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without the invitation of the owner. The origin of the alleged
modern doctrine may be said to practically rest upon what are
called the "Turntable Cases," the first of which was the case of
Railroad Co. v. Stout, 17 Wall. 657. The opinion was written by
]\Ir. Justice Hunt in the year 1873. A child of 6 years of age was hurt
while playing with others upon a turntable, by getting its foot caught
between the ends of the rails. The turntable was in a remote place,
not far from a public highway, on ground belonging to the com-
pany. The trial court charged the jury —

"That, to maintain the action, it must appear * * * that
it was a dangerous machine, — one which, if unguarded or unlocked,
would be likely to cause injury to children ; * * * that the jury
were to consider whether, situated as it was, as the defendant's prop-
erty, in a small town, somewhat remote from habitations, there was
negligence in not anticipating that injury might occur if it was left
unlocked or unguarded; that if they did not have reason to antici-
pate that children would be likely to resort to it, or that they would
be likely to be injured if they did resort to it, then there was no

The only question in the case was whether the child was a
trespasser, and for that reason could not recover. This case prac-
tically laid down the rule "that a railroad company might be liable
to trespassers for injuries resulting from its failure to construct,
locate, manage, and maintain its turntable with that care and atten



tion to prevent accidents which prudent and careful men onHnarily
bestow ;" and it held that while "the evidence was not strong, and
the negligence was slight," the court was "not able to say that there
was not evidence sufficient to justify the verdict," and that the
charge was sound.

Four cases are cited as precedents for the proposition that a
trespasser is entitled to demand from a landowner ordinary care
in the use. condition, and maintenance of structures upon his prem-
ises. The first was Lynch v. Xiirdin, i Adol. & E. ( X. S.) 29.^ * * *

It is noticeable that even the Lynch Case did not involve a tres-
pass upon defendant's close, though it did perhaps involve a trespass
to personal property.

The next case cited as authority in Railroad Co. v. Stout is Birge
V. Gardiner, 19 Conn. 507. There a child was injured by the fall of
a gate on the land of the defendant on or near the line of a private
alley leading from a public highway back to several dwellings, in one
of which tlie i)laintiff lived, and i}i zchich alley it had a right to be.
The court refused to consider the c|uestion, and intimated that it
made no difiference because the plaintifif was not faultless ; citing
Lynch v. Nurdin. In Daley v. Railroad Co., 26 Conn. 591, a heavy
train of cars coming around a curve killed a child less than 3 years
old, playing on the track. The court followed the case of Birge v.
Gardiner. The last case cited was Bird v. Holbrook, 4 Ring.
628. This was an action brought by a trespasser who was shot by
a spring gun set for the purpose, and is clearly not in point. There
was a wanton, intentional act, intended to punish trespassing w'ith
death, meriting punishment as an attempt at homicide. It is chiefly
valuable in this connection as showing the difficulty found in the
attempt to support Railroad Co. v. Stout by precedents.

The enunciation by the highest tribunal in the country of the
rule that a landowner owes a duty of care towards a trespasser was
sure to be followed by other courts. Among the earliest of these
is Keffe v. Raikvay Co., 21 Minn. 207. This was a
turntable case, and the trespassing child 7 years of age. The
court there discovers a distinction between a voluntary trespass and
one by a person without judgment, who is allured upon premises
by his natural inclination, and meddles with things whose uses and
dangers he is unable to comprehend. It says, "What an express
invitation would be to an adult, the temptation of an attractive play-
thing is to a child of tender years." Therefore this was an invita-
tion, and the child lice^tsed. Having by this reasoning found the
child lawfully on the premises, it proceeds to treat the turntable as
a trap, and compares it with a case when one sets traps baited with
tainted meat, to allure his neighbors' dogs, which he intends to
catch, or sets a spring gim, with the formed design of taking a tres-
passer's life. This case was followed by another case in the same
court. O'M alley v. Railway Co.. 43 Minn, 289 (45 N. W. 440V
This was also a turntable case, and the child 6 years of age.

* The Court's discussion of Lynch v. Nurdin and the later conflicting
cases of Mangan v. Attcrfon. L. R. i Ex. 239. and Hughes v. Macfic. 2 H.
& C. 744 (see Cockburn, C. J., L. R. 3, Q. B. D. 339), is omitted.


