for holding the defendant liable, is that it maintained in a public place, in an unguarded and unprotected condition, a dangerous instrumentality or thing that was attractive to children. It could hardly be said that a retaining wall like the one in question is dangerous. It is not like a stack of lumber composed of separate pieces that are liable to fall at any time. On the occasion of the accident, it did not fall or break. The only sense in which it could be said to be dangerous is that it was easy to climb, and easy to fall from; but, for that matter, so is every tree, every pole, every fence, every ladder, every railing or set of steps, that the owner may have about his

and, coming in contact with defendant's to place it. The only ground, therefore, wires, was injured. A recovery was denied. Counsel for appellant contend that the facts of this case bring it within the rule laid down in the case of Harper v. Kopp, supra, because the retaining wall was placed in a public street where plaintiff had the right to be. As before stated, however, the court rested its decision in the Kopp Case upon the fact that the defendant, without permission from the city authorities, stacked his lumber in a public street, where, because of its unguarded condition, it was dangerous to young children. In the case | under consideration, the defendant was authorized by the city to build a viaduct and construct a retaining wall. The wall was placed where the defendant had the right ' premises.

It is charged in the petition

Where certain persons in possession and control of an unfenced lot upon a public street had piled lumber on it so negligently that an infant playing near it was killed by one of the timbers falling upon him, it was held in Bransom v. Labrot, 81 Ky. 638, 50 Am. Rep. 193, that such persons, in placing the lumber on the lot, were bound to make it reasonably safe and secure against injury to children coming near it, and that

liable in Kansas City, Ft. S. & M. R. Co.
v. Matson, 68 Kan. 815, 75 Pac. 503, where
a locomotive and a number of cars ran
along the track close by, shaking the pile
and causing a boy to fall under the train.
The court stated that it was immaterial
who owned the ground on which the pile of
wood was placed, as the railroad company
was aware of the situation and the danger.
Even if the injury was the result of the con-
current negligence of two parties, the rail-a
road company would be responsible where
its negligence was the proximate cause of
the injury.

The negligence of a manufacturer was held a question for the jury in Valley Planing Mill Co. v. McDaniel,

failure to do so rendered them prima facie guilty of negligence. In this case they had been notified of the dangerous character of the lumber piles, and were requested to make it safe, which, with ordinary diligence they could have done, but they failed and refused to do so. The lumber pile was within 40 feet of a public street, across a pathway the public had been accustomed to use, and upon an open, unfenced lot that children had for years been in the habit of resorting to by license of the owner, and without objection or warning by defendants, and to which they could, before the timber was placed thereon, resort with safety. It was therefore the duty of defendants, in placing their timber upon the lot, to do it in such a manner as to make it reasonably safe and secure against injuries to children coming there.

Ark. 170 S W. 994, where he left a truck loaded with lumber standing in the door of his dry kiln, abutting on a street, with the front end extending into the street about 3 feet, and a boy nine years old, walking along the street, reached up and caught hold of the front end of the truck, causing it to fall over and crush him. The evidence showed that the street abutting on the dry shed of the manufacturer where the boy was injured was not a very much traveled street by footmen, but the manufacturer, in the exercise of that care which the law requires of an ordinarily prudent person in the conduct of his business, was bound to anticipate that children, as well as adults, were likely to be walking along the street, and that a child of tender years might be tempted to play with a loaded truck, or to indulge in such childish pranks as the one in question. The child was upon the street, where it had a right to be; and the manufacturer should not only have anticipated that children were likely to walk upon the street, but that they were also likely to turn aside from travel and play and meddle with a loaded truck which extended out into the Where lumber was piled in a passage or street. Having left the truck there, heavily gangway on private property 54 feet from loaded with lumber, with the front end a public street, the owner was held not sticking up, and the load on the truck liable in Vanderbeck v. Hendry, 34 N. J. L. so near evenly balanced that only a slight 467, where a child was killed by a pile of exertion was necessary to tilt it down, the lumber toppling over upon her while gathmanufacturer's negligence was, in the opin-ering wood. The court stated that the ion of the court, a question for the jury. passageways were in no sense intended for

