so attractive and dangerous to children as to require the owner to take special precautions to avoid injury to such as might attempt to ride upon it. The driver of a truck proceeding along the highway is not required to keep a lookout for children who may attempt to climb on to the sides or the rear of his vehicle. Routt v. Look (1923) 180 Wis. 1, 191 N. W. 557.

359. Vehicles not in motion.

A moving van, which, on starting off with its load, runs over the finger of a child who has gone under it after a ball, is not an instrumentality naturally calculated to attract children. Czarniski v. Security Storage & Transfer Co. (1918) 204 Mich. 276, 170 N. W. 52.

In Jackson v. Mills Baking Co. (1922) 221 Mich. 64, 26 A.L.R. 906, 190 N. W. 740, an electric delivery truck which the driver had left standing in the street, with power off and brakes set, while he carried some parcels to a house, and which children had not previously been known to meddle with, was held not to be an attractive nuisance so as to render the owner liable to a child who got into it and turned on the power, and was injured in getting off. The court said that if the driver had left his wagon standing in the street and gone out of sight of it, and remained away for a considerable period, while children were in the habit of playing in and around it, a different question would have been presented.

In Ostrander v. Armour & Co. (1916) 176 App. Div. 152, 161 N. Y. Supp. 961, it was held not to be the duty of a driver of an automobile truck to make sure before starting that none of the children who had been playing about the truck, and whom he had told to get off, had remained on the running board.

But in Ziehm v. Vale (1918) 98 Ohio St. 306, 1 A.L.R. 1381, 120 N. E. 702, it was held that the owner of an automobile, who, upon returning to his car, found an infant four and one-half years of age thereon, was not absolved from further duty toward such infant by driving it from the car, but was re

quired to exercise reasonable care to avoid injury to the child, on the ground that the principle of nonliability to trespassing children does not apply where the statical condition of the premises is made perilous by the active and negligent operation thereof by the owner.

In Lee v. Van Buren & N. Y. Bill Posting Co. (1920) 190 App. Div. 742, 180 N. Y. Supp. 295, where children were known to be accustomed to play on trucks left standing by defendant in the street in front of its premises, it was held to be a question for the jury whether the defendant should be held liable for the death of a boy who was on the fender when a truck was started by another boy on the driver's seat and ran into an automobile ahead of it.

In Bruhnke v. La Crosse (1914) 155 Wis. 485, 50 L.R.A. (N.S.) 1147, 144 N. W. 1100, it was held that the doctrine of attractive nuisance did not apply so as to hold a municipal corporation liable for injuries to a child who caught hold of the chains of a dump wagon used for street-cleaning purposes, just as it was about to be dumped, so that it was drawn with great force into or against the pulleys through which such chain passed. The court said: "Where an object is of a construction not forbidden by law, and in a place authorized by law, it is impossible that it should be a nuisance. It is not unlawful to use dump wagons. If mere averment or proof that a useful implement or vehicle was attractive to children would make its use on the streets unlawful, and its presence a nuisance, most of the useful vehicles, implements, and appliances must be withdrawn from the service of mankind. An automobile, a carriage, or a dumping wagon is each attractive to and dangerous to children, and often dangerous even to adults. But that does not make either, when in legitimate use, a nuisance in the public street."

In Lynch v. Nurdin (1841) 1 Q. B. 29, 113 Eng. Reprint, 1041, 4 Perry & D. 672, 10 L. J. Q. B. N. S. 73, 5 Jur. 797, one who had left a horse and cart unattended for about one half hour in a highway, where children began to

play with the horse and climb into the cart and out of it, was held liable to a boy under seven years of age, who was getting out of the cart when another boy made the horse move, in consequence of which the first boy fell and a wheel of the cart went over his leg.

360. Velocipede.

See Atlantic Coast Line R. Co. v. Corbett (1920) 150 Ga. 747, 105 S. E. 358, reversing (1920) 24 Ga. App. 790, 102 S. E. 464, under heading, "Cogwheels."

