App. 194, 187 Pac. 101, under heading, "Standing cars."

322. Streams and rivers.

Bridges across, see "Bridges;" "Footbridges;" "Swing bridges and drawbridges."

Pools in, see "Pools."

Drowning of child playing on sand pile near river, see Rost v. Parker Washington Co. (1913) 176 Ill. App. 245, under heading, "Sand pile."

In Shalata v. Rodgers (1919) 189 App. Div. 228, 178 N. Y. Supp. 494, it was held that a contractor for the construction of a sewer along a street terminating at a river was under no duty to provide safeguards to prevent people from going out on the exposed top of the sewer, which was about 10 feet wide and 1 foot above the surface of the river at high water, so as to render him liable for the drowning of a six-year-old boy who went out on top of the sewer and fell into the river.

In Charvoz v. Salt Lake City (1913) 42 Utah, 455, 45 L.R.A. (N.S.) 652, 131 Pac. 901, it was held that a city was not, on the theory of attractive nuisance, liable for the death of a seventeen-months-old child which was drowned in a shallow stream, only a few inches deep, of warm mineral water which the city permitted to flow in an open ditch along the roadside. The court said: "How is a stream of water which gushes forth from the mountain side, and in all probability has done so for centuries, a thing which falls within the doctrine illustrated in the Brown Case? There is absolutely nothing artificial about such a stream. The only thing that is artificial is the ditch in which the water flows, and if that had not been carved out by man the force of the water would soon have carved one out of the earth. This stream is, therefore, no more artificial than any other stream of water of similar size would be. It is contended, however, that its attractiveness and consequent danger lurk in the temperature of the water. Let it be conceded for argument's sake that warm water is more attractive to children, especially in certain seasons of the year, than cold water would be.

Yet the question still remains, At what temperature does water become or cease to be especially attractive to children? Is it at the temperature of 50, 60, 70, 80, 90, or more degrees F.? Is it not a matter of common knowledge that in the hottest portion of the year, when children are most likely to seek water, the natural inclination of all is to seek cool water, rather than hot or even warm water? Treating the subject, therefore, from the standpoint of common knowledge and experience, a stream of water of approximately the temperature of the surrounding atmosphere, or a little cooler perhaps, would, during the summer season, be more attractive to children than would be water any considerable number of degrees warmer than that. Moreover, any stream of water of the size of the one in question would be quite as attractive and alluring to children of tender age as the one in question. This would also be so whether the stream was natural or what might be called an artificial one. or whether the water was running to waste, or was at some point, at either end of the ditch or along it, being used for some useful purpose. In view of this we are required to take judicial notice of the fact that there are perhaps thousands of miles of small streams that flow in ditches or flumes in the cities, towns, and country districts within the state of Utah, which are quite as attractive and alluring to children as the stream in question. Such a stream is, therefore, a most common and natural thing, and not uncommon and novel."

And in Stevenson v. Glasgow Corp. [1908] S. C. 1034, 45 Scot. L. R. 860, 16 Scot. L. T. 302, a municipality was held not liable for the drowning of a child in a river while playing in a public park.

But in Gibson v. Glasgow Police Comrs. (1893) 20 Sc. Sess. Cas. 4th series, 466, 30 Scot. L. R. 469, the public authority was held negligent in leaving unfenced a brook running alongside a public place where children played.

323. Street cars.

Injury to child playing on, see

George v. Los Angeles R. Co. (1899) 126 Cal. 357, 46 L.R.A. 829, 77 Am. St. Rep. 184, 58 Pac. 819, 6 Am. Neg. Rep. 420; Denver City Tramway Co. Nicholas (1906) 35 Colo. 462, 84 Pac. 813, 20 Am. Neg. Rep. 16; Gay v. Essex Electric Street R. Co. (1893) 159 Mass. 238, 21 L.R.A. 448, 38 Am. St. Rep. 415, 34 N. E. 186; Hall v. International R. Co. (1918) 184 App. Div. 925, 170 N. Y. Supp. 1084, affirmed without opinion in (1918) 227 N. Y. 619, 125 N. E. 919; Kressine v. Jamesville Traction Co. (1921) 175 Wis. 192, 184 N. W. 777, under heading, "Standing cars."