The owner of a lumber pile in a public landing place was held not liable, however, in Lynch v. Knopp, 118 La. 611, L.R.A. (N.S.) 480, 118 Am. St. Rep. 391, 43 So. 352, 10 Ann. Cas. 807, for the death of an eight-year-old girl, caused by the fall of lumber upon her, due to the fact that other children had gone upon the lumber and displaced pieces of it, since the owner had no reason to suspect that children would do that, and for the reason that the lumber pile was not such an object as to attract children or excite their curiosity.

to fall from, but to impose upon the defendant the further duty of also guarding and protecting the additional guard rail or fence. In our opinion, the retaining wall in question was not such a dangerous instrumentality or thing as to impose on the defendant any liability for its original construction or its failure to construct barriers to prevent boys from climbing on it. It follows that the trial court properly sustained the demurrer to the petition. Judgment affirmed.

supplied to it by the child toppled it over. Fixing such a trap upon a street in an inhabited part of a city, with the strong probability that children would be playing about it at all hours of the day, was reckless, culpable negligence.

A builder who, under a permit from the city authorities, piled lumber in the highway so negligently that it toppled over and killed a boy playing on the sidewalk, was held liable in Addis v. Hess, 29 Pa. Super. Ct. 505.

that defendant was negligent in not con-, danger by furnishing them something else structing the protecting wall in such a way that it could not be climbed. It is suggested that spikes could have been placed on it. Manifestly, if this had been done, and plaintiff had been injured, there would have been greater reason for holding the defendant liable. It is also suggested that a fence or a guard rail might have been constructed at the lower point of the wall. As this would have rendered access to the wall a little more difficult, the natural result would have been to increase the number of climbers, and not only add to their the use of the public except as they might have occasion to go there for the purpose of business; the public, otherwise than to that extent, were not either expressly or impliedly invited or allured to pass through them. The occasional passing through by persons to reach a public street was not encouraged by the defendant or in any way acquiesced in, otherwise than as may be implied from not expressly forbidding it. The presence of children in the passageway was without the consent or even acquiescence of the defendant, for it cannot be disputed that generally they were driven out of the yard. Under these circumstances the defendant ought not to have been held responsible to the plaintiff for mere neglect in the mode of piling the lumber. The plaintiff was only a volunteer, and not there within the scope of the purpose of the way, or by any act of the defendant induced to come into it. The exposure of such gangways, clearly intended for business uses alone, although in a populous locality, where children might be tempted, from curiosity or idle purpose, to go, is not sufficient to require the defendant either to fence his yard or pile his lumber with reference to the fact that children might be injured by mere neglect in its piling. The court further stated that the defendant ought not to be held to the duty of reasonable care towards plaintiff in the piling of the lumber, piling it so as to prevent any danger that would be likely to come to children who might naturally and reasonably be expected to frequent the locality without a conscious purpose of mischief or conscious unlawful act. Plaintiff's age could have no bearing except on the question of contributory negligence; and if the defendant had been guilty of any neglect of duty towards him, his tender years might have shielded him from any imputation of carelessness.

It is culpable negligence to pile lumber near a sidewalk so that a child, by applying slight force, may topple it over. Earl v. Crouch, 40 N. Y. S. R. 847, 16 N. Y. Supp. 770, affirmed in 131 N. Y. 613, 30 N. E. 864. The court in the above case stated that there was abundant evidence that the lumber was piled in a negligent, careless manner, instead of piling it so that the tiers would rest against and support each other; the tier that fell was so piled that the slight force

A boy does not become, as matter of law, a lounger by stopping in a street on his way home, to rest and cool off, after finishing a game which he had been playing in a vacant lot, so as to prevent his recovering for injuries by the fall upon him of lumber illegally piled in the highway. Kessler v. Berger, 205 Pa. 289, 61 L.R.A. 611, 54 Atl. 887, 14 Am. Neg. Rep. 203.