In 1881 the supreme court of Nebraska approved the case of
Railroad Co. v. Stunt, although it reversed the case before it, and,
as was done in the Stout Case, recognized the fact that the cases
were not harmonious. Atchison, etc., R. Co. v. Bailex, 11 Neb. 332

(9N. W. 50).

In Kansas the doctrine was appHed in a case of a turntable
located in the midst of an open prairie, and a boy 12 years of age.
In discussing the tendencies of boys, the court said :

"Everybody knows that, by nature and by instinct, boys love to
ride, and love to move by other means than their own locomotion.-
They will cling to the hind ends of moving wagons, ride upon
swings and swinging gates, slide upon cellar doors and the rails of
staircases, pull sleds up hill in order to ride down, etc. * * *
Now, everybody, knowing the nature and the instincts common to ,
all boys, must act accordingly. No person has a right to leave, even
on his own land, dangerous machinery, calculated to attract and
entice boys to it, there to be injured, unless he first take proper steps
to guard against all danger;^ and any person who thus does leave
dangerous machinery exposed, without first providing against all
danger, is guilty of negligence. * * * it is true that the boys
in such cases are technically trespassers. But even trespassers have
rights which cannot be ignored, as numerous cases which we might
cite would show." * * *

^See Pekin v. McMahon, 154 111. 141 (1895), pp. 150, 151, a turn-table,
when in motion, is " attractive to children by reason of their love of motion
'by other means than their own locomotion.' * * * The love of motion,
which attracts a child to play upon a revolving turn-table, will also attract
him to experiment with a floating plank or log which he finds in a pond
within his easy reach." And see Cent. Branch Union Pac. R. R. v. Henigh,
23 Kan. 347 (1880), the cars were not of "that alluring character to entice
boys to play upon them; for when unfastened they would move only a few
feet and then stop," pp. 358-359.

No liability exists where there is nothing in the lot attractive to children
beyond its mere availability, as an open lot, for use as a playground. Am.
Adv. Co. v. Flannigan, 100 111. App. 452 (1902).

'Two Kansas cases carry liability to infant trespassers to its extreme
limit. Price v. Atchison Water Co., 58 Kan. 551 (1897), and Cons. Elec. Co.
v. Healy, 65 Kan. 798 (1902).

In Price's case the Water Co. had erected a barbed wire fence around
their reservoir but the watchman permitted boys to climb it, the plaintiff's
decedent, aged eleven, going thereto with some friends to play and fish
attempted, against the warnings of his comrades, to cross the reservoir upon
an "apron" or platform of lumber, a necessary part of the reservoir, fell in
and was drowned ; it was held that "knowing the fence to be ineffective either
as a barrier or warning, it was the duty of the Company to expel the in-
truders or adopt other measures to avoid accident," p. 557; but see Buch v.
Amory Co., 69 N. H. 257 (1897), ante, p. 299, contra. In Healey's case an
electric light Company was held liable to a boy injured while walking on
the ledge outside of the balustrade of a city bridge, as boys often did, by
contact with an uninsulated wire laid there by the Company. See also
Peirce v. Lyden, 157 Fed. 552 (C. C. A., 2nd Circ. 1907), children were, to
the knowledge of defendant's watchman, in the habit of stealing oil from
an unlocked shed occupied by the defendant and situate in an open railway
yard near a public school, and with it making bonfires. The plaintiff, an
infant, was burned either by the explosion of a can of oil thrown on the
fire or while himself running and jumping through it — it was held that htr
might recover from the defendants.


J lerc \vc have the doctrine c>f tlic Turntable Cases carried to
its natural and logical result. We have only to add that every man
who leaves a wheelbarrow, or a lawnniower, 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 liis barn-yard, upon which children may
climb, and from which they may fall; or who turns in his lot a kick-
ing horse or a cow with a calf, — does so at the risk of having the
question of his negligence left to a sympathetic jury. How far does
the 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 trespassing
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? Such is the evolution of the law, less than 30 years
after the decision of Railroad Co. v. Stout, when, with due defer-
ence, we think some of the courts left the solid ground of the rule
that trespassers cannot recover for injuries received, and due merely
to negligence of the persons trespassed upon. * * *

The case of Frost v. Eastern Railroad, 64 X. II. 220 (9 Atl.
790, 10 Am. St. Rep. 396), lays down the general rule thus: /

