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and, coming in contact with defendant's to place it. The only ground, therefore, wires, was injured. A recovery was denied for holding the defendant liable, is that it

Counsel for appellant contend that the maintained in a public place, in an unguardfacts of this case bring it within the rule ed and unprotected condition, a dangerous laid down in the case of Harper v. Kopp, instrumentality or thing that was attracsupra, because the retaining wall was placed tive to children. It could hardly be said in a public street where plaintiff had the that a retaining wall like the one in quesright to be. As before stated, however, the i tion is dangerous. It is not like a stack court rested its decision in the Kopp Case of lumber composed of separate pieces that upon the fact that the defendant, without are liable to fall at any time. On the ocpermission from the city authorities, stacked casion of the accident, it did not fall or his lumber in a public street, where, be- break. The only sense in which it could be cause of its unguarded condition, it was said to be dangerous is that it was easy to dangerous to young children. In the case climb, and easy to fall from; but, for that under consideration, the defendant was au- matter, so is every tree, every pole, every thorized by the city to build a viaduct and fence, every ladder, every railing or set oi construct a retaining wall. The wall was steps, that the owner may have about his placed where the defendant had the right' premises. It is charged in the petition liable in Kansas City, Ft. S. & M. R. Co. Where certain persons in possession and V. Matson, 68 Kan. 815, 75 Pac. 503, where control of an unfenced lot upon a public a locomotive and a number of cars street had piled lumber on it so negligently along the track close by, shaking the pile that an infant playing near it was killed and causing a boy to fall under the train. by one of the timbers falling upon him, it The court stated that it was immaterial was held in Bransom v. Labrot, 81 Ky. 638, who owned the ground on which the pile of 50 Am. Rep. 193, that such persons, in wood was placed, as the railroad company placing the lumber on the lot, were bound to was aware of the situation and the danger. make it reasonably safe and secure against Even if the injury was the result of the con- injury to children com

it, and that eurrent negligence of two parties, the rail. a failure to do so rendered them prima road company would be responsible where facie guilty of negligence. In this case they its negligence was the proximate cause of had been notified of the dangerous charthe injury.

acter of the lumber piles, and were requestThe negligence of a manufacturer was ed to make it safe, which, with ordinary held a question for the jury in Valley diligence they could have done, but they Pianing Mill Co. v. McDaniel, Ark. failed and refused to do so. The lumber 170 S W. 994, where he left a truck loaded pile was within 40 feet of a public street, with lumber standing in the door of his dry across a pathway the public had been ackiln, abutting on a street, with the front customed to use, and upon

open, unend extending into the street about 3 feet, fenced lot that children had for years been and a boy nine years old, walking along the in the habit of resorting to by license of the street, reached up and caught hold of the owner, and without objection or warning by front end of the truck, causing it to fall defendants, and to which they could, before over and crush him. The evidence showed the timber was placed thereon, resort with that the street abutting on the dry shed of safety. It was therefore the duty of defendthe manufacturer where the boy was in- ants, in placing their timber upon the lot, jured was not a very much traveled street to do it in such a manner as to make it by footmen, but the manufacturer, in the reasonably safe and secure against injuries exercise of that care which the law requires to children coming there. of an ordinarily prudent person in the con- The owner of a lumber pile in a public duct of his business, was bound to antici- landing place was held not liable, however, pate that children, as well as adults, were in Lynch v. Knopp, 118 La. 611, 8 L.R.A. likely to be walking along the street, and (N.S.) 480, 118 Am. St. Rep. 391, 43 So. that a child of tender years might be tempt. 352, 10 Ann. Cas. 807, for the death of an ed to play with a loaded truck, or to indulge eight-year-old girl, caused by the fall of in such childish pranks as the one in ques-lumber upon her, due to the fact that other tion. The child was upon the street, where children had gone upon the lumber and disit had a right to be; and the manufacturer placed pieces of it, since the owner had no should not only have anticipated that chil. reason to suspect that children would do dren were likely to walk upon the street, that, and for the reason that the lumber but that they were also likely to turn aside pile was not such an object as to attract from travel and play and meddle with a children or excite their curiosity. 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

