ground, engaged with other children in making tar balls, and, by standing on a piece of concrete which he placed for the purpose, reached into one of these barrels and burned his hand in the hot tar.

164. Hot water.

Injury to boy by discharge of hot water from blow-off pipe, see HARDY V. MISSOURI P. R. Co. (reported herewith) ante, 1, under heading, "Conduit."

Leaving unguarded a pool of hot water the presence of which is perfectly obvious is not negligent as to a child who knows that hot water will burn. Brinkley Car Works & Mfg. Co. v. Cooper (1901) 70 Ark. 331, 57 L.R.A. 724, 67 S. W. 752.

In Brinkley Car Works & Mfg. Co. v. Cooper (1895) 60 Ark. 545, 46 Am. St. Rep. 216, 31 S. W. 154, an action for injuries by a six-year-old boy burned by stepping into a pool of hot water let out from a steam boiler, alleged to have been concealed by trash and bark floating on its surface, it was held that the jury should have been instructed that, in determining whether the defendant was liable for the injuries received by the child, they should consider whether it appeared. from the evidence that the pool was attractive to children of his age, and whether it was or ought to have been known to the owner, and whether from all the circumstances it appeared that the owner, as a reasonably prudent person, ought to have anticipated that children of the age of the plaintiff would probably receive such injury as he did, by reason of the situation and condition of the pool at the time he received his injury.

And in the same case, upon a subsequent appeal in (1901) 70 Ark. 331, 57 L.R.A. 724, 67 S. W. 752, it was said that before the property owner could be made liable for the injury two things were necessary: First, it must be shown that the property owner had noticed that the boy or other children were likely to come upon his premises; and, second, that by reason of the concealed nature of the pool, or want of notice on the part of the children of the condition of the water, the

injury to them ought reasonably to have been foreseen upon the part of the owner as a consequence of leaving the pool in that condition.

Hot water in a ditch cannot be said to be an allurement sufficient to attract a child from a path, to his injury. Etheredge v. Central of Georgia R. Co. (1905) 122 Ga. 853, 50 S. E. 1003.

In Palermo v. Orleans Ice Mfg. Co. (1912) 130 La. 833, 40 L.R.A. (N.S.) 671, 58 So. 589, where, in consequence of an accident to the defendant's boiler, hot water ran into the street gutter, which attracted the curiosity of children in the vicinity, to prevent injury to whom defendant stationed at the gutter a watchman, who left his post after the children had gone to school, the defendant was held liable for injury to a four-year-old boy who afterwards fell into the gutter.

In Putney v. Keith (1901) 98 Ill. App. 285, it was held that the daughter of the owner of a house was not liable for the death of a two-year-old child invited there, who, in running through the rooms of the house, fell into a dish of hot water placed on the floor of the kitchen by the defendant in the discharge of her household duties. Waterman, J., in delivering the majority opinion, said that it was not necessarily negligent to have about the house things that attracted the attention of children, and by which they might be injured. If such things were the ordinary utensils and appliances made use of by prudent people, and they were kept and used in such manner as they ordinarily were by prudent people, such keeping and use were not negligence in respect to adults or infants. Dibell, J., in a dissenting opinion, however, said that a dish of hot water was to so young a child in the nature of a dangerous pitfall, and the fact that it was there for a proper domestic purpose did not excuse the defendant for her failure so to guard it as to protect the child.

In Mergenthaler v. Kirby (1894) 79 Md. 182, 47 Am. St. Rep. 371, 28 Atl. 1065, it was held that a twelve-yearold boy who had gone on defendant's premises for the purpose of stealing

type metal and lead scrap from a junk box near the factory wall had no cause of action for an injury caused by the sudden discharge of steam and hot water upon him when the engineer blew off the boiler.

In Schmidt v. Kansas City Distilling Co. (1886) 90 Mo. 284, 59 Am. Rep. 16, 1 S. W. 865, 2 S. W. 417, it was held that a recovery could not be based on evidence that a three-year-old child lost its life by having fallen into a pool of hot water on defendant's premises, formed under an escape pipe used in blowing out the boilers, which emptied halfway down the bank of a slough, which was a muddy, filthy place, owing to the discharge of waste and offal into it from a distillery and cattle barns, the pool being 60 feet from the public road and over 200 feet from the nearest dwelling houses, and there being nothing to show that the escape pipe at its outlet, or the place into which it discharged boiling water, was attractive to children, or that children were in the habit of resorting there for amusement or otherwise.