"At the time of his injury, the plaintiff was using the defend-/
ant's premises as a play-ground, without right. The turntable was
required in operating the defendant's railroad. It was located on
its own land, so far removed from the highway as not to interfer^
with the convenience and safety of the public travel, and it was not
a trap set for the purpose of injuring trespassers. Aldrich v. Wright,
53 N. H. 404 (16 Am. Rep. 339). Under these circumstances, the
defendant owed no duty to the plaintiff, and there can be no neg-
ligence or breach of duty where there is no act or service which
the party is bound to perform or fulfill. A landowner is not re-
quired to take active measures to insure the safety of intruders, nor
is he liable for an injury resulting from the lawful use of his prem-
ises to one entering upon them without right. A trespasser ordi-
narily assumes all risk of danger from the condition of the prem-
ises, and, to recover for an injury happening to him, he must show '
that it was wantonly inflicted, or that the owner or occupant, being
present and acting, might have prevented the injury by the exercise
of reasonable care after discovering the danger." * * *

To hold the owner liable for consequential damages happening
to trespassers from the lawful and beneficial use of his own land
would be an unreasonable restriction of his enjoyment of it."

The following is the criticism indulged in of the case of Rail-
road Co. V. Stout:

"We are not prepared to adopt the doctrine of Railroad Co. v.


Stout. 17 Wall. 657, and cases following it,— that the owner of
machinery or other property attractive to children is liable for in-
juries happening to children wrongfully interfering with it on his
own premises. The owner is not an insurer of the safety of infant
trespassers. One having in his possession agricultural or mechanical
tools is not responsible for injuries caused to trespassers by careless
handling; nor is the owner of a fruit tree bound to cut it down or
inclose it, or to exercise care in securing the staple and lock with
which his ladder is fastened, for the protection of trespassing boys
who may be attracted by the fruit. Neither is the owner or occupant
of premises upon which there is a natural or artificial pond, or a
blueberrv pasture, legally required to exercise care in securing his
gates and bars to guard against accidents to straying and
trespassing children. The owmer is under no duty to a mere tres-
passer to keep his premises safe ; and the fact that the trespasser is
an infant cannot have the efifect to raise a duty where none otherwise
exists. 'The supposed duty has regard to the public at large, and
cannot well exist as to one portion of the public, and not to another,
under the same circumstances. In this respect children, women, and
men are upon the same footing. In cases where certain duties exist,
infants may require greater care than adults, or a different kind of
care; but precautionary measures having for their object the pro-
tection of the public must, as a rule, have reference to all classes
alike.' Nolan v. Railroad Co., 53 Conn. 461."

The Alassachusetts court has been no less emphatic in its con-
demnation of the case of Railroad Co. v. Stout ; Daniels v. Railroad
Co., 154 Mass. 349.

The case of Walsh v. Railroad Co., 145 N. Y. 301, unqualifiedly
condemns the rule of Railroad Co. v. Stout.

In addition, there are many cases that disregard the rule.*

*Even in those jurisdictions which follow, R. R. v. Stout, there is a
distinct tendency to limit its application to railroads maintaining turn-tables
on their premises or at the broadest to land owners maintaining on their
land attractive and dangerous machinery, Stendal v. Boyd, Ji Minn. 53
(1898) ; Savannah, etc., Ry. Co. v. Beavers, 113 Ga. 398 (1901), p. 411; Mo
Kan. & Tex. R. R. v. Edxcards, 90 Tex. 65 (1896), per Games, C. J.; Dob-
bins V. R. R., 91 Tex. 60 (1897) ; Barney v. R. R., 126 Mo. 372 (1894) I Peters
V. Bowman, 115 Gal. 345 (1896).

So in the majority of such jurisdictions it is held that there is no duty
to guard a pond or excavation not adjacent to a highway nor to fence the
lot in which it is situated. Schauf's Adm. v. Paducah, 106 Ky. 228 (1899) •,
Overholt v. Vicths, 93 Mo. 422 (1887): Richards v. Conncll, 45 Neb. 467
(1895) ; Savannah Ry. v. Beavers, supra; Dobbins v. R. R., supra; Peters v.
Bowman, supra; Klix v. Nieman. 68 Wis. 271 (1887) ; [this is, of course, so
where R. R. v. Stout is not followed; Gillespie v. McGowan, 100 Pa. 144
(1882); Hargreaves v. Deacon, 25 Mich, i (1872)]. Contra: Pekin v. Mc-
Mahon, 154 111. 141 (1895); Franks v. Southern Cotton Oil Co., 78 S. C. 10
C1907) ; Brinkley Car Co. v. Cooper. 60 Ark. 543 (1895) ; Price v. Atchison
Water Co., 58 Kan. 551 (1897) ; Mackcv v. Vicksburg, 64 Miss. 777 (1887).

