For a corporation
with an empty treasury, and overwhelmed with debt, to be required
to be to the expense of preventing children from going across its
lots to school, lest it be said that it invited and licensed them to do
so, is to our minds an unreasonable proposition. As to this question
of license or invitation, there is no difference between children and
adults. * * *

It is a general and nearly uniform rule that there is no duty
imposed upon the owner of premises to keep them in a suitable con-
dition for those who come there for their own convenience merely,

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 57 of 124)