Clay, C., filed the following opinion:

Plaintiff, Louis Sterling Coon, suing by his next friend, brought this action against defendant, Kentucky & Indiana Terminal Railroad Company, to recover damages for personal injuries. Defendant's demurrer to the petition was sustained, and the petition dismissed. Plaintiff appeals.

W. 712; Simonton v. Citizens' Electric Co. 44 Wash. 675, 11 L.R.A. (N.S.) 452, 87 Light & P. Co. 28 Tex. Civ. App. 374, 67 Pac. 956; 1 Thomp. Neg. §§ 1031, 1032; S. W. 530; Harris v. Cowles, 38 Wash. 331, 29 Cyc. 463. 107 Am. St. Rep. 847, 80 Pac. 537; Fitzmaurice v. Connecticut R. & Lighting Co. 78 Conn. 406, 3 L.R.A. (N.S.) 149, 112 Am. St. Rep. 159, 62 Atl. 620, 19 Am. Neg. Rep. 102; Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn. 688, 4 L.R.A. (N.S.) 804, 112 Am. St. Rep. 881, 91 S. W. 199, 19 Am. Neg. Rep. 553: Swartwood v. Louisville & N. R. Co. 129 Ky. 247, 19 L.R.A. (N.S.) 1112, 130 Am. St. Rep. 464, 111 S. W. 305; Hermes v. Hatfield Coal Co. 134 Ky. 300, 23 L.R.A. (N.S.) 724, 120 S. W. 351; Myer v. Union Light, Heat & P. Co. 151 Ky. 332, 43 L.R.A. (N.S.) 136, 151 S. W. 941; Graves v. Washington Water Power the other premises may not be of itself dangerous. Consequently an electric light company was held liable under the attractive-nuisance doctrine in Consolidated Electric Light & P. Co. V. Healy, 65 Kan. 798, 70 Pac. 884, 13 Am. Neg. Rep. 71, for maintaining defectively insulated wires outside the course of the traveled way, on a viaduct in a city street, and separated therefrom by a balustrade over which small boys were in the habit of climbing and going close to the wires, where a ten-year-old boy climbed over the railing, and came in contact with a wire, and was killed. The court said that while the company did not maintain the bridge and the railing constituting the attractive climbing place for boys, and it might be that its wires were not attractive appliances, still it maintained the wires in such immediate proximity to that which was attractive as to constitute them an

integral part of the whole. It put its wires within the attractive environment; it identified itself in that way with the attractive place. (Generally as to duty in stringing electric wires to guard against danger to children, see note to Temple v. McComb City Electric Light & P. Co. 11 L.R.A. (N.S.) 449; Wetherby v. Twin State Gas & Electric Co. 25 L.R.A. (N.S.) 1220; and Meyer v. Union Light, Heat, & P. Co. 43 L.R.A. (N.S.) 136.)

Gates.

The court, in Chicago, K. & W. R. Co. v. Bockoven, 53 Kan. 279, 36 Pac. 322, refused to extend the attractive-nuisance doctrine to an inside gate, holding that a railroad company maintaining, near a small settlement, a stockyard sufficiently fenced and protected by an outside gate, would not be liable for the death of a five-yearold boy who was killed by the falling of a defective inside gate upon which he was swinging, if, without the knowledge of the company, he reached the place by climbing over the outside gate. But the court said that if, with the consent or knowledge of

It appears from the petition that defendant is a railroad company with authority to own, maintain, and operate a line of railroad in the state of Kentucky and elsewhere, and to own, maintain, and operate viaducts, bridges, and trestles over and the company, children frequently climbed over the outside gate or inclosure of the stockyard and played or swung on the inside gate, which was in a defective and dangerous condition, under certain circumstances, such negligence might be established as would create a liability for any injury resulting to such children from a gate knowingly left in a dangerous condition. If the outside gate was generally left open, in consequence of which children frequently went inside of the yards and played or swung on the defective inside gate, and all of this was with the consent or knowledge of the company, and if on the morning that the little boy was killed, the outside gate was open, and the boys entered the yard through the opened gate, a liability might rest upon the company if the parents were not negligent in suffering the boy to be exposed to such danger. If the railroad company had knowledge that little children frequently played in the vicinity or around the stockyards, and if the outside gate was open upon the morning of the injury, without the authority of the railroad company, the question might arise, whether, after being open, it was negligently permitted to remain open. open door or gate to an inclosure or other premises where children frequently play would be very apt to excite their curiosity, and is something in the way of a permission or an invitation to enter such inclosure or premises, and a little boy, in going through an open gate or door around which he is playing, would be indulging in the natural instincts of a child. On the other hand, safe and securely closed gates would form a bar to the inclosure. It does not appear from the evidence that little children could open the outside gate of the stockyards when closed or shut. It was further observed by the court that if it were proved that on one occasion only, prior to the injury, children were in the stockyards and were ordered away at once by the company or its agent, and under such direction left the yard, that of itself would not establish knowledge on the part