Telegraph poles and trees.

A telegraph pole with guy wire attached and prongs exposed was, in Thompson v. Cumberland Teleph. & Teleg. Co. 138 Ky. 109, 127 S. W. 531, held not to constitute an attractive or dangerous trap for little children, so as to render the telegraph company liable for injuries to a child who slipped, striking the guy wire, in attempting to climb the pole.

In holding a guy wire not a dangerous instrumentality, attractive and alluring to children, within the meaning of the Turntable Cases, the court in Mayfield Water & Light Co. v. Webb, 129 Ky. 395, 18 L.R.A (N.S.) 179, 130 Am. St. Rep. 469. 111 S. W. 712, stated that as long as electric light wires are not put under ground, they must be put upon poles; and where they are placed above the street as high as 18 feet, the company should not be required to anticipate that children will climb up to the wires and get hurt. Guy wires are necessary on high poles at street corners where the line turns. A guy wire placed on a high pole to keep it in place, or some such contrivance, cannot well be dispensed with. Such a wire is not a dangerous instrumentality, attractive or alluring to children, within the meaning of the Turntable Cases. The little boy was a trespasser upon the defendant's wire, and, being a trespasser, he

It was held in Temple v. McComb City Electric Light & P. Co. 89 Miss. 1, 11 L.R.A. (N.S.) 449, 119 Am. St. Rep. 698, 42 So. 874, 10 Ann. Cas. 924, that an electric light company was bound to have reasonably expected that small boys of the neighborhood would climb a little oak tree abounding in branches extending almost to the ground, and that the company was liable where a boy did climb the tree and came in contact with one of the company's uninsulated wires, receiving injury. The court stated that the immemorial habit of small boys to climb little oak trees filled with abundant | So, the turntable doctrine was, in O'Hara branches reaching almost to the ground is a v. Laclede Gaslight Co. 244 Mo. 395, 148 S. habit of which corporations stretching their W. 884, held inapplicable to a large gas wires over such trees must take notice. pipe left near the curb of a street by conThis court, so far as the exertion of its tractors, unblocked, and which started to

Falling within the McAlpin Case, supra, is that of Martin v. Cahill, 39 Hun, 445, where it is held that a painter's ladder hung horizontally, and left under the window of a house while a coat of paint is drying, presents no invitation to a girl under nine years of age to let herself down upon it, so as to render the painter liable for injuries to the child by a fall therefrom, not occasioned by the insecurity of the ladder itself, the child having been warned by him to keep off.

roll, killing a boy nine years old, playing in place of danger, and sustains an injury the center of the street. "The length of without any allurements being held out to time the pipe remained in position demon- him. A wide distinction exists between the strated it was securely laid, and no careless-two cases, and while the one at bar is on ness can be predicated in regard to the the border line, and the point of difference manner in which it was laid unless the de- is, perhaps, very close, this distinction is fendant was bound to anticipate children fully recognized in the best considered ajudiwould play about it, and guard against an cations in the court, and is the turning injury to them. In my opinion this is in- point upon which cases of this character voking the doctrine of the Turntable Cases are to be determined. and applying it to an instance to which it had no application. There was nothing about these pipes in the street so attractive to children, or so dangerous to them if attracted, as to impose on defendant the duty of taking precautions with a special reference to accidents to children. Children will romp occasionally about any appliance, tool, or device they have access to; but only those which are apt to entice them into danger impose on the owner the duty of guarding against their intrusion. In fact, the Turntable Cases are anomalous, and it is the practice of the court to carry their doctrine no further than the previous decision compelled." So, of course (the court observed), the mere laying of the pipe on the slight incline proved in the case does not create a condition of things to invoke the turntable doctrine. Pipes placed in the street are not, of and within themselves, either so attractive to children and so imminently dangerous to children as to authorize the application of the rule applied to turntables and cases involving other inherently dangerous and inherently attractive objects. The application of the rule imposed the duty upon defendant to use special care as to children. This was a burden not imposed by the law under the facts of the case.