The case of Schmidt v. Kansas City Distilling Co. (Mo.) supra, in so far as it implies that a duty to fence the pool in question was owed to children who might be attracted thereto, is, in effect, overruled in Barney v. Hannibal & St. J. R. Co. (1895) 126 Mo. 390, 26 L.R.A. 847, 28 S. W. 1069, as is pointed out in Rallo v. Heman Constr. Co. (1921) 291 Mo. 221, 236 S. W. 632.

In Chicago, R. I. & P. R. Co. v. Wright (1917) 62 Okla. 134, 161 Pac. 1070, a verdict in favor of a boy who was burned by the discharge of hot water from a pipe used for the purpose of blowing out engines, beyond the end of which a considerable pool of water had formed which was attractive to children, was sustained.

In Kinchlow v. Midland Elevator Co. (1896) 57 Kan. 374, 46 Pac. 703, where a boy of ten, employed by one having the privilege of sweeping out grain cars after they had been unloaded at an elevator, stepped, for the purpose of warming his feet, upon the cover of an exhaust steam barrel sunk in the ground outside the elevator building, when the cover tipped and

let him down into the hot water in the barrel, and it appeared that there was no guard or railing about the barrel, and no special warning of danger in reference to it, although on each corner of the elevator building a sign was nailed about 14 feet from the ground, with the words, "Danger, keep away," it was held that the negligence of the elevator company in maintaining the barrel as it was, was for the jury.

In Lavoie v. Nashua Gummed & Coated Paper Co. (1918) 79 N. H. 97, 105 Atl. 4, a landowner permitting children to come on its premises to pick up paper was held not liable for the death of a seven-year-old child who went under its loading platform to get some paper, and fell into a barrel sunk into the ground, containing hot water discharged from steam pipes, on the ground that the child was not an invitee.

In Briscoe v. Henderson Lighting & P. Co. (1908) 148 N. C. 396, 19 L.R.A. (N.S.) 1116, 62 S. E. 600, the fact that machinery constantly in motion could be seen through the doors and windows of a building on a lot unfenced from a highway was held not to render the owner liable for injury to a child falling into an insecurely covered well of hot water in an open space some distance from the building, where there was nothing to show that children had ever been allured to the premises by the machinery, or that the injured child was so allured.

In Gordon v. Snoqualmie Lumber & Shingle Co. (1910) 59 Wash. 272, 29 L.R.A. (N.S.) 88, 109 Pac. 1044, it was held that a barrel to receive the exhaust steam from a mill, in plain sight, accessible only on one side, and filled with hot water from which steam continually arose, and to which children and others in the neighborhood were accustomed to go for water, was held not to be an attractive nuisance so as to render the owner liable for the scalding of a child, who went to it for water, by a plug coming out of the bunghole, on the ground that the danger was, under the circumstances, not reasonably to be apprehended.

165. House.

See "Buildings;" "Vacant house."
Election

booth carted through streets as dangerous attraction, see Rice v. Buffalo Steel House Co. (1897) 17 App. Div. 462, 45 N. Y. Supp. 277, 3 Am. Neg. Rep. 251, under headings, "Vehicles in motion."

Injury to child by tackle used in moving, see Rose V. Habenstreit

(1917) 9 Ohio App. 23, 27 Ohio C. A. 564, affirming 20 Ohio N. P. N. S. 269, under heading, "Block and tackle."

166. Ice.

Drowning of child going upon ice, see National Metal Edge Box Co. v. Agostini (1919) 169 C. C. A. 195, 258 Fed. 109 (2d C.), under heading, "Canal;" Heimann v. Kinnare (1901) 190 Ill. 156, 52 L.R.A. 652, 83 Am. St. Rep. 123, 60 N. E. 215, reversing (1898) 73 Ill. App. 184; Harper v. Topeka (1914) 92 Kan. 11, 51 L.R.A. (N.S.) 1032, 139 Pac. 1018; Arnold v. St. Louis (1899) 152 Mo. 173, 48 L.R.A. 291, 75 Am. St. Rep. 447, 53 S. W. 900; Kohler v. W. J. Jennison Co. (1915) 128 Minn. 133, 150 N. W. 235, 10 N. C. C. A. 243, under heading, "Ponds."

Injury to child going under car after pieces of ice, see Rushenberg v. St. Louis, I. M. & S. R. Co. (1891) 109 Mo. 112, 19 S. W. 216, under heading, "Standing cars."

