when the skid tipped over and injured him. The court, however, disclaimed any intention to apply the doctrine of attractive nuisance, saying: "This is not a case of a landowner putting an attractive, but dangerous, instrumentality on his own premises and leaving it unguarded. It is a case of an owner placing a dangerous obstacle in a public alley and leaving it unguarded. . . . The children had a right in the alley. It is a well-known fact that children are liable to be in the public streets and alleys, and to tarry and play, or meddle with attractive things left about. This is a fact which all persons must be mindful of, and they should take care not to negligently leave upon the public ways dangerous appliances calculated to arouse the curiosity of the youthful mind."

In McEachern v. Boston & M. R. Co. (1890) 150 Mass. 515, 23 N. E. 231, a declaration alleging that a railroad company left a car standing on one of several sidetracks adjoining a public street, and knew that one of its doors was insecurely fastened, and liable upon a slight touch to fall to the ground; that the company knew that the car was an enticing, attractive, and inviting object to children, and that children had been accustomed to play about such cars as might happen to be placed upon any of such sidetracks; and that plaintiff, a boy of eleven, was traveling upon the street in the vicinity of the track upon which the car was standing, and saw the car with its open door, and was thereby enticed and invited to look into the car, and thereupon did undertake to look in, and, in doing so, carefully touched the door, which immediately fell upon him and injured him,-was held not to state a cause of action, on the ground that it showed the plaintiff was a trespasser committing an unlawful act in meddling with defendant's car, and that, he not having been invited or enticed there by the defendant, defendant owed him no duty to keep the car safe for him to visit.

In Martin v. Northern P. R. Co. (1915) 51 Mont. 31, 149 Pac. 89, a cause of action under the attractivenuisance doctrine was held stated

by a complaint alleging that the defendant railroad company had in its yards, where children of tender years were accustomed to play, a gondola car which was out of repair in that the appliances for keeping the door in place were broken or missing; that because of its shape, and of the fact that large holes had been burned in its sides, it was peculiarly and unusually attractive to children of tender years, and constituted an implied invitation to them to go on the railroad company's property; that plaintiff's son, a boy of seven, was attracted by the car, went upon it, and was killed by the car door falling upon him.

In Gates v. Northern P. R. Co. (1908) 37 Mont. 103, 94 Pac. 751, where a railroad company left the body of a worn-out coal car beside its track in an unstable position, intending to burn it, and, while some boys were examining it, the vibration of a passing train caused it to tip over and kill one of them, it was held that there could be no recovery, in the absence of proof that the car was especially attractive to children, and that the defendant knew its attractive character.

In Isaac Leisy Brewing Co. v. Kapl (1908) 22 Ohio C. C. N. S. 309, where one, in removing a bar fixture, placed it temporarily in the space between sidewalk and curb in the street, and a child of six years intermeddled with it so that it fell over on him, it was held that the defendant was liable on the ground that the injury had occurred in a public street, where the child had a right to be, and where it was expected that small children would exercise their childish instincts, -distinguishing on that ground Wheeling & L. E. R. Co. v. Harvey (1907) 77 Ohio St. 235, 19 L.R.A. (N.S.) 1136, 122 Am. St. Rep. 503, 83 N. E. 66, 11 Ann. Cas. 981, 21 Am. Neg. Rep. 272.

In Hydraulic Works Co. v. Orr (1877) 83 Pa. 332, a heavy platform attached to a building by hinges so that it could be raised or lowered across a private cartway in the heart of a city close to a public highway, access to the premises being frequently

left open, was held to be a dangerous trap when it was raised and unfastened and left leaning against the building at such an angle that a slight jar or pull would cause it to fall; and the owner of the premises was therefore held liable for the death of a sixyear-old boy who with others strayed into the passageway through a gate which had been left open, and was playing there when the platform fell upon him. The court said: "Duties arise out of circumstances. Hence,

where the owner has reason to apprehend danger, owing to the peculiar situation of his property and its openness to accident, the rule will vary. The question then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossness of the act of imputed negligence. Now, can it be righteously said that the owner of such a dangerous trap, held by no fastening, so liable to drop, so near a public thoroughfare, so often opened and exposed to the entries of persons on business, by accident, or from curiosity, owes no duty to those who will be probably there? The common feeling of mankind, as well as the maxim 'sie utere tuo, ut alienum non lædas,' must say this cannot be true, that this spot is not so private and secluded as that a man may keep dangerous pits or deadfalls there without a breach of duty to society."