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that defendant was negligent in not con- , danger by furnishing them something else structing the protecting wall in such a to fall from, but to impose upon the defendway that it could not be climbed. It is ant the further duty of also guarding and suggested that spikes could have been placed protecting the additional guard rail or on it. Manifestly, if this had been done, fence. In our opinion, the retaining wall and plaintiff had been injured, there would in question was not such a dangerous inhave been greater reason for holding the strumentality or thing as to impose on the defendant liable. It is also suggested that defendant any liability for its original cona fence or a guard rail might have been struction or its failure to construct barriers constructed at the lower point of the wall. to prevent boys from climbing on it. It As this would have rendered access to the follows that the trial court properly suswall a little more difficult, the natural retained the demurrer to the petition. sult would have been to increase the number Judgment affirmed. of climbers, and not only add to their the use of the public except as they might supplied to it by the child toppled it over. have occasion to go there for the purpose of Fixing such a trap upon a street in an inbusiness; the public, otherwise than to that habited part of a city, with the strong extent, were not either expressly or implied. probability that children would be playing ly invited or allured to pass through them. about it at all hours of the day, was reckThe occasional passing through by persons less, culpable negligence. to reach a public street was not encouraged A builder who, under a permit from the by the defendant or in any way acquiesced city authorities, piled lumber in the highin, otherwise than as may be implied from way so negligently that it toppled over and not expressly forbidding it. The presence killed a boy playing on the sidewalk, was of children in the passageway was with held liable in Addis v. Hess, 29 Pa. Super. out the consent or even acquiescence of the Ct. 505. defendant, for it cannot be disputed that A boy does not become, as matter of law, generally they were driven out of the yard. a lounger by stopping in a street on his Under these circumstances the defendant way home, to rest and cool off, after finishought not to have been held responsible to ing a game which he had been playing in a the plaintiff for mere neglect in the mode of vacant lot, so as to prevent his recovering piling the lumber. The plaintiff was only a for injuries by the fall upon him of lumber volunteer, and not there within the scope of illegally piled in the highway. Kessler v. the

purpose of the way, or by any act of the Berger, 205 Pa. 289, 61 L.R.A. 611, 54 Atl. defendant induced to come into it. The ex- ! 887, 14 Am. Neg. Rep. 203. posure of such gangways, clearly intended for business uses alone, although in a

Telegraph poles and trees. populous locality, where children might be tempted, from curiosity or idle purpose, to A telegraph pole with guy wire attached go, is not suflicient to require the defend- and prongs exposed was, in Thompson v. ant either to fence his yard or pile his lum. Cumberland Teleph. & Teleg. Co. 138 Ky. ber with reference to the fact that children 109, 127 S. W. 531, held not to constitute an might be injured by mere neglect in its attractive or dangerous trap for little chil. piling; The court further stated that the dren, so as to render the telegraph company defendant ought not to be held to the duty | liable for injuries to a child who slipped, of reasonable care towards plaintiff in the striking the guy wire, in attempting to piling of the lumber, piling it so as to pre- climb the pole. vent any danger that would be likely to In holding a guy wire not a dangerous come to children who might naturally and instrumentality, attractive and alluring to reasonably be expected to frequent the children, within the meaning of the Turnlocality without a conscious purpose of mis- table Cases, the court in Mayfield Water & chief or conscious unlawful act. Plaintiff's Light Co. v. Webb, 129 Ky. 395, 18 L.R.A age could have no bearing except on the (N.S.) 179, 130 Am. St. Rep. 469. 111 S. W. question of contributory negligence; and if 712, stated that as long as electric light the defendant had been guilty of any wires are not put under ground, they must neglect of duty towards him, his tender be put upon poles: and where they are years might have shielded him from any placed above the street as high as 18 feet, imputation of carelessness.

the company should not be required to anIt is culpable negligence to pile lumber ticipate that children will climb up to the near a sidewalk so that a child, by apply. wires and get hurt. Guy wires are necesing slight force, may topple it over. Earl sary on high poles at street corners where v. Crouch, 40 N. Y. S. R. 847, 16 N. Y. Supp. the line turns. A guy wire placed on 770, affirmed in 131 N. Y. 613, 30 N. E. 864. high pole to keep it in place, or some such The court in the above case stated that there contrivance, cannot well be dispensed with. was abundant evidence that the lumber was Such a wire is not a dangerous instrumenpiled in a negligent, careless manner, in tality, attractive or alluring to children, stead of piling it so that the tiers would within the meaning the Turntable Cases. rest against and support each other; the tier The little boy was a trespasser upon the dethat fell was so piled that the slight force fendant's wire, and, being a trespasser, he

