(91 W. Va. 482, 113 S. E. 760.) 853, 18 S. E. 447; Townley v. Huntington, supra; Newport News v. Scott, 103 Va. 794, 50 S. E. 266; Garr v. McMechen, 86 W. Va. 594, 104 S. E. 101. Instruction No. 8, given on motion of the defendant on the question of damage, is not the law of this state, and is erroneous. Yeater v. Jennings Oil Co. 75 W. Va. 346, 84 S. E. 904; Wigal v. Parkersburg, 74 W. Va. 25, 52 L.R.A. (N.S.) 465, 81 S. E. 554; Brogan v. Union Traction Co. 76 W. Va. 698, 86 S. E. 753. Mr. James D. Parriott and D. B. Evans, for defendant in error: In negligence cases, plaintiff cannot recover unless he establishes by a preponderance of the evidence, that defendant was guilty of the negligence charged in the declaration, and, further, that defendant's alleged negligence was the proximate cause of his injuries. Both of these actionable facts must be established by a preponderance of the evidence to warrant a recovery by plaintiff; and if plaintiff fail in establishing either of these essential elements of the alleged cause of his action, he must fail in his action. Smith v. County Ct. 33 W. Va. 713, 8 L.R.A. 82, 11 S. E. 1; Fawcett v. Pittsburg, C. & St. L. R. Co. 24 W. Va. 755; Anderson v. Baltimore & O. R. Co. 74 W. Va. 17, 51 L.R.A. (N.S.) 888, 81 S. E. 579; Washington v. Baltimore & O. R. Co. 17 W. Va. 190; Schwartz v. Shull, 45 W. Va. 405, 31 S. E. 914, 5 Am. Neg. Rep. 496; Tomlinson v. Vicksburg, S. & P. R. Co. 143 La. 641, 79 So. 174; Great Northern R. Co. v. Willard, 151 C. C. A. 564, 238 Fed. 714. It is only for actionable negligence that one can be held liable to pay damages. Even though one be negligent, still, if no hurt comes from his negligence there is no cause of action against him on account of his negligence, and the rule of subsequent intervening efficient cause is simply an elimination of the first or remote negligence because it worked no hurtbecause it was not the proximate cause of the injury. Smith v. County Ct. 33 W. Va. 713, 8 L.R.A. 82, 11 S. E. 1; Loftus v. Dehail, 133 Cal. 214, 65 Pac. 379; Berman v. Schultz, 40 Misc. 212, 81 N. Y. Supp. 647; Kaumeier v. City Electric R. Co. 116 Mich. 306, 40 L.R.A. 385, 72 Am. St. Rep. 525, 74 N. W. 481; Shotwell v. Reading, 4 Ohio S. & C. P. Dec. 326, 5 Ohio N. P. 241; Otten v. Cohen, 1 N. Y. Supp. 430; Bannon v. Pennsylvania R. Co. 29 Pa. Super. Ct. 231; Birmingham R. Light & P. Co. v. Hinton, 141 Ala. 606, 37 So. 635; Pennsylvania Co. v. Whitlock, 99 Ind. 16, 50 Am. Rep. 71. A prior or remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible. Missouri P. R. Co. v. Columbia, 65 Kan. 390, 58 L.R.A. 399, 69 Pac. 338; Schwartz v. Shull, 45 W. Va. 405, 31 S. E. 914, 5 Am. Neg. Rep. 496; Dicken v. Liverpool Salt & Coal Co. 41 W. Va. 511, 23 S. E. 582; Ritz v. Wheeling, 45 W. Va. 266, 43 L.R.A. 148, 31 S. E. 993. Ritz, J., delivered the opinion of the court: This suit was instituted to recover damages for the alleged wrongful death of plaintiff's decedent. The judgment below was in favor of the defendant, and the plaintiff prosecutes this writ of error. There is no substantial controversy developed by the evidence as to any material fact involved in the case. The defendant was the owner of a house and lot situate on the east side of Marshall street, in the city of Benwood. The front of the defendant's lot was some 4 feet higher than the sidewalk abutting the same, and the elevation of the rear of the lot was still higher. In front of defendant's lot, as well as in front of the adjoining lots, there was constructed a retaining wall. In front of defendant's lot this wall was a little more than 4 feet in height. The face of the wall at its base was on the street line, but it slanted back so that the face of the top of the wall was slightly back of the street line. The wall, it appears, was about 24 feet thick at the top. It appears also that the defendant's lot for some 2 or 3 feet back of the wall was practically level, and from that point sloped up to his house. Some little time before the accident, of which complaint is made, the defendant determined to build a porch on his house, and for this purpose purchased some lumber. This lumber consisted of four pieces 4 inches by 6 inches by 16 feet long, and some smaller pieces 2 by 4 inches, as well as some inch boards. The lumber was piled either on