It is said of this case in the subsequent case of Gillespie v. McGowan (1882) 100 Pa. 144, 45 Am. Rep. 365, that there was a recklessness that might be said to partake of the nature of wantonness, and that it was only upon this principle that the judgment can be logically sustained.

In Daniels v. New York & N. E. R. Co. (1891) 154 Mass. 349, 13 L.R.A. 248, 26 Am. St. Rep. 253, 28 N. E. 283, Hydraulic Works v. Orr was said to rest upon the doctrine that an owner of land has no right to use his land near a highway in such a manner as to make it a public nuisance. The Pennsylvania courts have attempted to explain and distinguish Hydraulic Works v. Orr in various ways, but in Duffy v. Sable Iron Works (1904) 210

Pa. 326, 59 Atl. 1100, 17 Am. Neg. Rep. 710, it was said by Mitchell, Ch. J., dissenting, that the reason why the case had become like a shuttlecock in battledore was not far to seek. The case was a departure from settled principles, was wrongly decided, and it never commanded a general approval of professional opinion either at the bar or on the bench.

In Hughes v. Macfie (1863) 2 Hurlst. & C. 744, 159 Eng. Reprint, 308, the occupiers of a warehouse on one side of the street, the only footpath in which was on the other side, whose cellar extended under the street and opened into it, and whose workmen had left a large wooden flap or lid used to cover the cellar opening, with three crossbars on its lower face, leaning against the wall nearly upright, were held not liable for injuries to a five-year-old child who got upon the crossbars of the flap, and in jumping down caught some part of it with his jacket and pulled it over upon himself and another child. Pollock, C. B., said: "Had he been an adult, it is clear he could have maintained no action. He would voluntarily have meddled for no lawful purpose with that which, if left alone, would not have hurt him. He would therefore, at all events, have contributed by his own negligence to his damage. We think the fact of the plaintiff being of tender years makes no difference. His touching the flap was for no lawful purpose, and if he could maintain the action, he could equally do so if the flap had been placed inside the defendants' premises within sight and reach of the child. As far as the child's act is concerned, he had no more right to touch this flap for the purpose for which he did touch it than he would have had if it had been inside the defendants' premises."

In another action growing out of the same accident, Abbott v. Macfie (1863) 2 Hurlst. & C. 744, 159 Eng. Reprint, 308, 33 L. J. Exch. N. S. 177. 10 Jur. N. S. 682, 12 Week. Rep. 315, it was held that the plaintiff, a sevenyear-old child, who was also hurt by the fall of the door, could recover if he was not playing with the other

said in Edgington v. Burlington, C. R. & N. R. Co. (1902) 116 Iowa, 410, 57 L.R.A. 561, 90 N. W. 95, to be a nice distinction, which, assuming both children too young to exercise care or prudence, few courts of this day would be willing to follow.

In Keffe v. Milwaukee & St. P. R. Co. (1875) 21 Minn. 207, 18 Am. Rep. 393, it is pointed out that in Hughes v. Macfie (Eng.) supra, there was nothing to show that the defendant knew or had reason to apprehend that the cellar lid would be likely to attract young children into danger.

In Harrold v. Watney [1898] 2 Q. B. (Eng.) 322, 67 L. J. Q. B. N. S. 771, 78 L. T. N. S. 788, 14 Times L. R. 486, 46 Week. Rep. 642-C. A., an abutting owner whose premises were separated from the highway by a fence which had become rotten and defective was held liable to a four-year-old boy who, being attracted by boys playing on the premises, put one foot on the fence and was about to put the other on when the fence came down upon and injured him, on the ground that the boy was lawfully using the highway in doing that which was a natural thing for him to do.