An

doctrine and sustained a recovery in a the lumber in a public street, where its number of cases. Thus, in Bransom v. La- unguarded condition made it attractive and brot, 81 Ky. 638, 50 Am. Rep. 193, the dangerous for young children. In the case defendant owned a vacant lot between two of Louisville R. Co. v. Esselman, 29 Ky. streets in Frankfort. The lot had been used L. Rep. 333, 93 S. W. 50, the railway comby the public for a number of years. De-pany stacked, in one of the streets of Louisfendant used it for stacking lumber. One ville, certain building materials to be used of the piles of lumber was negligently in the reconstruction of its power plant. stacked. Plaintiff's intestate, a little boy, Part of the materials consisted of heavy while playing on or near the unsafe pile iron I-beams. While a boy eleven years of of lumber, was struck by the falling lumber age was playing on the beams, one of them and killed. In the case of Harper v. Kopp, fell over and injured his leg. Judgment in 24 Ky. L. Rep. 2342, 73 S. W. 1127, the de- favor of the boy was affirmed on the ground fendant, without permission from the city, that the material was so negligently stacked left a pile of lumber stacked in the streets. as to constitute a dangerous instrumentalA child six years of age, while playing ity. A recovery was also allowed in Brown about the lumber, was injured. A recovery v. Chesapeake & O. R. Co. 135 Ky. 798, 25 was allowed because the defendant stacked 'L.R.A. (N.S.) 717, 123 S. W. 298, which was

she (defendant) had a right to put the lumber on the lot, and that plaintiff had no right to go there. The court stated that plaintiff at most was a mere licensee, and the owner of land is not bound by the common law to fence his land, nor is he under any obligations to make the same safe or to keep it in any particular condition for the benefit of trespassers, bare licensees, or persons going upon it without his invitation, express or implied. The court stated that the case could not be brought within the principle of the socalled Turntable Cases, or attractive nuisance.

gle with. Not only will he be liable for boys drowned while swimming in his stock pond (the idea of swimming being alluring to a boy), for those who fall into uncovered wells, cisterns, and cellars (the notion of playing on the brink of such being a boyish one), for children who are suffocated while playing in piles of sand accumulated for building purposes, or in sliding down stacks of straw unscientifically piled and exposed, but he may be muleted in damages for injuries to his neighbors' children, who, romping in his haymow, without his invitation, break their bones by sliding down his hay chute, or those who, playing in his rock quarry, are hurt. Shall he fence against adventurous, trespassing boys? Almost as well suggest that he build a wall against birds.' If he is held to liability for injury to the children of Jones because of the way he piles his lumber, by the same token, as to Brown, liability would be fastened on him for the way he piles his stones, his bricks, his corn in pens, his hay-sance doctrine. The court stated that dericks, and his cordwood on his private grounds; in fact, as has been pointedly said, every landowner will be liable for injuries to his neighbor's children under the new doctrine except the neighbor himself. We cannot well write the law that way."

No invitation to children to play in a lumber yard can be implied from the fact that the owner does not always drive them away when they enter it. Kelly v. Benas,

supra.

So, a lumber pile on a vacant and uninclosed lot under defendant's control and adjacent to a lot on which she was erecting a building was held not an attractive nuisance in Middleton v. Reutler, 141 App. Div. 517, 126 N. Y. Supp. 315, and the defendant not liable, where a child nine years old was injured while playing on the lot by lumber falling upon him, there being no evidence to show who piled the lumber, or that it was negligently piled, or that defendant was in any way connected with the piling of it, the only evidence connecting defendant with it being a statement by plaintiff's mother to the effect that the defendant called upon her subsequent to the injury, and told her

So, where a lessee piled lumber on a lot adjoining a street, and a child, while at play, was injured by pulling several pieces of the timber upon him in attempting to get on or off the pile, the lessee was held not liable, in Powers v. Owego Bridge Co. 97 App. Div. 477, 89 N. Y. Supp. 1030, the case not coming within the attractive-nui

fendant owed no duty to the plaintiff beyond that which it owed to other strangers, it had the right to use the premises in the usual manner in the prosecution of its business, and was not bound to anticipate that a trespasser would interfere with its property. The case is quite distinguishable from those where lumber or building material has been insecurely piled upon the street so as to menace the safety of those passing, and from those wherein dangerous structures have been maintained upon premises to which the public has been invited. The lumber was piled in the usual way, and if it had not been piled at all, the defendant could not have been held responsible for an injury to a trespasser.