Injury to child attempting to catch. ride on, see Jefferson v. Birmingham R. & Electric Co. (1897) 116 Ala. 300, 38 L.R.A. 458, 67 Am. St. Rep. 116, 22 So. 546; Rasimas v. Chicago R. Co. (1921) 223 Ill. App. 288; Hestonville Pass. R. Co. v. Connell (1879) 88 Pa. 520, 32 Am. Rep. 472, under heading, "Moving cars."

Injury to children by starting up of repair car, see Taylor v. Dumbarton Tramways Co. [1918] S. C. 96, 55 Scot. L. R. 443, [1918] 1 Scot. L. T. 391-H. L., under heading, "Standing cars."

In Denison & S. R. Co. v. Carter (1904) 98 Tex. 196, 107 Am. St. Rep. 626, 82 S. W. 782, it was said that the doctrine of the Turntable Cases is inapplicable to the mere act of allowing children to get upon street cars which are fitted up and used for the conveyance of all classes of persons, old and young, experienced and inexperienced, but that actionable negligence must consist of something more, such as want of proper care in guarding the safety of those entering such vehicles and getting on or off or in traveling on them.

324. Stringer.

Used as footbridge, see Marnock v. Simpson (1906) 10 Del. Co. Rep. (Pa.) 119, under heading, "Footbridge."

325. Stringing wires.

Injury to child by apparatus used in stringing wires, see Ashbach v. Iowa Teleph. Co. (1914) 165 Iowa, 473, 146 N. W. 441, Hall v. Missouri & K. Teleph. Co. (1910) 141 Mo. App. 183, 124 S. W. 557, and Kelly v. Southern Wisconsin R. Co. (1913) 152 Wis. 328,

44 L.R.A. (N.S.) 487, 140 N. W. 60, under heading, "Block and tackle."

In Haynes v. Seattle (1912) 69 Wash. 419, 125 Pac. 147, a city whose employees, in stringing an electric wire, placed a coil of wire at the foot of the pole in a street next to an unfenced school yard, passing one end of the wire over a cross arm and drawing it along the poles where it was intended to go by means of a team of horses, without putting watch or guard of any kind upon the unwinding coil, was held liable to a boy who, with other boys, amused himself by grasping hold of the wire and allowing himself to be hoisted up a little ways, and who, when he jumped down, stepped in the middle of the coil, so that the wire wrapped around his legs and drew him over the pole.

326. Swing.

See "Circle swing."

327. Swing bridges and drawbridges. In Gavin v. Chicago (1880) 97 Ill. 66, 37 Am. Rep. 99, it was held that a city was under no duty to make a swing bridge safe for children, so as to render it liable for injury to a boy who, while jumping on and off while the bridge was moving, fell and had his arm caught and crushed between the bridge and the abutment.

In Maginnis v. Brooklyn (1889) 26 N. Y. S. R. 689, 7 N. Y. Supp. 194, affirmed without opinion in (1891) 126 N. Y. 644, 27 N. E. 852, it was held that the liability of a city for injury to a boy by a closing drawbridge could not be predicated of the fact that the gate under which the boy crawled to get upon the bridge was 20 inches from the ground, such gate being amply sufficient to protect foot travelers on the highway.

It is for the jury to determine whether a railroad swing bridge located in a populous district of the city was a dangerous structure, in which the railroad company should reasonably have anticipated that a child might catch his foot while attempting to jump upon it, and whether its servants in charge of such bridge used ordinary and reasonable care and precaution to prevent the happening

In Iamurri v. Saginaw City Gas Co. (1907) 148 Mich. 27, 111 N. W. 884, a tank wagon used by a gas company in removing the drip or refuse from the sink pots along its gas mains, and which had on the top of the tank a vent hole 1 inches in diameter, diameter, closed by means of a metal plug which screwed into place, was left standing overnight in a public street, near the barn where the horses were kept. The plaintiff, a boy five and one-half years old, and a companion between six and seven years of age, climbed upon it. They were driven off once by an employee of the defendant, but climbed back again as soon as he went away. Plaintiff's companion lighted a match and dropped it in the vent hole, causing an explosion. The court being equally divided, a judgment for the plaintiff was affirmed. McAlvay, Ch. J., in his opinion in favor of affirmance, distinguished between a trespasser on land and one upon a, drip tank left in a public highway, and quoted with approval the following language from Wharton on Negligence, 2d ed. § 112: "It is negligence to leave such an instrument in a place of public access, where persons are expected to be constantly passing and repassing, and where such persons are not required to be on their guard, . . . but it is not negligence to leave such an instrument in a private inclosure, which, from its very privacy, excludes the public, and puts on their guard all who enter.'" Hooker, J., however, said: "The consequences to this child would have been the same had this wagon stood across the walk upon private ground. It would have been just as attractive, and he would have been just as much, and no more, a trespasser upon the wagon. In our judgment, an attempt to discriminate