So it has been field there is no liability for the fall of ties negligently
stacked in railroad yard. R. R. v. Edwards, supra, see ace. Kelly y. Benas,
116 S. W. 557 (Mo., 1909). and Vanderbeck v. Hendry, 34 N. J. L. 467
(1871) ; contra, Bransom's Adm. v. Labrot. 81 Ky. 638 (1884); nor for a
failure to fence a freight yard. Barney v. R. R., supra; nor for failure to
prevent children from getting upon moving trains,. j&/rf, also Catlett v. R. R.,


It remains to discuss our own cases cited in support of plain-
tiff's contention. The case of Pozvers v. Harlozv, 53 Mich. 507. was
a case where a young person exploded a dynamite cap which he
found on defendant's premises, under a shed. In discussing the
case the court alluded to JIargrcavcs v. Deacon, 25 Mich, i, where
it was unqualifiedly held that "owners of private property are
not responsihle for injuries caused by leaving a dangerous place
thereon, but not immediately adjoining the highwa}-, unguarded,
where the person injured was not on the premises by permission, or
on business or other lawful occasion, and had no right to be there,"
and said : "The children, it is said, were trespassers ; and, even if
it can be said that they were licensed to go where they did, the result
must be the same," etc. "This is the point on which the case must
turn." The court then proceeded to show that the children were
rightfully there by invitation, and that some caution was required
in such a case. Clearly, this does not adopt the rule of Railroad Co.
V. Stout. * * *

That a landowner is under no obligation to use care to protect
a trespasser is a broad, and, imtil recently, undisputed, rule, without
exception ; liability for injuries sustained by such being limited to
cases of intentional or wanton injuries. The rule, with this limita-
tion, is sustained today by the great weight of authority. It is con-
tended by some law waiters, and has been held in some cases, that an
exception exists in favor of children of tender years. The varying
reasons given should lead us to doubt the solidity of the foundations
upon which these cases rest, especially when none of the reasons are
of recognized authority. The law has never before denied the
liability of children for trespass because of tender years. On the
contrary, it was intimated in Mangan v. Attcrton. L. R. 1 Exch. 239,
that a 4-year-old boy was a trespasser, under the circumstances of
that case; and there are numerous cases cited in this opinion where
liability is denied upon that, and no other, ground. The assertion
that the weight of authority supports the plaintiff's contention in
this case seems to us incorrect. It may l)e true that, in cases involv-
ing turntables, a majority of the cases, which are necessarily few,
have followed the case of Railroad Co. v. Stout, supra ; but there
should be a legal principle underlying the rule laid down in that
case, and that principle has been assiduously sought for by some of
the courts, without success, as we have seen. Others have asserted
dift'erent reasons for following it. One gives us to understand that

57 Ark. 461 (1893) ; L. & N. R. R. v. Hunt, 11 Ky., L. R. 825, 13 S. W. 275
(1890) ; Bishop v. Ry. Co., 14 R. I. 314 (1884), boy getting on rear platform
of street car bavins no conductor but only a driver; Moraii v. Pullinau Co..
(34 Mo. 641 (i8g6\ boy drowning wbile swimming in a pond in unfenced
lot; Arnold v. St. Louis, 152 Mo. 173 (1899), boy falling through ice while
skating, but see Osborn v. A. T. & S. F. R. L o., 66 Kans. 44U ( iV12j, where
an abandoned roundhouse was held to be an "attractive danger."