In Vick v. Morin (1915) 21 B. C. 8, 22 D. L. R. 29, 7 West. Week. R. 1053, 30 West. L. R. 412, it was held that one who, in repairing a heater in the basement of a school building used by the pupils as a playground, had left a casting about 5 feet in height, weighing over 500 pounds, lying flat where it was in the way, was not liable for injury to a pupil by the casting falling on him after some other person had placed it against the wall of the basement in an almost perpendicular position, on the ground that it was not reasonably to be anticipated that persons seeking to put it out of the way would leave it in a dangerous position. 353. Vacant house.

Injury to child by torpedo found in, see Slayton v. Fremont, E. & M. Valley R. Co. (1894) 40 Nev. 840, 59 N. W. 510, under heading, "Torpedoes."

357. Vehicles.

See also "Tank wagon."

In Groarke v. Laemmle (1900) 56 App. Div. 61, 67 N. Y. Supp. 409, it was held that one leaving a milk wagon in a courtyard at the top of a slope, with the wheels blocked, was not bound to guard against the meddling therewith. of infants or others.

358. Vehicles in motion. See also "Steam roller;" “Threshing outfit."

A conveyance, whether a public or private one, in legitimate use on a public street, is not an attractive nuisance because of the propensity of boys to attach themselves in some way to a moving object. Rasimas v. Chicago R. Co. (1921) 223 Ill. App. 288. In Allred v. Pioneer Truck Co. (1918) 179 Cal. 315, 176 Pac. 455, it was held as a matter of law that the owners of vehicles are under no duty to employ guards to prevent boys from attempting to catch rides, and so that the owner of a furniture van was not liable for injury to a boy of nine, who, seeing other boys riding on the tailboard, in attempting to climb on the

projecting end of the brake beam, fell in front of the hind wheel.

In Skinner v. Knickrehm (1909) 10 Cal. App. 596, 102 Pac. 947, a wagon on which was resting neither bed nor frame, attached to the rear of a house which was being moved through the streets, which wagon, by reason of its slow movement and on account of the absence of any frame or bed, was attractive to children, was held to be an attractive nuisance, rendering the owners liable for injuries to a fouryear-old child, who, while riding on the wagon, fell off and was run over. The court said: "It may be conceded that one traveling upon a public highway, using ordinary care in the management and control of a vehicle under his charge, is not an insurer against accident, nor liable for damages even to children of immature years, who, playing upon such public highway, shall be injured in an attempt to ride thereon without acquiescence or invitation on the part of the party in charge of such vehicle. There rests, however, upon everyone so using a public thoroughfare, the duty of exercising ordinary care in the management and control of vehicles under his charge, to the end that others using such public places, exercising like care, or who, by reason of tender years, are unable to appreciate or guard against danger, may not suffer injury from the operation of such vehicles, and it is the duty of the one so operating such a vehicle to at all times retain such control over the same as may be requisite in averting, if possible, injury even to those not exercising such care, or unable to appreciate the danger connected therewith. The complaint avers facts which show defendants' omission of duty in the regard above stated, for it is admitted that the vehicle, unguarded and unattended, was being propelled through the streets by defend

ants."

The owners of an ice wagon being driven along a public street are not liable for injuries to an infant of five years, who, without the knowledge of the driver, climbed on the rear step and was injured by the falling out of

a block of ice. Conlon v. Bailey (1895) 58 Ill. App. 261.

The driver of an omnibus is under no duty to watch out for the safety of children who may climb on the rear steps to ride. Hebard V. Mabie (1901) 98 Ill. App. 543.

doctrine

The attractive-nuisance cannot be extended to include motor trucks passing through the streets, upon which children may be attracted to catch rides. Gamble v. Uncle Sam Oil Co. (1917) 100 Kan. 74, L.R.A. 1917D, 875, 163 Pac. 627.