In Kramer v. Southern R. Co. 127 N. C. 328, 52 L.R.A. 359, 37 S. E. 468, where a child was killed by the fall of cross-ties which a railroad company had piled in the street, counsel for plaintiff conceded that he did not contend for the application of the doctrine of the Turntable Cases; and the court observed that that doctrine would not apply if the ties had been carelessly piled on the defendant's premises; that those

a typical turntable case. In the case of United States Natural Gas Co. v. Hicks, 134 Ky. 12, 23 L.R.A. (N.S.) 249, 135 Am. St. Rep. 407, 119 S. W. 166, defendant maintained a defective gate valve in its pipe line underneath a street. Because of the defect the gas leaked. A child four years of age threw a match into the box, which caused an explosion, which injured plaintiff. It was held that, where a gas company maintained a pipe line in a highway, it was bound to protect it to prevent injuries to persons and children lawfully in the highway.

maintained by defendant, and was killed. The evidence showed that the bridge was in good condition for purposes of travel. The court held that the defendant was not required to make its approach safe for children, but was required only to make it safe for the purposes of ordinary travel. In the case of Schauf v. Paducah, 106 Ky. 228, 90 Am. St. Rep. 220, 50 S. W. 42, 6 Am. Neg. Rep. 73, it was shown that the city maintained a gravel pit which was filled with water. A little boy seven years of age walked into the water in pursuit of a bird. He got beyond his depth, and was drowned. On the other hand, a recovery was denied A recovery was denied. In the case of Mayin Louisville & P. Canal Co. v. Murphy, 9 field Water & Light Co. v. Webb, 129 Ky. Bush, 522, where a little girl five years of 395, 18 L.R.A. (N.S.) 179, 130 Am. St. Rep. age fell through the railing of a bridge 469, 111 S. W. 712, a wire heavily charged cases were exceptions to the general rule they are using them, it is negligence on the and went to the very limit of the law; part of the owner not to take some steps to adding that mere attractiveness of premises guard them against the danger. But when to children will not bring a case within the it is said that it is enough that the object exceptional doctrine. It was held, upon the or place is attractive or alluring to chilassumption that the defendant did not dren, and when it is said, as has been intiknow that children were in the habit of mated, that the fact that they resort to a playing on the ties in the street, that it particular locality is evidence of its atwas not liable; but, upon the assumption tractiveness, the question suggests itself, that it did know of that fact, and took no What object or place is not attractive to precautions to prevent such sport or to very young persons who are left free to guard against injury to the children, it pursue their innate propensity to wander in was liable, the decedent being too young to quest of amusement? What object at all be chargeable with contributory negligence; unusual is exempt from infantile curiosity? the latter proposition, however, does not What place conveniently accessible for their seem to rest upon the attractive-nuisance congregation is free from the reckless feet doctrine. Mr. Justice Furches, in a dis- of adventurous truants? We do not see senting opinion, states that this case pro- that a yard kept by a railroad company for ceeds upon the theory that if a lumber deal- the deposit of old ties and other rejected er piles wood or lumber on his premises, material or new material for railroad rethough carelessly piled, and children play pair and construction possesses any greater upon it, and are injured by its falling, the attraction for children than any other owner of the lumber is not liable in dam- place of deposit of any similar material, ages; but if he piles his lumber on the land kept by people pursuing other avocations. of someone else, he is a trespasser, and if Is a pile of ties any more alluring than a the lumber falls and injures the child, he pile of wood kept for fuel, or a pile of rails is liable in damages. Furches was of the laid aside for making or repairing a farm opinion that the railroad company had a fence? Children may injure themselves in right to pile the ties where it did, and was playing on either. In such a case we connot liable as a trespasser. clude that the law does not devolve the duty upon the owner of the yard to see that the ties are so placed that children may not injure themselves while playing upon them. Though the ties may have been inartistically piled, we do not see that any danger should have been anticipated from the manner in which they were stored.

Injury to a child while playing on a pile of railroad bridge ties in the railroad yard, which was fenced except on the side along the railroad track, and out of which the servants of the company always ordered any children found there, did not render the railway company liable, as it was not under obligation to so pile the ties as to prevent injury to a child climbing upon them. Missouri, K. & T. R. Co. v. Edwards, 90 Tex. 65, 32 L.R.A. 825, 36 S. W. 430. It is stated in the above case, in distinguishing the Turntable Cases, that the ruling in these cases must be justified upon one of two grounds: Either that the turntables possess such peculiar attractiveness as playthings for children that to leave them exposed should be deemed equivalent to an invitation to use them, or that, when unsecured, they are so obviously dangerous to children that, when it is discovered that