167. Ice wagon.

See Conlon v. Bailey (1895) 58 III. App. 261, under heading, "Vehicles in motion."

168. Iron casting.

Injury by tipping over of, see Vick v. Morin (1915) 21 B. C. 8, 7 West Week. Rep. 1053, 30 West. L. R. 412, 22 D. L. R. 29, under heading, “Unstable equilibrium."

169. Iron girders.

In Louisville R. Co. v. Esselman (1906) 29 Ky. L. Rep. 333, 93 S. W. 50, one who had stacked iron girders on edge in a street was held liable for an injury sustained by a boy of eleven who had climbed onto the pile, by the turning over of one of them upon him. In Pueschell v. Kansas City Wire 36 A.L.R.-14.

& Iron Works (1899) 79 Mo. App. 459, it was held that a building contractor occupying a portion of the street, properly protected by barricades and fencing, for the deposit of building materials, was not liable for injury to a boy of thirteen, who got upon a pile of girders which had just been unloaded, and was walking thereon when the top one slipped and fell, injuring his foot.

A building contractor piled on the highway a number of iron girders, weighing 1,000 pounds each, one of which, at the time of the accident, had become dislocated from its parallel position with the others, and was in a position diagonally along the side. of the pile, edgewise, with the upper end on a piece of plank and the lower end near the bottom of the pile. The asphalt pavement near this pile was much resorted to by children of the neighborhood for roller skating and other play, and children constantly played on the piles, to the knowledge of the defendant. Several little girls were playing about the pile when a little girl four and one-half years old joined them and sat down on the lower end of the dislocated beam, when another girl jumped onto the plank on which the upper end of the beam was resting, causing it to fall over and injure the little girl. Actions were brought, by the injured girl for the injury, and by her father for loss of services, resulting in judgments in favor of the plaintiffs. The father's suit having been appealed by the defendant, the highest state court held in Friedman v. Snare & T. Co. (1905) 71 N. J. L. 605, 70 L.R.A. 147, 108 Am. St. Rep. 764, 61 Atl. 401, 2 Ann. Cas. 497, that the contractor was under no duty so to arrange and maintain the girders as to render them safe for children to play or sit upon. The court said: "In the absence of circumstances denoting invitation, one thus using the private property of another for his own purposes may be either a licensee or a mere trespasser, depending upon circumstances. In neither case is there any duty incumbent upon the proprietor to make his property safe for such use. Aside

from the notion that temptation is equivalent to invitation (with which we cannot concur), there is nothing in the mere existence of building materials as an obstruction in the street that denotes an invitation to the passer-by, or to the idler or playful child, to use the materials for his own purposes. The doctrine of invitation relates to the entry upon or user of lands. The very fact that materials piled upon the ground constitute a hindrance to travel negatives the idea of invitation in the ordinary sense. The case for the plaintiff rests upon the theory that since these girders were so arranged as to be attractive to children, and since the injured child, with her companions, was using them as a place for play, or as a resting place during or after play, the proprietors of the premises, or the defendants, upon whom, as independent contractors, the matter had been devolved, owed a duty to the children to so arrange the girders as to render them safe for their use. With this view we do not agree. No doubt, where a duty exists to take care with respect to the safety of children of tender years, their very age must be taken into account, so that what might be reasonable care with respect to the safety of adults, who are capable, to some extent, of looking out for themselves, might not be reasonable care with respect to children. But in the present case the very question is whether any duty existed, and we are not able to see that the age of the child is pertinent upon this inquiry. That the party injured in this case was less than five years of age did not at all tend to give her any property interest or right of user in the defendant's girders. Whether she used them as licensee or as trespasser, in either case there was no duty upon the owner to exercise active care with respect to her safety." From this conclusion two members of the court dissented.

As a result of this decision, a new trial was granted in the suit brought by the child, who thereupon discontinued the suit and brought action in the Federal courts, recovering a

judgment, on appeal from which it was held by the circuit court of appeals, in (1909) 40 L.R.A. (N.S.) 367, 94 C. C. A. 369, 169 Fed. 1, 21 Am. Neg. Rep. 311 (3d C.), that the decision in the state court had not so clearly established a settled rule in the premises that the Federal courts were bound to follow it, and accordingly affirmed the judgment. A petition for writ of certiorari was denied in (1909) 214 U. S. 518, 53 L. ed. 1065, 29 Sup. Ct. Rep. 700.