In Eichkern v. Park Brewing Co. (1914) 181 Mich. 1, 147 N. W. 501, it was held that a verdict for the de fendant was properly directed in a case where a seven-year-old boy ran out in the street and attempted to climb upon the side of a passing wagon, but lost his footing and was run over by the hind wheel, there being nothing to show that at the time of the accident the driver knew, or in the exercise of ordinary prudence should have known, of the dangerous proximity of the boy, or his attempt to climb upon the wagon.

a

In Hight v. American Bakery Co. (1912) 168 Mo. App. 431, 151 S. W. 776, an action for injury to a boy who, while reaching under a wagon for a toy airplane which was one of a number that defendant's servants had let fly from their wagon as an advertising device, it was held that verdict for plaintiff could not be sustained in the absence of testimony tending to show that it was the purpose of defendant to attract the attention of children to the device, the wagon, or the products of defendant. The court said: "It is not to be inferred that the children residing on the streets along which this wagon was driven and the toys turned loose were prospective customers. The advertising of the product undoubtedly was intended to reach housekeepers; the toys and the piled-up cans, the banner on the wagon, were all parts of an advertising scheme. But it is a far cry to say that by attracting the attention of the children to the toys the attention of the consumers would be attracted to the product. Yet this is

the argument that must be relied on to sustain this averment of the petition. It is argued by counsel for appellant that this is a material averment in this petition. Those counsel argue that, if the purpose of sending up these whirligigs or toys was to invite the attention of children and to cause them to congregate around the wagon of the defendant for the purpose of increasing the business of defendant, it would seem that defendant owed respondent a very different duty from that which it owed him if he got in the way of the wagon through some impulse of his own and without appellant's knowledge or consent. We think this is a sound argument. We further agree that the burden of proof of this averment was on the plaintiff, respondent here. We hold he has failed to make any proof of it."

In Zigman v. Beebe & R. Furniture Co. (1915) 97 Neb. 689, L.R.A.1915D, 536, 151 N. W. 166, 8 N. C. C. A. 803, the doctrine was held not applicable to render liable one who coupled two wagons together and drove them along the street, so as to render him liable for the death of a child who climbed on the connecting pole. The court said: "In the diversity of vehicles which traverse the streets there may be many forms attractive to children, and in many instances the attractive part of the vehicle is not within the view of the driver. Omnibuses are often used which are entered by steps at the rear, with no conductor or guard, and the door to which is held closed by a cord or strap, reaching to the driver's seat. Would a child who climbed upon the rear steps while the omnibus was passing along the streets of a city be entitled to recover for injuries sustained by falling off the steps? Hebard v. Mabie (Ill.) supra, holds to the contrary, even in a case where the driver knew the child was there. It is not uncommon to see automobiles with trunk platforms or tire holders projecting from the rear, upon which a child might easily climb and be beyond the view of the driver. Could negligence be imputed to the owner of the machine if an accident

occurred by reason of a child having seated himself upon the rear projection, without the driver's knowledge? Wagons of certain types are constructed so that children can easily climb upon them. Those used for hauling stone, or to remove growing trees, or to carry iron girders, are of this class. Is it incumbent upon the owner of such a vehicle to send a guard as well as a driver every time he uses the streets for the transportation of his goods? These inquiries are suggested by the facts in this case. If the nature of a vehicle used on the streets is such as to be attractive to children, and they may easily climb thereon, then, if the principle contended for by the plaintiff is sound, no owner of such a vehicle can relieve himself from liability for negligence unless it is accompanied by a special guard, for the attention of the driver in a busy street must necessarily be directed to the front in order to control his team or his automobile. The question would be different if the driver was aware that children were congregating on and about it, and were liable to be injured if not warned away." The court distinguished the case of Skinner v. Knickrehm (1909) 10 Cal. App. 596, 102 Pac. 947, upon the ground that the children had been playing upon the wagon for a long space of time while the house was being moved for a large portion of the block.

In Rice v. Buffalo Steel House Co. (1897) 17 App. Div. 462, 45 N. Y. Supp. 277, 3 Am. Neg. Rep. 251, it was held that one carting through the streets a metal house used as an election booth was under no such duty to take precautions to prevent injury to children as to render him liable to a boy who put his hand on the side of the house and ran along with it, when one of the wheels of the wagon went into a hole in the pavement, causing the boy to fall, so that his hand was run

over.

In Foster-Herbert Cut Stone Co. v. Pugh (1905) 115 Tenn. 688, 4 L.R.A. (N.S.) 804, 112 Am. St. Rep. 881, 91 S. W. 199, 19 Am. Neg. Rep. 553, a wagon constructed for hauling stone, with a low bed below the axle, was held not