top of the wall or partly on top of the wall and on defendant's lot back of the wall. The four larger pieces were laid longitudinally with the front of the lot, two of them on the ground, and the other two on top of these. The smaller pieces of lumber were then thrown behind these four larger pieces. It is shown beyond question that this lumber would have remained in the position in which it was thus placed by the defendant indefinitely, unless interfered with by some animate agency. On the morning upon which the plaintiff's decedent was killed, it appears that there were several children, among them plaintiff's decedent, playing in the defendant's yard on this pile of lumber. Witnesses who observed them say that they were using parts of the smaller pieces as springboards by engaging them in some way with the larger pieces. While they were playing in this manner the ice wagon came along, and some of the children, including plaintiff's decedent, ran to the street for the apparent purpose of getting small pieces of ice from the iceman, and just at the time that plaintiff's decedent reached the sidewalk, immediately in front of the lumber, one of these large pieces rolled down. from off the wall and crushed her to death. There can be no question from the evidence but that this piece of lumber was caused to fall by reason of the children disturbing it with their play on the pile of lumber. Upon this state of facts the court instructed the jury that if they believed that the piece of lumber which fell upon plaintiff's decedent was caused to fall by some outside independent agency, for which the defendant was not responsible, then he would not be liable in this case. This, of course, was in effect a peremptory instruction to find for the defendant, be cause the evidence did not really leave open the question of what caused the lumber to fall. The only witness who knew anything about it testified that it was displaced by the children playing on it, and the testimony is conclusive that it could not have fallen unless there had been some interference from an outside agency. Does this instruction correctly propound the law? Plaintiff contends that it was the duty of the defendant to anticipate that children might go upon his premises and play on this pile of lumber, and be injured by it becoming displaced and rolling on the sidewalk, and that his failure to guard against such a contingency was negligence, or that it was negligence for him to pile the lumber upon his own property in such a position as that children might be attracted to it. It is quite apparent that the doctrine relied upon by the plaintiff is nothing more or less than the application of the attractive-nuisance doctrine. An attempt is made to hold the owner of the property liable upon the ground that he has some structure or appliance upon his property which attracts children to it. It is true, the injury here is not to the one who actually caused the timbers to become displaced, but the proposition of law is not at all different on that account, for the reason that children of the tender age who are generally injured under such circumstances as this cannot be charged with contributory negligence, and if the defendant would be liable to the plaintiff's decedent here, upon the same principle, he would be liable to the child who went upon the premises and dislodged the timber in case it was hurt as a result thereof. There are some courts that sustain this doctrine, but this court has repudiated the same in the cases of Ritz v. Wheeling, 45 W. Va. 262, 43 L.R.A. 148, 31 S. E. 993, and Conrad v. Baltimore & O. R. Co. 64 W. Va. 176, 16 L.R.A. (N.S.) 1129, 61 S. E. 44. We still think those cases present sound propositions of law, and are not dis (91 W. Va. 482, 113 8. B. 760.) posed to depart therefrom. Here is a case where an owner of property used the same in a perfectly lawful manner. One cannot erect houses or other structures upon his property without using material for that purpose, and he must store this material in some way upon his premises, prior to its actual use. It cannot be said that there is anything negligent in one storing upon his own premises lumber or other materials to be used in the construction of houses or other structures thereon, unless they are so piled or stored as that they are