170. Iron rails.

In Ramsey v. National Contracting Co. (1900) 49 App. Div. 11, 63 N. Y. Supp. 286, one piling iron rails in the street was held to be under a duty to exercise care to render the pile reasonably safe for children who might sit on it.

In Murnane v. Third Ave. R. Co. (1918) 172 N. Y. Supp. 188, it was held to be a question for the jury whether a street railroad company was guilty of culpable negligence in piling rails in a public street, one of which rested at about its center upon a wooden block, forming a seesaw, so as to be liable to a seven-year-old child who was sitting upon the pile when other children jumped on the end of the rail, causing the other end to tip up, so that, when they stepped off their end, it came down upon the plaintiff's hand.

171. Irons.

In Dwyer v. Missouri P. R. Co. (1882) 12 Mo. App. 597, evidence that a railroad company erected on uninclosed ground near its track a low trestle to which children habitually resorted to play, and placed irons upon it in such a manner as to be upset by a child's weight, and that a child threw off one of these irons and was killed by its fall, was held to have a tendency to show culpable negligence on the part of the company.

172. Iron wheels.

In American R. Exp. Co. v. Crabtree (1921) 271 Fed. 287 (6th C.). where an express company maintaining an office at a railroad station. where the children of the town were

in the habit of playing, left an iron wheel received by it, 42 inches in diameter, with a 10-inch rim, weighing about 200 pounds, standing on the platform tilted over against the building, instead of putting it in the warehouse, and two boys tilted it to an upright position and rolled it up and down until they tired of it and left it, and two little girls came along and undertook to roll it, when it fell upon and killed the youngest one, eight years old, a verdict for the plaintiff in an action brought for her death was sustained. The court said: "There was a place where the wheel could have been stored and where it would have been entirely safe. If it had been left standing on edge, it would be clear that it had taken the character of an attractive nuisance. The event proved that it was not tilted over so far but that it could be easily restored to its dangerous position, and this by the efforts of children whose natural and ordinary conduct in respect thereto defendant was bound to anticipate. If it had been laid down. in a horizontal position, or leaned over far enough so that it would have been beyond the power of boys to set it upright, there would be a different question."

In Midland Valley R. Co. v. Littlejohn (1914) 44 Okla. 8, 143 Pac. 1, it was held that a railroad company could not be held liable to a boy of four, who in playing upon a depot platform pulled over upon himself an iron flywheel about 30 inches in diameter and weighing about 365 pounds, which was standing upon its flange, about 8 inches wide, in the absence of a finding that the failure to take precaution against injury to children playing there amounted to wilfulness or wantonness.

and other machinery; that there were a large number of pulley wheels of solid iron, 36 inches in diameter, with 4-inch rims, standing in a row one against another in an upright position, and that while an eight-year-old boy was playing there with an attractive little girl, who was on the premises by invitation, one of the wheels toppled over upon him and injured him.

173. Ladder.

Of fire escape, see "Fire escape."

174. Lantern.

In Brown v. Minneapolis (1917) 136 Minn. 177, 161 N. W. 503, the doctrine of attractive nuisance was held not to render a city liable where, it having made an excavation in the street and placed near it a red-light lantern as a warning, a two-year-old boy in some way fell into the trench with the lantern, which set his clothing afire. The court said: "A lantern is some attraction to a child and involves some danger, but we cannot regard a common lantern as being of such attraction or such an inherent danger as to bring the case within the rule of the class of cases known as Turntable Cases."

175. Latticed pillar.

Injury to child by electric wire in proximity to, see Stedwell v. Chicago (1921) 297 Ill. 486, 17 A.L.R. 829, 130 N. E. 729, under heading, "Electric wires."

176. Lid.

See Hughes v. Macfie (1863) 2 Hurlst. & C. 744, 159 Eng. Reprint, 308, 33 L. J. Exch. N. S. 177, 10 Jur. N. S. 682, 9 L. T. N. S. 513, 12 Week. Rep. 315, under heading, "Unstable equilibrium."

177. Lift.

See "Elevators."

178. Lime.

Burning of child by slacking lime, see "Mortar bed."

As proximate cause of injury, see Beetz v. Brooklyn (1896) 10 App. Div. 382, 41 N. Y. Supp. 1009, IV. j, supra.

In FITZPATRICK V. ROSE DONAHUE