between rights of a trespasser when the wagon was in the highway, and when it was on private ground, results in nothing more than a distinction without a difference." Continuing, he said: "We are of the opinion that it cannot be denied that these boys were trespassers when they climbed on this wagon, as an adult would have been, and that the one who applied the match, at least, is liable for any damage he may have done to the gas company. It seems incongruous that he should at the same time have a cause of action for damages against the gas company for not preventing his trespass."

331. Tar.

See "Hot tar."

332. Telephone cable.

Injury to child by apparatus used in stringing, see Ashbach v. Iowa Teleph. Co. (1914) 165 Iowa, 473, 146 N. W. 441, under heading, "Block and tackle."

333. Telephone pole. See "Poles."

334. Telephone wire.

See "Wires."

335. Third rail.
See also "Elevated railroad."

In Riedel v. West Jersey & S. R. Co. (1910) 28 L.R.A. (N.S.) 98, 101 C. C. A. 428, 177 Fed. 374, 21 Ann. Cas. 746, (3d C.), where a boy of seven, playing with companions of about the same age in a back yard abutting upon the right of way of an electrically operated railroad, seeing some flowers growing on the other side of the track, unbolted a gate in the fence, and, in crossing the track, came in contact with the exposed third rail, which in size and appearance was indistinguishable from the other rails by a boy of the immature age of the plaintiff, it was held there was nothing to bring the case within the doctrine of the Turntable Cases, the railroad property being duly guarded by a fence, the gate of which was fastened by a bolt, and there being no evidence that there was anything to allure or entice children to go upon the railroad

premises to the place where the accident occurred, and none of the children had ever been in the habit of entering upon them.

336. Threshing outfit.

In J. I. Case Threshing Mach. Co. v. Burns (1905) 38 Tex. Civ. App. 412, 86 S. W. 65, it was held that one moving a threshing outfit, drawn slowly by a traction engine through the streets, discharged his duty to children of tender age who attempted to catch rides, by driving them away, and was not liable for injury to a sevenyear-old boy, received when he ran between the separator and the tank, to cross over.

337. Tier of shelves.

See "Shelves."

338. Ties.

Act of other children in causing ties to fall, as proximate cause of injury, see Foster v. Lusk (1917) 129 Ark. 1, 194 S. W. 855, 17 N. C. C. A. 361, in IV. j, supra.

In Great Northern R. Co. v. Willard (1917) 151 C. C. A. 564, 238 Fed. 714 (9th C.), a railroad company was held not liable for the falling of ties upon a boy from a pile stacked on its right of way by the person selling to the company, upon which children had played, where it appeared that the pile had withstood the climbing of other boys for some weeks so that there was no reason to apprehend injury therefrom.

In Foster v. Lusk (Ark.) supra, a complaint alleging that defendants had permitted a third person to pile crossties on its property; that one of the piles was so constructed that it would easily topple over; that such. pile was near a pile of sand, which was very attractive to children and did attract plaintiff, four years of age, and other children there to play; that the attractiveness of the sand pile and the danger of the situation were known to the defendants, or could by the exercise of ordinary care have been known, and that the plaintiff was injured while playing in the sand pile by the falling down of the stack of ties, occasioned by the acts of other

R. Co.

In Kramer v. Southern (1900) 127 N. C. 330, 52 L.R.A. 359, 37 S. E. 468, an action to recover damages for the death of a nine-year-old boy who, in climbing upon a pile of crossties in a public street, pulled some of them over upon himself, on the theory that the defendant's negligence grew out of the obstruction of a public street, the court said that if the crossties had been piled upon the defendant's own premises instead of in the street, and the defendant had no actual knowledge that the children were in the habit of playing on the pile, the law would have imposed no duty upon the defendant to look out for their safety by having the ties piled with a view to that end, in such case the principle announced in the Turntable Cases not being applicable.