And while the doctrine of the Turntable Cases, states the court in Devine v. Armour & Co. 159 Ill. App. 74, is not limited in Illinois to those nuisances which are automatically dangerous to children seeking merely amusement, nevertheless the owner of a dilapidated house cannot be held to a duty to prevent children from coming on the premises to gather wood by tearing it down, especially in the absence of any proof that children, without express permission, were in the habit of indulging in such practice.

Where the owner of a tenement building was held not liable for the death of a nineyear-old boy who went out on the platform of a fire escape and fell through an insecure trapdoor, the court in MeAlpin v. Powell, 70 N. Y. 126, 26 Am. Rep. 561, in distinguishing the Turntable Cases from this, stated that a child is permitted to go into the public streets, which are open to persons of all ages, without being chargeable with negligence, and, being there, if led by attractions into danger, even although it may be that, under some circumstances, an action would lie for injuries sustained thereby, such a case has no similarity to one where the child is left without anyone to take special charge of him, and escapes through an open, unguarded window to a

Another case coming within the McAlpin Case, supra, is Kelly v. Smith, 29 App. Div. 346, 51 N. Y. Supp. 413, 4 Am. Neg. Rep. 668, which holds that no liability attaches to one who, in compliance with a statute, has provided the fire escape on his building with a suitable ladder for reaching the ground, where the ladder is removed by boys from a place of safety on the second balcony and hung on the first balcony, from which it falls, causing fatal injuries to a sevenyear-old child at play on it.

was

Where a child was injured while playing on a pile of stones in an unfenced lot belonging to defendant, the defendant held not liable in Latham v. Johnson, S2 L. J. K. B. N. S. 258, [1913] 1 K. B. 398, 108 L. T. N. S. 4, 77 J. P. 137, 57 Sol. Jo. 127, 29 Times L. R. 124, the doctrine of attractive nuisance being held inapplicable, there being neither allurement, nor trap, nor invitation, nor dangerous object placed upcn the land.

But where a railway company maintains in its freight yard an abandoned roundhouse on the roof of which it knew boys were in the habit of playing, the company was, in Osborn v. Atchison, T. & S. F. R. Co. 86 Kan. 440, 121 Pac. 364, held liable on the theory of attractive nuisance where a boy was killed in the act of climbing the smokestack, which fell on him.

An owner was held not liable in Harris v. Cowles, 38 Wash. 336, 107 Am. St. Rep. 847, 80 Pac. 537, under the turntable doctrine, for injury to a child by being caught in a revolving door maintained at the entrance of a building, there being no allegation showing that the owner was, at the time, under any relations of duty to the child other than that which he owed to an ordinary trespasser, or, at most, to a mere licensee, and there being no allegation showing that the door was not so constructed as to safely answer the purposes for which it was intended when used for that purpose only; viz., for passage to and from the building. It would be difficult, said the court, to apply the turntable rule to a device of this kind, intended, as it was, for con

