was padded, where, although it was shown that children were known to defendant to have played in the field where the tower was, and to have climbed upon it to swing upon the first crossbar about 7 feet from the ground, none of them had climbed higher.

But in McCoy v. Texas Power & Light Co. (1922) Tex. 239 S. W. 1105, it was held, reversing (1920) Tex. Civ. App., 229 S. W. 623, that a cause of action was stated by a petition alleging that defendant power company maintained transmission lines consisting of steel-frame towers upon which were strung hightension wires; that such towers consisted of a framework constructed of steel bars or strips tapering toward the top, carrying steel cross arms, suspended from which were insulators to which the wires were attached; that on one corner of such towers were attached steel spikes or projections for the purpose of forming a ladder; that the amount of electricity on the wires was so great that it was unnecessary for persons to come into actual contact with them in order to become affected thereby; that by reason of the peculiar construction of such towers, and the ease of access to all parts thereof by reason of such spikes, and by reason of the apparent security of the same and the lack of danger in connection therewith by reason of the fact that the wires were located outside of the towers some distance therefrom, and by reason of the lack of knowledge and information on the part of the public as to the great danger of coming within the zone of said high-tension electricity without coming in direct contact with the wires, and by reason of the fact that said towers were novel and new structures, and by reason of the failure of the defendant to place any warning sign upon said tower or in any wise to advise the public of danger, such towers constituted an attractive nuisance and a constant invitation to the public, and particularly to children and persons of tender years and lack of experience, to climb thereon; that it was well known to defendant that such towers were

Injury to boy climbing, by coming. in contact with electric wires, see Gherra v. Central Illinois Pub. Serv. Co. (1918) 212 Ill. App. 48; Ft. Wayne & N. I. Traction Co. v. Stark (1920) 74 Ind. App. 669, 127 N. E. 460; Graves v. Interstate Power Co. (1920) 189 Iowa, 227, 178 N. W. 376; Chickering v. Lincoln County Power Co. (1919) 118 Me. 414, 108 Atl. 460; Temple v. McComb City Electric Light & P: Co. (1906) 89 Miss. 1, 11 L.R.A. (N.S.) 449, 119 Am. St. Rep. 698, 42 So. 874, 10 Ann. Cas. 924; Godfrey v. Kansas City Light & P. Co. (1923) 213 Mo. App. 139, 247 S. W. 451, writ of certiorari quashed in (1924) Mo. —, 262 S. W. 357, under heading, "Electric wires."

346. Trench.

See "Excavations."

347. Trestle.

A railway trestle which children, in common with other members of the public, use as a walk way, is not an attractive nuisance. Sage v. Creech Coal Co. (1922) 194 Ky. 415, 240 S. W. 42.

348. Trolley cars.

Injury to child playing on, see Denver City Tramway Co. v. Nicholas (1906) 35 Colo. 462, 84 Pac. 813, 20

Am. Neg. Rep. 16; Hall v. International R. Co. (1918) 184 App. Div. 925, 170 N. Y. Supp. 1084, affirmed without opinion in (1919) 227 N. Y. 619, 125 N. E. 919; Kressine v. Janesville Traction Co. (1921) 175 Wis. 192, 184 N. W. 777; Grant v. Chatham, W. & L. E. R. Co. (1920) 17 Ont. Week. N. 401, under heading, "Standing cars."

349. Truck.

Car truck, see "Car truck." Electric delivery truck, see Jackson v. Mills Baking Co. (1922) 221 Mich. 64, 26 A.L.R. 906, 190 N. W. 740, under heading, "Vehicles not in motion."

Injury to child catching ride on, see Gamble v. Uncle Sam Oil Co. (1917) 100 Kan. 74, L.R.A.1917D, 875, 163 Pac. 627, and Routt v. Look (1923) 180 Wis. 1, 191 N. W. 557, under heading, "Vehicles in motion."