361. Ventilating fan.

In Smith v. Marion Fruit Jar & Bottle Co. (1911) 84 Kan. 551, 114 Pac. 845, 1 N. C. C. A. 620, the attractivenuisance doctrine was applied to a fan used for forcing air into a factory, which was located under a shed in an open space to which there was free access, and which had no rail or fence about it, where the place was shown to be considerably frequented by children, who would stand and listen to the noise made by the fan, so as to render the owner liable for injury to a boy of thirteen who put his hand into the opening "to see where the wind came from."

In Pennington v. Little Pirate Oil & Gas Co. (1920) 106 Kan. 569, 189 Pac. 137, the case of Smith v. Marion Fruit Jar & Bottle Co. (Kan.) supra, was said to have gone to the limit in the application of the doctrine.

362. Viaduct.

Fall of child from retaining wall, see Coon v. Kentucky & I. Terminal R. Co. (1915) 163 Ky. 223, L.R.A.1915D, 160, 173 S. W. 325, under heading, "Retaining wall."

Injury to child climbing on, by coming in contact with electric wire, see Consolidated Electric Light & P. Co. v. Healy (1902) 65 Kan. 798, 13 Am. Neg. Rep. 71, 70 Pac. 884, 13 Am. Neg. Rep. 71, and Johnston v. New Omaha Thomson-Houston Electric Light Co. (1907) 78 Neb. 24, 17 L.R.A. (N.S.) 435, 110 N. W. 711, 113 N. W. 526, under heading, "Electric wires."

363. Wagon.

See "Vehicles;" "Vehicles in motion;" "Vehicles not in motion."

364. Wagon box.

Injury to child by tipping over of, see Blakesley v. Standard Oil Co. (1922) 193 Iowa, 315, 187 N. W. 28, under heading, "Unstable equilibrium."

365. Wall.

See also "Retaining wall."

In Haack v. Brooklyn Labor Lyceum Asso. (1904) 44 Misc. 273, 89 N. Y. Supp. 888, the owner of premises which had been destroyed by fire was held not liable for injury by a falling wall to a boy who was getting something out of the ruins.

366. Washing machine.

In Public Serv. Co. v. Petty (1924)

Colo. -, 226 Pac. 297, it was held to be a question for the jury whether an electric light company was negligent in having in operation in its of fice, to which people came accompanied by children to pay their bills, an electric washing machine, open so as to expose its mechanism and not screened or otherwise guarded, with no attendant in charge thereof, so as to render it liable to an eighteenmonths-old child who placed its fingers in the cogs of the machine while its mother was engaged in paying her bill.

367. Water.

See "Bridges;" "Canal;" "Cofferdam;" "Drainage ditch;" "Flume;" "Mill race;" "Ponds;" "Pools;" "Streams and rivers."

Poisoned by chemicals, see UNITED ZINC & CHEMICAL Co. v. BRITT (reported herewith) ante, 8, reversing (1920) 264 Fed. 785, under heading, "Chemicals."

368. Water tank.

See "Reservoir."

369. Water wheel.

In Ryan v. Towar (1901) 128 Mich. 463, 55 L.R.A. 310, 92 Am. St. Rep. 481, 87 N. W. 644, it was held that a landowner having on his property a disused building which contained a water wheel was under no duty to make the place safe for children who had broken a hole through a stone wall in order to play on the wheel. The doc

trine of the Turntable Cases was repudiated.

370. Well-drilling machine.

In Wood v. Independent School Dist. (1876) 44 Iowa, 27, a drilling machine used in sinking a well in a school yard was held not to be such a particularly dangerous appliance that the school district, which had employed a contractor to do the work, would be liable for the failure of the contractor to guard it so as to prevent a schoolboy, lawfully in the yard, from being hurt through having his foot upon the bull wheel when his schoolmates were turning the sweep. The court said: "We are not prepared to hold that every person having upon his premises machinery, tools, or implements which would be dangerous playthings for children, and in their nature affording special temptations to children to play with them, is under obligation to guard them in order to protect himself from liability for injuries to children received while playing with them, although the children were rightfully on his premises. It would be improper to burden the mechanical industries of the country by such a rule. Without holding, therefore, that there may not be pieces of machinery so peculiarly dangerous, that a right of action would exist at common law for injuries received from them, if left unguarded, we do not think the drilling machine in question is such machinery; at all events, we cannot regard it as so peculiarly dangerous that an employer should be made liable for the negligence, if any, of a contractor in leaving the machinery unguarded, the same being in use upon the employer's premises in the prosecution of a lawful work."