It is held in Busse v. Rogers, 120 Wis. 443, 64 L.R.A. 183, 98 N. W. 219, 15 Am. Neg. Rep. 743, that one who, in using the street adjoining his property as part of his lumber yard, piles lumber there in an unstable manner, is liable for injuries caused by its fall upon a child who, while traveling along the street, follows its inclination to play, and attempts to climb upon the pile, and thereby causes the timber to fall; and the fact that, at the time a child is injured by the fall of lumber wrongfully and negligently piled in a highway, it has temporarily ceased to be a traveler, and turned aside

broke his neck. In denying a recovery the court said: "If the defendant company is responsible in the case at bar, then it is difficult to limit the rule which would hold a defendant responsible for the trespasses of children. There are very few things which do not afford an opportunity for headlong infancy to injure itself."

with electricity ran in close proximity to a, and, while looking into the chute, fell and telephone pole. The wire was 18 feet from the ground. From the telephone pole two guy wires ran to the ground at an angle of about 45 degrees. A boy eleven years of age climbed up the guy wires. His head came in contact with the electric wire, and he was instantly killed. The court, after stating that the tendency of the more recent cases was to restrict rather than enlarge In the case of Myer v. Union Light, Heat the Turntable Cases, held that the facts did & P. Co. 151 Ky. 332, 43 L.R.A. (N.S.) 136, not warrant a recovery. In the case of 151 S. W. 941, the evidence showed that Hermes v. Hatfield Coal Co. 134 Ky. 300, the light company furnished electricity to 23 L.R.A. (N.S.) 724, 120 S. W. 351, the a church in Covington. Its wires passed coal company maintained a coal chute in down the side of the building and through the city of Covington. A ladder ran from a transformer into the cellar. A boy ten the ground to the top of the chute. A boy years of age, while hunting for a ball, ten years of age climbed up the ladder, climbed the fence inclosing the church yard, to play, does not bar its right of recovery | Super. Ct. 609, for injuries to a boy, reagainst the wrongdoer. The court observes that this is not the case of an owner of land putting an attractive and lawful but dangerous machine or thing upon his own property and leaving it unguarded. It is the case of an owner placing an unlawful nuisance in the highway and leaving it unguarded. The child has a right in the highway. It must be recognized that he will play thereon if occasion offers. While it would not be accurate to say that the streets are made to play in, it would be equally inaccurate to say that a property owner can totally disregard the fact that children always have, and probably always will, play therein. He cannot lawfully lay anything like a trap for the child upon the highway, and escape the consequences by saying that the child would not have been injured had he confined himself exclusively to traveling.

The following cases do not discuss the attractive-nuisance doctrine, but the facts are such as to suggest the application of that

doctrine:

Thus, one who stacks lumber in a public street is liable for injury to a six-year-old boy who falls therefrom, although it may not have been negligently piled, since its unguarded situation makes it an attractive and accessible object of danger to very young children. Harper v. Kopp, 24 Ky. L. Rep. 2342, 73 S. W. 1127.

So, one was held liable in Spengler v. Williams, 67 Miss. 1, 6 So. 613, for the death of a child killed while at play by the falling of an unsafe pile of lumber in a public street, the recovery being allowed on the theory that the lumber so maintained was an attractive nuisance. The court stated that the allegation touching the character of the piled lumber as likely to induce children to play around and about it, and of defendant's knowledge of such fact, did not belong to that class of things required to be alleged in the pleading, or, if alleged, specifically proved.

So, one who had piled beer barrels on a sidewalk in front of his premises was held liable in Kreiner v. Straubmüller, 30 Pa.

ceived while playing upon them. The barrels were empty, were not in any way secured, and were so arranged in tiers as to be attractive to children. 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.

A railroad company was held liable in St. Louis & S. F. R. Co. v. Underwood, 114 C. C. A. 323, 194 Fed. 363, 3 N. C. C. A. 467, for injury to child six years old by a pile of lumber toppling over upon her while at play, the court stating that the conduct of the defendant in placing the lumber in an exposed situation and easily accessible to children of tender years constitutes actionable negligence.

Where a company, in violation of ordinance, piled lumber on the sidewalk in front of his premises, and a child four years old, while standing near or passing by, was killed by planks falling off the pile, the court, in True & T. Co. v. Woda, 201 111. 315, 66 N. E. 369, in affirming a judgment for plaintiff, stated that the company piled the lumber upon the sidewalk in a public street in the city in the vicinity of the homes of a number of children, and the evidence shows that it, through its agents, knew that the children were in the habit of congregating at the place where the lumber was piled, and climbing upon and over the same while at play. The pile of lumber, as thus situated, was of such character that the jury was justified in finding, from the evidence, that the company should have known it would be likely to attract small children; and if they climbed upon the lumber as piled it would be likely to fall upon them and injure them. The jury, from the evidence, were justified in finding that the company's negligence was the proximate cause of the injury.

Where a railroad company maintained a pile of wood in close proximity to the track, and knew for a year or more that children were accustomed to play there, it was held