There is no duty on tlio part of the land owner to make it impossible
for a child to injure himself, only reasonable care need be taken. Hacslcy
•«'. 7?. R., 46 Minn. 233 (1891'), cars left on side track on heavy grade but
hrmly braked; Ccut. Branch Union Pac. R. R. v. Henigh. 23 Kan. 347 (1880) ;
George v. Los Angeles Ry. Co., 126 Cal. 357 (1899"), cars so heavy that great
force was necessary to set them in motion, aliter. if easily moved by chil-
dren; Cahill V. Stone & Co., 96 Pac. 84 (Cal, 1908).


a child i^ licensed to go wherever he can find that which attracts
him; a Texas court has held that children of tender years cannot be
trespassers ; while other authorities are content to rest their approba-
tion of and adherence to the alleged rule upon the inhumanity of
the doctrine that a landowner must not be held responsible for in-
juries suffered by trespassing children, when by ordinary thought-
fulness and care he could have anticipated and prevented it. and the
generic term "attractive nuisances" is applied to the great variety of
things which may naturally be expected to allure }'oung children upon
private premises. The term "attractive nuisance," as applied, is a j
new one in the books, and the plausible application of the well-known i
principle that one must so occupy his own as not to do harm to the |
rights of others should not be construed to so restrict the use of |
private lands as to make it necessary to guard and protect tres- |
passers. A man's home has always been considered his castle, — a
domain where, secure from intrusion, he might lawfully do as he
would, so long as he did not interfere with the legal rights of others.
It has been his duty to guard those Hcensed to enter, but beyond
that he has not been required to go. In our anxiety to prevent per-
sonal injuries, we should not go so far as to overturn private rights.

Admittedly, the duty of incessant watchfulness and care of
one's own premises is limited to young children. It does not extend
to an adult, ^^'hy should it extend to children, upon whose parents
both nature and the law impose the duty of care and watchfulness? ^

When, by reason of a parental neglect of duty, a trespassing
child is injured, it might be treated as a casualty, or the neglectful
guardian might be liable; but there is much reason, if not wisdom,
in the common-law rule that the person trespassed upon should not
be liable to respond in damages, instead of, as in other cases, having
a right of action against the trespasser. But, however Draconic the
common-law rule may be considered, it is the province of the courts
to enforce it until changed by the legislature. No one questions the
power or the propriety of the regulation of the use of railway turn-

= See Prof. Jeremiah Smith, ir Harv. L. R. 349, 435, P- 372: "If those
who brought the child into the world are vmable, by reason of poverty, to
provide him a playground, this may affordan argument for the passage of
a statute imposing" that duty upon the municipality, in which case each land
owner would have to contribute his proportion of the expense. But this is
quite another thing from assessing upon a single unfortunate land owner
the entire damage arising from the want of such a playground."

On the contrary, Edgington v. R. R., 116 Iowa, 410 (1902), bases the
owner's lial)ilitv on the extreme inhumanity of the contrary view and, in
Chic, B. & Q.'R. R. v. Kraycnbnhl. 65 Neb. 889 (1902), it was held that to
require a railroad to fasten its turn-table is not an unreasonable restriction
upon its right as land owner to do as it pleased thereon, since the attend-
ant interference with its enjoyment of its land, and the conduct of its busi-
ness thereon, was, out of all proportion, slight as compared with the magni-
tude of the risk of serious injury to children thereby, averted (sec per Hunt,
J., R. R. V. Stout, 17 Wallace, p. 662, "It was not shown that this 'locking
the turn-table' would cause any particular expense or inconvenience to the
defendant.") So. in Schult5 v. Byers, 53 N. J. L. 442 (i89i)_, p. 446-7, the
slightness of the trouble required to prevent great harm is given as a rea-
son for requiring an owner to give notice to his neighbor before excavating
upon his own land so that the latter may shore up his buildings and so pre-
vent their fall.


tables and other appliances of a dangerous nature. The legislature
can do this, and leave untouched the common rights of the ordinary
landed proprietor. The courts cannot. The rule laid down in Rail-
road Co. V. Stout must be a general one. api)licable to every OTie ;
and, aside from the impropriety of judicial legi^-lati<jn, a wise public
policy should forbid such a sweeping innovation by judicial main

In innumerable cases the courts have applied and continue to
apply the general rule that a landowner need not protect a trespasser,
every case being an assertion of the principle which is disregardefl
in the cases relied upon by the plaintifY. We have cited a few of
them. — enough, we think, to show that the great weight of authority
does not sustain the i)rinciple of ihaJTuruJable Cases. While some
of the courts have followed the rule of Railroad Co. v. Stout, both
the courts and profession have evinced a tendency to allow this inno-
vation to go no further, and refuse to consider it applicable to other
cases every way analogous. They speak of the cases generically, as
the "Turntable Cases," and treat such cases as exceptional. We are
of the opinion that they are exceptional, and that they are not based

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 58 of 124)