Injury to child playing on, see Ostrander v. Armour & Co. (1916) 176 App. Div. 152, 161 N. Y. Supp. 961, and Lee v. Van Buren & N. Y. Bill Posting

Co. (1920) 190 App. Div. 742, 180 N. Y. Supp. 295, under heading, "Vehicles not in motion."

Injury to child from toppling over of truck frame, see Edwards v. Negley (1914) 193 Ill. App. 426, under heading, "Unstable equilibrium."

Leaving out in street, as proximate cause of injury, see Lane v. Atlantic Works (1871) 107 Mass. 104, under

IV. j, supra.

Mc

107 Mass. 104, where defendant, in violation of a municipal ordinance, placed in a little-traveled street, in which, to defendant's knowledge, children were accustomed to play, a fourwheeled iron truck with a long handle or tongue on which was a heavy iron casting, without locking either the casting or the wheels of the truck, and a boy took hold of the tongue and swung it around, permitting the truck to tip and the casting to roll off upon another boy, it was held to be a question for the jury whether the defendant was in fault in leaving the truck in the street, or in leaving it insecure, and whether the occurrence by which the boy was injured was one which might easily have been apprehended as the result of such negligent conduct.

In Valley Planing Mill v. Daniel (1914) 119 Ark. 139, 170 S. W. 994, where a nine-year-old boy, passing along the street, reached up and caught hold of the front end of a twowheeled truck loaded with lumber left standing in the door of defendant's dry kiln, extending into the street about 3 feet and so loaded as to be nearly evenly balanced, requiring only a slight exertion to tilt it down, thereby causing the truck to fall over and crush him to the ground, it was held that the jury might properly find that defendant should have anticipated that a child of tender years might be tempted to do as plaintiff

did.

In Lane v. Atlantic Works (1871)

Proximate cause of injury on, see Barrett v. Southern P. Co. (1891) 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666; Edgington v. Burlington, C. R. & N. R. Co. (1902) 116 Iowa, 410, 57 L.R.A. 561, 90 N. W. 95; Brown v. Chesapeake & O. R. Co. (1909) 135 Ky. 798, 25 L.R.A. (N.S.) 717, 123 S. W. 298; Nagel v. Missouri P. R. Co. (1882) 75 Mo. 653, 42 Am. Rep. 418;

Evansich v. Gulf, C. & S. F. R. Co. (1884) 61 Tex. 24; Gulf, C. & S. F. R. Co. v. McWhirter (1890) 77 Tex. 356, 19 Am. St. Rep. 755, 14 S. W. 26, IV. j.

supra.

The doctrine does not apply in a case where a child using a path passing by a turntable falls into the turntable pit, the accident not having been caused by the attractiveness of the turntable to children. Hendricks v. Kansas City Southern R. Co. (1917) 142 La. 499, 77 So. 130.

Nor does it apply where the servants of the railroad company invited the injured boy to assist them in turning a turntable. Belt R. Co. v. Charters (1905) 123 Ill. App. 322.

In Gulf, C. & S. F. R. Co. v. Chappel (1918) Tex. Civ. App. 201 S. W. 1037, affirmed on rehearing in (1918)

Tex. Civ. App. 202 S. W. 366, it was held that the implied invitation to play with the turntable could not be considered as withdrawn by the act of a towerman in telling the children to keep away from it.

The question whether leaving a turntable unsecured so that children cannot turn it constitutes negligence will depend on the circumstances of the case. Gulf, C. & S. F. R. Co. v. Evansich (1884) 61 Tex. 3.

A railroad company is, as a matter of law, not liable for injuries sustained by a boy of fifteen years while playing on its turntable, which had been left unfastened, as such child will be presumed capable of appreciating the danger. CENTRAL OF GEORGIA R. Co. v. ROBINS (reported herewith) ante, 10.

In an action for an injury sustained by a boy of tender years on a turntable, based on the theory that it was an attractive nuisance, evidence tending to prove that other boys had been seen around the turntable before the accident, and that it was situated in a residence district, is admissible. Belt R. Co. v. Charters (Ill.) supra.