371. Wells and cisterns. Pools formed around top of cistern, see Cœur d'Alene Lumber Co. v. Thompson (1914) L.R.A.1915A, 731, 131 C. C. A. 316, 215 Fed. 8 (9th C.), under heading, "Pools."

A natural deep hole having a spring of water therein is not an attractive nuisance which the owner of the premises is bound to keep covered to insure the safety of children resorting there

36 A.L.R.-19.

to play; and such owner is not liable for the death of a child, who, while flying a kite, backed or fell into the hole and was drowned. Gandy v. Copeland (1920) 204 Ala. 366, 86 So. 3.

In Donk Bros. Coal & Coke Co. v. Leavitt (1903) 109 Ill. App. 385, an action for the death of a child drowned in a cistern back of a house owned by plaintiff, it was held that a recovery was warranted where the evidence justified the conclusion that the defendant knew that children were in the habit of playing there, and that the natural instincts of a child would cause it to lift the cover of the cistern by its handle to discover what might be hidden there.

In Hargreaves v. Deacon (1872) 25 Mich. 1, it was held that a landowner was not liable for the drowning of a trespassing child, who fell into an unguarded cistern on property not immediately adjoining a highway.

In Tucker v. Draper (1901) 62 Neb. 66, 54 L.R.A. 321, 86 N. W. 917, 10 Am. Neg. Rep. 307, the owner of a lot which the public were permitted to frequent was held liable for the drowning of a three-year-old child in a well thereon, covered over with loose boards, some of which had been removed. The court said: "If I know that there is an open well upon my premises, and know that children of such tender years as to have no notion of their danger are continually playing around it, and I can obviate the danger with very little trouble to myself and without injuring the premises or interfering with my own free use thereof, I owe an active duty to those children, and if I neglect that duty, and they fall into the well and are killed, it is through my negligence."

In Holt v. Spokane & P. R. Co. (1895) 4 Idaho, 443, 40 Pac. 56, it was held that the owner of property who had used due care to keep a well thereon covered was not liable for the drowning of a child therein, the cover having been removed by strangers and not replaced, the court saying: "If the rule contended for by respondent prevailed, the defendant would be lia

ble for damages if a child climbed one of the trees growing on said lot, and fell therefrom, and was injured or killed. The tree in the case should be considered as something attractive to children, and the owner must cut it down or so protect it that a child could not reach it to climb it, or be liable in damages."

In Granfield v. Hammonds (1924) 100 Okla. 75, 227 Pac. 140, the attractive-nuisance doctrine was held to have no application in the case of a child drowned in a well, which, on account of work being done, was covered only with loose boards, where the well was located on premises at a distance from any public road, and the child was taken on the premises by its parent, and permitted to wander about there without the knowledge of the defendant or any of its employees.

In Gillespie v. McGowan (1882) 100 Pa. 144, 45 Am. Rep. 365, the owner of an uninclosed field formerly used as a brick yard was held not liable for the death of a boy nearly eight years of age, who fell into an old, open well on the premises and was drowned. The court said: "We are unable to see anything in this case to charge the defendants with negligence in not inclosing their lot or guarding the well. There was no concealed trap or deadfall, as in Hydraulic Works Co. v. Orr (1877) 83 Pa. 332. The well was open and visible to the eye. No one was likely to walk into it by day, and this accident did not occur at night. A boy playing upon its edge might fall in, just as he might in any pond or stream of water. In this respect the well was no more dangerous than the river front on both sides of the city, where boys of all ages congregate in large numbers for fishing and other amusements. Vacant brick yards and open lots exist on all sides of the city. There are streams and pools of water where children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property either to inclose it, or fill up their ponds and level the surface so that trespassers may not be injured, would be an oppressive rule. The law does not require us to enforce

any such principle, even where the trespassers are children. .We all know that boys of eight years of age indulge in athletic sports. They fish, shoot, swim, and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is part of a boy's nature to trespass, especially where there is tempting fruit; yet I never heard that it was the duty of the owner of a fruit tree to cut it down because a boy trespasser may possibly fall from its branches. Yet the principle contended for by the plaintiff would bring us to this absurdity if carried to its logical conclusion. Moreover, it would charge the duty of the protection of children upon every member of the community except their parents."