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cannot complain that the premises were un., power in a legitimate way is concerned, insafe. Children no less than adults, when tends to exert that power so as to secure, at they trespass upon the property of another, the hands of these public utility corporatake the risk unless the circumstances bring tions handling and controlling these exthe case within the principle of what is traordinarily dangerous agencies, the highknown as the Turntable Cases, where a est degree of skill and care. dangerous instrumentality is maintained, with knowledge, actual or constructive, that

Other structures or things. it is alluring to children and endangers them. A wire 18 feet above the ground, It was held in Northwestern Elev. R. Co. which can only be reached as this wire was, v. O'Malley, 107 Ill. App. 599, that the comcannot be said to fall within the exception pany could not be held liable under the docto the general rule.

trine of the Turntable Cases where an And the fact that a telegraph pole con- eight-year-old boy went under an elevated tained protruding spikes or foot rests start- railroad structure in process of erection ing from a point about 20 inches from the and was hurt by a piece of iron falling upon ground did not bring it within the turn- him, it appearing that he was not attracted table doctrine so as to render a power com- to the place of danger by the structure, or pany liable for injury to a child by falling by any work that was being carried on, and while attempting to climb the pole. The that he was not invited there expressly or court stated that it would be unwise to ex- by implication. The principle of the Turntend the doctrine of the Turntable Cases to table Cases, states the court, is that the cases of this character. It would seriously child cannot be regarded as a voluntary retard the material progress and cripple the trespasser because he is induced to come business interest of the country if persons into the place of danger by the defendant's owning and operating public utilities which, own conduct. from their very nature, require the use of So, where a ten-year-old boy climbed upon structures and appliances placed in prox- an elevated railway structure in search of imity to public highways, should be for- a ball, and while there stumbled against a bidden to use or maintain any structure or live wire, the railroad company

held appliance of a kind calculated to attract not liable in McAllister V. Jung, 112 m. and allure children to attempt their use as App. 138, under the doctrine of the Turnplaythings, and which, when so used, be- table Cases, where there was no evidence

dangerous. Simonton v. Citizens' tending to show that boys of tender years, Electric Light & P. Co. 28 Tex. Civ. App. or others, had been in the habit of climb. 374, 67 S. W. 530.

ing upon such a structure, and it appeared An electric railway company was held not that the wire was not exposed, unguarded, liable, in Johnston v. New Omaha Thomson or easy of access from the street, and that Houston Electric Light Co. 78 Neb. 24, 17 there was nothing on the surface of the L.R.A. (N.S.) 435, 110 N. W. 711, 113 N. W. roadbed or top of the structure attractive or 526, for injury to a boy by taking hold of a alluring to childish instincts, and where it live wire on a trolley pole located outside of appeared that the company had no reason a walk along a viaduct in a city. The court to anticipate that children or others would said that the structure was not of such a endeavor to resort to it at that place. The character as to be obviously attractive to difference between the case at bar and the children. And in a per curiam opinion, it Turntable Cases, where the place was open, was stated that the case appears to be quite easy of access, frequented by children, and unlike the Turntable Cases and others of in itself attractive, observed the court, was like kind, where children are injured by so wide that it could discover no ground of machinery and appliances attractive as comparison and no basis for the application playthings, and left unguarded in such of the doctrine of those cases. situations as to invite them to gratify their So, where a child climbed a ladder and impulses without knowledge or apprehen- / was killed by falling down a coal chute sion of danger.