In Denison & P. Suburban R. Co. v. Harlan (1905) 39 Tex. Civ. App. 427, 87 S. W. 732, it was contended in effect that, inasmuch as there was no evidence of direct invitation to the injured child to ride upon the turn

table, the only invitation being that implied from its attractiveness for children, it was permissible to give evidence that the turntable was no more attractive than ordinary pools of water where children could fish or paddle or sail boats. The court, however, held that such evidence was immaterial, and that the issue was whether or not the maintenance of the particular turntable where located, unlocked, unfenced, and unguarded, so that it could be and was used by children as a plaything, rendered it so peculiarly and unusually calculated to attract children as to constitute an implied invitation to them to come upon and use it to their amusement.

Simply because a turntable is located in an out-of-the-way place, 26 rods from the nearest highway, does not relieve the company from keeping watch to find out whether it is being used by children, where there are no fences or obstructions to prevent children from gathering upon it. Berg v. Minneapolis & St. L. R. Co. (1905) 95 Minn. 404, 104 N. W. 293, 5 Ann. Cas. 375.

A railroad company is not bound so to fasten or secure its turntable that children cannot displace the fastenings and put it in motion, but is bound only to exercise ordinary care for their safety. Kolsti v. Minneapolis & St. L. R. Co. (1884) 32 Minn. 133, 19 N. W. 655.

The mere fact that the railroad company has used some fastening on its turntable will not, with regard to the character of the fastening, absolve the company from liability. The fastenings need not be such as to render it impossible for children to remove them, but should be such that an ordinarily prudent person would deem them sufficient to render it impossible that children would remove them. O'Malley v. St. Paul, M. & M. R. Co. (1890) 43 Minn. 289, 45 N. W. 440.

The fact that the turntable was latched in the way such tables are usually fastened, or according to the usual custom of other railroads, although a matter which the jury has a right to consider in passing upon the question whether defendant ex

ercised due care in the way it maintained the table, is not of itself conclusive proof of the fact. Barrett v. Southern P. R. Co. (1891) 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666.

The custom of other railroads as to keeping their turntables locked does not show that defendant was guilty of negligence in not doing so. Koons v. St. Louis & I. M. R. Co. (1877) 65 Mo. 592.

In Bates v. Nashville, C. & St. L. R. Co. (1891) 90 Tenn. 36, 25 Am. St. Rep. 665, 15 S. W. 1069, it is held that the duty of a railroad company to secure its turntable is performed by providing means for holding it securely in place, and does not require it so to secure it that small boys cannot displace the fastening and set the table in motion.

In Gulf, C. & S. F. R. Co. v. McWhirter (1890) 77 Tex. 356, 19 Am. St. Rep. 755, 14 S. W. 26, it was held proper to refuse a charge importing that the defendant was not negligent in leaving its turntable unfastened if its weight was such that it could not be moved by a five-year-old child. In Gulf, C. & S. F. R. Co. v. Chappell (1918) Tex. Civ. App. —, 202 S. W. 366, it was held that a railroad company was liability for injury to a child playing on its turntable, by the fact that before the accident a lock bar used for the purpose of holding the turntable in line was left in place, where it was easily removable by trespassing chil

dren.

not exonerated from

In Ilwaco R. & Nav. Co. v. Hedrick (1890) 1 Wash. 446, 22 Am. St. Rep. 169, 25 Pac. 335, it was held to be the duty of a railroad company so to secure its turntable as to prevent injury to those who by reason of their tender years were incapable of comprehending its dangerous character, and that such duty was not performed by tying it with a rope so that it could not be revolved unless the rope was cut or untied, where it was shown that such method of securing it had in the past proved insufficient to prevent children from playing with it.

In Stout v. Sioux City & P. R. Co. (1872) 11 Am. L. Reg. N. S. 226, Fed.

Cas. No. 13,503, the court charged the jury that if defendant's turntable was in a public place where children were in the habit of going to play upon it to the knowledge of the defendant, it would be necessary to protect it in some way, either by fastening it or by inclosing it; but that if it was remote from places of public resort, or if the defendant had no knowledge of children going there to play upon it, so that no danger could be reasonably apprehended from it, even though it may have been uninclosed, such diligence would not be required.