In Missouri, K. & T. R. Co. v. Edwards (1896) 90 Tex. 65, 32 L.R.A. 825, 36 S. W. 430, reversing (1895)

Tex. Civ. App. —, 32 S. W. 815, a railroad company was held not liable for injury to a child upon whose foot a bridge tie fell from a pile in its yard which she was attempting to climb, where it appeared that the yard was fenced except on the side along the railroad track, and that the servants of the company always ordered away any children found there. The court also held that there was no peculiar allurement about such a yard, so as to bring it within the doctrine of the Turntable Cases.

old boy, while playing upon a pile of ties, piled partly upon a vacant lot and partly upon the adjoining sidewalk for use in constructing a street railway, was injured while he was getting down from the pile by a tie falling upon his leg, it was held error to direct a verdict for the defendant, on the ground that it should have contemplated that this stack of ties on a public sidewalk in the residential portion of a street might attract children to such an extent as to cause them to climb thereon to play.

In Jenkins v. Great Western R. Co. [1912] 1 K. B. (Eng.) 525, 81 L. J. K. B. N. S. 378, 105 L. T. N. S. 882-C. A., where it appeared that children were in the habit of coming on the railway premises to play on a pile of sleepers, but it was not shown that any of them ever went on to the main line, and a child two and one-half years old went on such line and was injured, it was held that the railway company was not liable, on the ground that the license to enter its premises, if any, was limited to the pile of sleepers.

339. Timber.

Pile of, see "Lumber pile."

340. Tipping over.

Injury to child by tipping over of something, see "Unstable equilibrium."

341. Torpedoes.

In St. Louis & S. F. R. Co. v. Williams (1911) 98 Ark. 72, 33 L.R.A. (N.S.) 94, 135 S. W. 804, where a boy, seeing a brakeman place a torpedo on the track for the purpose of signaling any train which might come along, removed it and carried it to another boy, who was injured in exploding it, it was held that the doctrine of the Turntable Cases did not apply.

In Louisville & N. R. Co. v. Hart (1902) 24 Ky. L. Rep. 1123, 70 S. W. 830, a railroad company was held not liable for injury to an eight-year-old boy who took a signal torpedo from a track where it had been rightfully placed for the purpose of being exploded by an approaching train, carried it home, and set it off, since no

greater safeguards could have been adopted than were adopted.

In Mershel v. Louisville & N. R. Co. (1905) 121 Ky. 620, 85 S. W. 710, it was held that a cause of action was stated against a railroad company by a compaint alleging that its agent or servant had placed a torpedo on the sidewalk in a street where children were accustomed to play, where it was found by an eleven-year-old boy, whose curiosity led him to strike it with a hammer, causing it to explode and injure him, or that it had been so placed on the railroad track that it could be easily removed and brushed away.

In Slayton v. Fremont, E. & M. Valley R. Co. (1894) 40 Nev. 840, 59 N. W. 510, the fact that a vacant house, the door of which was locked and the windows fastened, had a hole in a window through which a sevenyear-old boy thrust his hand and undid the fastenings so that his two companions, aged ten aged ten and eleven years, could raise the sash and enter the house, was held not to be evidence of negligence rendering the owner liable for injury to the twelve-yearold brother of one of them, caused by the explosion of a torpedo found in the house and taken away by them.

In Hughes v. Boston & M. R. Co. (1902) 71 N. H. 279, 93 Am. St. Rep. 518, 51 Atl. 1070, it was conceded that under the rule laid down in the earlier New Hampshire cases, holding a landowner not liable for injury to an infant trespasser, a railroad company could not be held in fault for not keeping its right of way free from unexploded torpedoes which might render the place dangerous to children. A contention that the injury sustained by a child in exploding a torpedo found on the track should be regarded as intentionally or wantonly inflicted was rejected.

In Harriman v. Pittsburgh, C. & St. L. R. Co. (1887) 45 Ohio St. 11, 4 Am. St. Rep. 507, 12 N. E. 451, a railroad company was held negligent in leaving an unexploded torpedo near its track at a place where the public, including children, were known by it to be accustomed to pass, so as to render