maintained on a city street by a coal comIt was held in Temple v. McComb City pany, the company was held not liable in Electric Light & P. Co. 89 Miss. 1, 11 L.R.A. Hermes v. Hatfield Coal Co. 134 Ky. 300, (W.S.) 449, 119 Am. St. Rep. 698, 42 So. 23 L.R.A. (N.S.) 724, 120 S. W. 35), the 874, 10 Ann. Cas. 924, that an electric light infant being a trespasser, and the ladder company was bound to have reasonably ex- and chute being in nowise defective. The pected that small boys of the neighborhood court stated that this case fell within the would climb a little oak tree abounding in principle of Mayfield Water & Light Co. v. branches extending almost to the ground, Webb, 129 Ky. 395, 18 L.R.A. (V.S.) 179, and that the company was liable where a 130 Am. St. Rep. 469, 111 S. W. 712, supra, boy did climb the tree and came in contact under “Telegraph Poles," and that the case with one of the company's uninsulated did not fall within the principle of Branson wires, receiving injury. The court stated v. Labrot, 81 Ky. 638, 50 Am. Rep. 193, a that the immemorial habit of small boys to lumber-pile case. 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. I pipe left near the curb of a street by conThis court, so far as the exertion of its tractors, unblocked, and which started to

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 ajudi. would 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 Falling within the McAlpin Case, supra, had no application. There was nothing is that of Martin v. Cahill, 39 Hun, 445, about these pipes in the street so attractive where it is held that a painter's ladder hung to children, or so dangerous to them if at- horizontally, and left under the window of tracted, as to impose on defendant the duty a house while a coat of paint is drying, of taking precautions with a special refer- presents no invitation to a girl under nine ence to accidents to children. Children years of age to let herself down upon it, will romp occasionally about any appliance, so as to render the painter liable for intool, or device they have access to; but only juries to the child by a fall therefrom, not those which are apt to entice them into occasioned by the insecurity of the ladder danger impose on the owner the duty of itself, the child having been warned by him guarding against their intrusion. In fact, to keep off. the Turntable Cases are anomalous, and it Another case coming within the McAlpin is the practice of the court to carry their i Case, supra, is Kelly v. Smith, 29 App. Div. doctrine no further than the previous de- 346, 51 N. Y. Supp. 413, 4 Am. Neg. Rep. cision compelled.” So, of course (the court 668, which holds that no liability attaches observed), the mere laying of the pipe on to one who, in compliance with a statute, the slight incline proved in the case does not has provided the fire escape on his building create a condition of things to invoke the with a suitable ladder for reaching the turntable doctrine. Pipes placed in the ground, where the ladder is removed by boys street are not, of and within themselves, from a place of safety on the second balcony either so attractive to children and so im- and hung on the first balcony, from which minently dangerous to children as to au- it falls, causing fatal injuries to a seventhorize the application of the rule applied year-old child at play on it. to turntables and cases involving other in- Where a child was injured while playing herently dangerous and inherently attrac, on a pile of stones in an unfenced lot betive objects. The application of the rule longing to defendant, the defendant imposed the duty upon defendant to use held not liable in Latham v. Johnson, S2 special care as to children.

This was

a L. J. K. B. N. S. 258, [1913] 1 K. B. 398, burden not imposed by the law under the 108 L. T. V. S. 4, 77 J. P. 137, 57 Sol. Jo. facts of the case.

127, 29 Times L. R. 124, the doctrine of And while the doctrine of the Turntable attractive nuisance being held inapplicable, Cases, states the court in Devine v. Armour there being neither allurement, nor trap, & Co. 159 Ill. App. 74, is not limited in nor invitation, nor dangerous object placed Illinois to those nuisances which are auto- upon the land. matically dangerous to children seeking But where a railway company maintains merely amusement, nevertheless the owner in its freight yard an abandoned roundhouse of a dilapidated house cannot be held to a on the roof of which it knew boys were in duty to prevent children from coming on the habit of playing, the company was, in the premises to gather wood by tearing it Osborn v. Atchison, T. & S. F. R. Co. 86 down, especially in the absence of any proof Kan. 440, 121 Pac. 364, held liable on the that children, without express permission, theory of attractive nuisance where a boy were in the habit of indulging in such was killed in the act of climbing the smokepractice.