In Sioux City & P. R. Co. v. Stout (1874) 17 Wall. (U. S.) 657, 21 L. ed. 745, affirming (1872) 2 Dill. 294, Fed. Cas. No. 13,504, the first of the series of Turntable Cases, where a six-yearold boy was injured playing on a turntable which was unguarded, and not fastened or locked, located in an open space near a road, in a settlement of 150 persons, a verdict for the plaintiff was sustained, although it appeared that he had never before visited the turntable, and though it appeared in evidence by one of the employees of the company that he had previously seen boys playing at the turntable, where this fact was not communicated to the officers of the company having charge of the turntable. The court said: "That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable

It

on other occasions, and within the observation and to the knowledge of the employees of the defendant, the jury were justified in believing that children would probably resort to it, and that the defendant should have anticipated that such would be the case. As it was in fact, on this occasion, so it was to be expected, that the amusement of the boys would have been found in turning this table while they were on it or about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the defendant. could probably have been prevented by the repair of the broken latch. This was a heavy catch, which, by dropping into a socket, prevented the revolution of the table. There had been one on this table weighing some 8 or 10 pounds, but it had been broken off and had not been replaced. It was proved to have been usual with railroad companies to have upon their turntables a latch or bolt, or some similar instrument. The jury may well have believed that if the defendant had incurred the trifling expense of replacing this latch, and had taken the slight trouble of putting it in its place, these very small boys would not have taken the pains to lift it out, and thus the whole difficulty would have been avoided. Thus reasoning, the jury would have reached the conclusion that the defendant had omitted the care and attention it ought to have given, that it was negligent, and that its negligence caused the injury to the plaintiff. The evidence is not strong and the negligence is slight, but we are not able to say that there is not evidence sufficient to justify the verdict. We are not called upon to weigh, to measure, to balance the evidence, or to ascertain how we should have decided it if acting as jurors. The charge was in all respects sound and judicious, and there being sufficient evidence to justify the finding, we are not authorized to disturb it."

In Thomason v. Southern R. Co. (1902) 51 C. C. A. 67, 113 Fed. 83 (4th C.), where it appeared that a

twelve-year-old boy, seeing that his little brother, who was playing on defendant's turntable, was about to be crushed by the track of the turntable coming in close proximity to the stationary track, in attempting to save him by lessening the motion of the turntable, was himself caught and seriously injured, it was held that the defendant was entitled to the direction of a verdict. This decision rests apparently on the ground that there was no evidence of negligence in the manner of maintaining the turntable.

It is for the jury to determine whether a turntable situated in the midst of tracks within a railroad yard 600 feet from the nearest street, having regard to its construction and situation, was of a kind which if left unfastened or unguarded was likely to attract the interference of children, and whether the danger was so apparent that the defendant ought, in the exercise of ordinary prudence, to have anticipated that children would resort to the turntable and be injured by it if so left. Alabama G. S. R. Co. v. Crocker (1901) 131 Ala. 584, 31 So. 561.

In Barrett v. Southern P. Co. (1891) · 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666, a railroad company was held liable for injuries sustained by an eight-year-old boy while playing upon a railroad turntable 72 feet distant from a public street, and not protected by any inclosure, and provided with a latch and slot to keep it from revolving, although children playing around and upon it, when observed by the servants of defendant, were never permitted to do so.

And in Callahan v. Eel River & E. R. Co. (1891) 92 Cal. 89, 28 Pac. 104, a railroad company was held liable for injuries to a six-year-old boy whose leg was crushed while he was riding on a turntable turned by other boys, and not secured otherwise than by the customary latch and slot, although when boys were seen playing around the turntable they were ordered away by defendant's employees.

In Weik v. Southern P. Co. (1913) 21 Cal. App. 711, 132 Pac. 775, the court refused to interfere with a ver