liable to fall and do an injury to those lawfully on the public ways. Where the injury results from the interference of some independent agency without the defendant's authority, it cannot be said that he is contributing thereto. He is entitled to the reasonable use of his property, and if one is injured because of the interference of a third party therewith, he must look to such third party for compensation for the injury, and not to the owner of the property who is in no wise at fault. This doctrine is well established by our own cases, as well as by those of other jurisdictions. Dicken v. Liverpool Salt & Coal Co. 41 W. Va. 511, 23 S. E. 582; Schwartz v. Shull, 45 W. Va. 405, 31 S. E. 914, 5 Am. Neg. Rep. 496; Great Northern R. Co. v. Willard, 151 C. C. A. 564, 238 Fed. 714; Tomlinson v. Vicksburg, S. & P. R. Co. 143 La. 641, 79 So. 174; Kaumeier v. City Electric R. Co. 116 Mich. 306, 40 L.R.A. 385, 72 Am. St. Rep. 525, 74 N. W. 481; Missouri P. R. Co. v. Columbia, 65 Kan. 390, 58 L.R.A. 399, 69 Pac. 338; Berman v. Schultz, 40 Misc. 212, 81 N. Y. Supp. 647. It follows from what we have said jury was caused by cause-fall of the interference timber into therewith by an street. outside agency for which the defendant was in no manner responsible. Under the law, as announced in this jurisdiction, there could be no liability upon the defendant, and the jury could not properly have returned any other verdict than the one it did. Some complaint is made of an instruction given on motion of the defendant upon the measure of damages. The instruction is clearly wrong and inapplicable to such a case as this; but, inasmuch as there Appeal-instrucwas no right to recover in any event, the giving of an incorrect instruction upon the measure of damages could not prejudice either of the parties to the suit. tion-damages. The judgment complained of is affirmed. A fifteen-year-old boy is not within the rule holding the owner of an attractive nuisance liable for injury caused by it to a child. [See note on this question beginning on page 34.] APPEAL by defendant from a judgment of the Circuit Court for Talladega County (Tate, Special J.) in favor of plaintiff in an action brought to recover damages for personal injuries received while playing on defendant's turntable. Reversed. Statement by Somerville, J.: This cause was submitted on motion to strike the bill of exceptions. The trial was presided over by the Honorable S. W. Tate, appointed as special judge. The trial was had June 1, and judgment rendered June 2, 1921. Before the expiration of ninety days from the date of the trial, the regular judge of the circuit returned, the jurisdiction of the special judge terminated, and said. special judge, on June 25, 1921, returned to his home in Calhoun coun ty, where he remained until Septy, where he remained until Sep tember 7, 1921. On August 27, 1921, counsel for appellant filed his bill of exceptions with the clerk of the court. Thereafter, on September 7, 1921, the special judge, being in the office of the clerk, found said bill of exceptions, took it therefrom and carried it to his home in Calhoun county where, after correcting it, he indorsed it as follows: "Wherefore said defendant presents and tenders to Honorable S. W. Tate, special judge of said court, the above, and prays that the same be signed and sealed as his bill of exceptions in said cause; and the same was duly presented to said judge on the 7th day of September, 1921, within the time allowed by law, and is approved, signed, and sealed by said judge as the lawful bill of exceptions of defendant in said cause, on this the 19th day of September, 1921. "S. W. Tate, Special Judge. "Indorsement: Presented to the undersigned by defendant on this the 7th day of September, 1921. "S. W. Tate, Judge." After the bill as thus indorsed was returned to the office of the circuit clerk, counsel for appellant obtained the same, detached the sheet containing the indorsement of the special judge and presented it to a justice of the supreme court, who made the following indorsement: "It appearing to me, Thomas C. McClellan, associate justice of the supreme court of Alabama, that the above case was tried before the Honorable S. W. Tate, judge of the circuit court of Talladega county, and that said judge was out of the county in which the