stack, which fell on him. Where the owner of a tenement building An owner was held not liable in Harris v. was held not liable for the death of a nine- Cowles, 38 Wash336, 107 im. St. Rep. 847, year-old boy who went out on the platform So Pac. 537, under the turntable doctrine, of a fire escape and fell through an insecure for injury to a child by being caught in a trapdoor, the court in McAlpin v. Powell, revolving door maintained at the entrance 70 N. Y. 126, 26 Am. Rep. 561, in distin- of a building, there being no allegation guishing the Turntable Cases from this, showing that the owner was, at the time, stated that a child is permitted to go into under any relations of duty to the child the public streets, which are open to persons other than that which he owed to an ordiof all ages, without being chargeable with nary trespasser, or, at most, to a negligence, and, being there, if led by at- licensee, and there being no allegation showtractions into danger, even although it maying that the door was not so constructed be that, under some circumstances, an ac- as to safely answer the purposes for which tion would lie for injuries sustained there. it was intended when used for that purpose by, such a case has no similarity to one only; viz., for passage to and from the where the child is left without anyone to building. It would be difficult, said the take special charge of him, and escapes i court, to apply the turntable rule to a device through an open, unguarded window to a of this kind, intended, as it was, for con

was

mere

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- i 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 manifestìy 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 an- The doctrine of the Turntable Cases was danger the security of property interests. held inapplicable in Witte v. Stifel, 126 Mo. It is aptly suggested by respondent in his | 295, 47 Am. St. Rep. 668, 28 S. W. 891, brief, that swings, teeter boards, lumber where the owner of a building in the process piles, fences, gates, walls, buildings, trees, of construction was held not liable for the hanging on vehicles, and numerous other death of a seven-year-old boy who, while at similar things are attractive to children. play, pulled a loose stone over upon him in It will therefore be seen that if this doctrine attempting to get upon a window sill and should be made one of general application was thereby killed, no inducement or invitafor the protection of children against every tion, implied or otherwise, being held out thing that may be especially attractive to to him. The court said that it was not them, it would result in requiring all prop- shown in the case that the defendant knew erty holders to assume toward children who of the dangerous condition of the stone, or may be attracted to their premises a degree that children were in the habit of resorting of duty and care which properly belongs to to the building for play; nor was there anyparents or guardians.

thing about the construction unusual or The fact that cross steps on a bridge pier unique, which would be attractive to chilcould be used as ladders, and the fact that dren. The child was a mere intruder and pigeons were in the habit of rearing their trespasser, and the defendant owed him no young on the beams and around the top of duty except the negative one not to wantonthe bridge, rendering the bridge a place at- ly or maliciously injure him. tractive to small boys, will not render an The following cases do not discuss the atelectric power company liable for injury to tractive-nuisance doctrine, but their facts a boy who, in climbing the bridge, comes in are such as to warrant their inclusion in contact with a live wire, 30 feet above the the note: ground, and is thereby hurt, since the things Thus, where persons left stringers or that constitute the attraction are features | boards across a canal where they had been connected with the river, the bridge, and the working, and a child four and one-half years pigeons, which are matters for the exist. old wandered to the place, fell off of one of ence of which the company is not responsi- the boards, and was drowned, it was held ble, and the accident is not one which the in Blum y. Weatherford & C. Bros. 121 La. company should have anticipated. Graves | 298, 46 So. 317, that the stringers were not v. Washington Water Power Co. 44 Wash. , attractive to children, and that the defend675, 11 L.R.A.(N.S.) 452, 87 Pac, 956. In ants were not liable. The court stated that the above case the court stated that if the a person not in any way negligent, not suscompany's responsibility extended this far, pecting and without cause to suspect that it would be difficult to say where a limit a child of tender years would leave the playcould be fixed. In this state we see electric ground and attempt to cross on stringers wires stretched on poles through our towns that he had placed across the canal, cannot and cities, and along highways, through be held liable for damages. If the contrary farms, orchards, and forests in the country. | were the rule, then all boards across a small Can it be held that companies operating stream, canal, or drain would have to be these wires must keep them out of reaching removed immediately after they had been distance of every high tree, building, fence, used, although not intended as a crossing wall, pole, or other place of elevation into place, and not attractive at all as such. or upon which a boy may possibly be allured | It is held in Williamson v. Gulf, C. & by birds' nests or other attractions? Sup S. F. R. Co. 40 Tex. Civ. App. 18, 88 S. W.

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