In Breckenridge v. Bennett (1893) 7 Kulp (Pa.) 95, the owner of land containing an open cistern 8 feet in diameter and 15 feet in depth was held not liable for the drowning of a seven-year-old trespasser therein, although the premises were used with the knowledge of the owner as a playground and common.

In Flippen-Prather Realty Co. v. Mather (1918) Tex. Civ. App. 207 S. W. 121, the court sustained a verdict in favor of the parents of a child drowned in an unguarded, abandoned well situated on unused and unfenced land, where it was shown that the well was about 100 or 130 feet from one of the streets; that it was one block from a public school, and that, at the time of the accident, a variety of wild flowers grew in profusion upon the land upon which the well was situated; that the well itself was especially attractive to children because of the frogs found sitting around on rocks or other substances near the top of the well, at which they were accustomed to throw, because of the water in the well into which they could throw rocks and other missiles, and because of a circular depression surrounding the well, slightly lower than the surrounding surface of the ground, around which children were accustomed to chase each other, and that the defendant knew or could have known that chil

375. Wheel scraper.

In Kelley v. Parker-Washington Co. (1904) 107 Mo. App. 490, 81 S. W. 631, it was held that a contractor engaged in grading a highway, who left a wheel scraper, not in immediate use, standing with the pan up, was liable for the injury sustained by a five-yearold girl who had climbed up to, and was sitting on the top of, the pan when her little brother jumped upon the front platform of the scraper, and in so doing stepped on the pedal which released the lever controlling the pan, so that the pan dropped and the little girl fell into it, and in so doing caught her hand in the hinge of the brace bar. The court held that evidence offered by the defendant showed that, as long as scrapers of the kind in question had been used and handled in the same way in which defendant handled the one on which plaintiff was injured, no injury had ever resulted to children playing on or attracted by them, was properly excluded, saying: "This is equivalent to saying that leaving dangerous machinery without any safeguards against danger is not negligence, because no one as yet has been injured from such a cause. although the machinery in such a condition is a standing menace to the safety of persons who may unknowingly come in contact with it. We are not aware

of any holding by the courts that the omission to perform a reasonable duty has been made a test of diligence, however general the practice in that respect may have been, and however free from harmful effects." Such reasoning seems to beg the question on which the defendant's liability should. have depended, i. e., whether such an accident as happened was reasonably to be anticipated.

In Jorgenson v. Crane (1915) 86 Wash. 273, L.R.A.1915F, 983, 150 Pac. 419, where a wheel scraper, left unguarded and unfastened upon school grounds, was dragged by children to the top of an incline for the purpose of riding down upon it, and one was run over by it in attempting to get upon it after it had started on the down trip, it was held error to grant a nonsuit in an action for the injury sustained by the child, on the ground that it should have been foreseen that the children would haul it about and play with it in the manner in which they did play with it, and that there was a possibility of injury therefrom. in the same case, upon a subsequent appeal in (1916) 92 Wash. 642, 159 Pac. 796, it was held that evidence on the second trial to the effect that the scraper was left either on the school ground, or a few feet from the boundary line, did not establish that defendant was not negligent as a matter of law.

376. Windlass.

And

Injury by cogwheels on, see SaverioCella v. Brooklyn Union Elev. R. Co. (1900) 55 App. Div. 98, 66 N. Y. Supp. 1021, under heading, "Cogwheels."

377. Winch.

In Fitzgerald v. Rodgers (1901) 58 App. Div. 298, 68 N. Y. Supp. 946, a winch actuated by a horse hitched to a boom or sweep, used in raising fragments of stone from a sewer trench, was held not to be such an alluring object as to render the contractor leaving it unprotected in the street liable to a boy who sat upon the sweep while other boys were causing it to revolve, and got his leg caught in the cable which passed around the drum.