case was tried, and further that his term of office expired before the within bill of exceptions was presented and within ninety days from the date of the trial of said case, and it further appearing that the within bill was filed with the clerk of the court within ninety days from the date of the trial of said case: "Now, therefore, it is by me, as associate justice of the supreme court of Alabama, hereby indorsed (209 Ala. 6, 95 So. 367.) presented to me as such associate justice on this the 11th day of October, 1921. And it further appearing that the parties by their attorneys have agreed upon said bill of exceptions, it is hereby approved and signed as a true and correct bill of exceptions in said cause. "Done at Montgomery, Alabama, on this 11th day of October, 1921. Thomas C. McClellan, an associate justice of the supreme court of Alabama." A ground of the motion to strike is that the bill was not presented to the presiding judge within ninety days from the date of the trial; that it was not sufficient to file the same with the clerk of the court, but that it should have been presented to the special judge within ninety days. The facts on the merits of the case sufficiently appear in the opinion. Messrs. Nesbit & Sadler, for appel lant: The doctrine of the Turntable Cases applies only to children of tender years, and not to boys fifteen years of age. Thomp. Neg. Supp. 1914, § 1036; 20 R. C. L. p. 79; Alabama G. S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561; Worthington v. Goforth, 124 Ala. 656, 26 So. 531; King v. Woodstock Iron Co. 143 Ala. 632, 42 So: 27; Warble v. Sulzberger Co. 185 Ala. 603, 64 So. 361; Cedar Creek Store Co. v. Stedham, 187 Ala. 622, 65 So. 984; Brammer v. Pettyjohn, 154 Ala. 616, 45 So. 646. Messrs. Riddle & Riddle for appellee. Somerville, J., delivered the opinion of the court: Under the facts and conditions shown, we hold that the bill of exceptions was properly presented to a justice of this court and was duly established as a correct and legal bill of exceptions in the cause, in accordance with the provisions of Act September 25, 1915 (Gen. Acts 1915, p. 816), amending § 3022 of the Code. Munson S. S. Line v. Harrison, 200 Ala. 504, 76 So. 446. The motion to strike the bill of exceptions will therefore be overruled. The plaintiff, a boy fifteen years of age, of normal growth and intelligence, went upon defendant's premises, in company with several younger children, and, while playing with defendant's turntable, which was left unfastened, suffered the injury of a broken leg. The chief and, indeed, the decisive question presented by this appeal is whether or not the doctrine of the Turntable Cases is applicable to any normal child who has passed the age of fourteen years. The doctrine of liability in this class of cases was settled in this state by the case of Alabama G. S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561 which followed the decision of the Federal Supreme Court in the pioneer case of Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745. The report of the Stout Case shows that the injured child was only six years old, and the opinion formulates the doctrine upon the predicate of the duty owed to "an infant of tender years.' In the Crocker Case, supra, also, the child was only six years old. With respect to the Turntable Cases and attractive-nuisance cases, the editor of Ruling Case Law observes: "These decisions establish that while a proprietor may owe no duty to adults with respect to instrumentalities maintained by him, he may be liable for injuries to a child of tender years for injuries sustained from the same instrumentalities." (Italics ours.) 20 R. C. L. 79, § 70. Pertinent to the question now before us, the same authority says: "Inasmuch as the injured child's appreciation of the danger embodied by the offending instrumentality is a criterion for determining liability, it is obvious that the age of the injured child is of the first importance in determining whether a recovery should be allowed in any particular case. It has been said that the turntable doctrine is intended for the protection of children of tender years, who, from immaturity, are incapable of exercising a proper degree of care for their own protection. Little or no direct consideration has been paid, however, to the |