stant use in passing to and from the build- | pose birds should build their nests under ing. It could not be used for the purpose the eaves of a sawmill that had a ladder atintended if it should be locked. The rule of tached to its side, and a boy, attracted by the Turntable Cases requires that the de- said ladder and birds' nests should climb vice shall be kept locked or guarded when the ladder, and purposely or inadvertently not in use, and it is well known that the thrust his hand through a window against a ordinary turntable is used only occasional-running saw, in the upper story of said ly. The purpose of this circular door, how- mill, would the owner of the mill be liable ever, requires that it shall be subject to the for the boy's injuries? Suppose a merchant uses of ordinary passage at any moment, should keep dynamite (in order to have it and it is manifestly impracticable to keep out of the way of people) upon the roof of it locked or guarded if it serves the purpose his store, and some boy, without the consent intended. The court further stated that it and against the wishes of the owner of adhas already been made clear by former deci- joining premises, should climb a tree theresions that this court will not extend the on for birds, and, while up in tree, reach application of the doctrine of the Turntable over and explode some dynamite,—would Cases beyond a turntable itself. Whatever the owner thereof be holden for the injury may be said of the wisdom of that rule as thereby occasioned to the boy? Regardless applied to the one condition, established, as of what the name may be, it seems to us, it was, by judicial decisions, but severely said the court, that the contention of recriticized by others refusing to follow it, spondent is an invitation for the extension still when we contemplate its extension to of the turntable doctrine beyond the limits the manifold other relations and conditions permitted by the law as heretofore anwhich arise in the affairs of life, we must nounced by this and the great majority of see that it would be productive of litigation the courts. to such an extent as would greatly andanger the security of property interests. It is aptly suggested by respondent in his brief, that swings, teeter boards, lumber piles, fences, gates, walls, buildings, trees, hanging on vehicles, and numerous other similar things are attractive to children. It will therefore be seen that if this doctrine should be made one of general application for the protection of children against everything that may be especially attractive to them, it would result in requiring all prop-shown in the case that the defendant knew erty holders to assume toward children who may be attracted to their premises a degree of duty and care which properly belongs to parents or guardians.

The fact that cross steps on a bridge pier could be used as ladders, and the fact that pigeons were in the habit of rearing their young on the beams and around the top of the bridge, rendering the bridge a place attractive to small boys, will not render an electric power company liable for injury to a boy who, in climbing the bridge, comes in contact with a live wire, 30 feet above the ground, and is thereby hurt, since the things that constitute the attraction are features connected with the river, the bridge, and the pigeons, which are matters for the existence of which the company is not responsible, and the accident is not one which the company should have anticipated. Graves v. Washington Water Power Co. 44 Wash. 675, 11 L.R.A. (N.S.) 452, 87 Pac. 956. In the above case the court stated that if the company's responsibility extended this far, it would be difficult to say where a limit could be fixed. In this state we see electric wires stretched on poles through our towns and cities, and along highways, through farms, orchards, and forests in the country. Can it be held that companies operating these wires must keep them out of reaching distance of every high tree, building, fence, wall, pole, or other place of elevation into or upon which a boy may possibly be allured by birds' nests or other attractions? Sup

The doctrine of the Turntable Cases was held inapplicable in Witte v. Stifel, 126 Mo. 295, 47 Am. St. Rep. 668, 28 S. W. 891, where the owner of a building in the process of construction was held not liable for the death of a seven-year-old boy who, while at play, pulled a loose stone over upon him in attempting to get upon a window sill and was thereby killed, no inducement or invitation, implied or otherwise, being held out to him. The court said that it was not

of the dangerous condition of the stone, or that children were in the habit of resorting to the building for play; nor was there anything about the construction unusual or unique, which would be attractive to children. The child was a mere intruder and trespasser, and the defendant owed him no duty except the negative one not to wantonly or maliciously injure him.

The following cases do not discuss the attractive-nuisance doctrine, but their facts are such as to warrant their inclusion in the note:

Thus, where persons left stringers or boards across a canal where they had been working, and a child four and one-half years old wandered to the place, fell off of one of the boards, and was drowned, it was held in Blum v. Weatherford & C. Bros. 121 La. 298, 46 So. 317, that the stringers were not attractive to children, and that the defendants were not liable. The court stated that a person not in any way negligent, not suspecting and without cause to suspect that a child of tender years would leave the playground and attempt to cross on stringers that he had placed across the canal, cannot be held liable for damages. If the contrary were the rule, then all boards across a small stream, canal, or drain would have to be removed immediately after they had been used, although not intended as a crossing place, and not attractive at all as such.

It is held in Williamson v. Gulf, C. & S. F. R. Co. 40 Tex. Civ. App. 18, 88 S. W.