ally calculated to attract and did attract such children and appeal to their instincts to play, and that it tempted and allured them and thereby caused them to enter thereon when it was not locked, to turn it around and ride thereon, and in other ways to make it a means of childish sport and diversion, the children being ignorant of the danger they thereby incurred, and that the defendant had knowledge of such practice.

Where the evidence showed that the defendant maintained a turntable, which, on account of its nature and surroundings, was essentially and unusually calculated to attract children thereto and thereon; that the turntable was kept unlocked, unfenced, and unguarded, and had, almost daily since its construction months before, been used by the children in the neighborhood as a merrygo-round, to the knowledge of defendant's employees, without their objection or protest, it was held that the court did not err in refusing to direct a verdict for the defendant. San Antonio & A. P. R. Co. v. Skidmore (1901) 27 Tex. Civ. App. 329, 65 S. W. 215, 11 Am. Neg. Rep. 163.

In Stephenville, N. & S. T. R. Co. v. Voss (1913) Tex. Civ. App. 159 S. W. 64, it was held that evidence showing that defendants left a turntable under their control unlocked and unguarded; that it was unusually attractive to children and persons of immature years; and that the deceased, a boy nearly fourteen years of age, while in the exercise of ordinary care for one of his years and experience, in playing beneath such turntable, was crushed and killed, was held sufficient to support a judgment for the plaintiff.

In Walker v. Potomac, F. & P. R. Co. (Pannill v. Potomac, F. & P. R. Co.) (1906) 105 Va. 226, 4 L.R.A. (N.S.) 80, 115 Am. St. Rep. 871, 53 S. E. 113, 8 Ann. Cas. 862, 20 Am. Neg. Rep. 221, it was held, rejecting the attractivenuisance doctrine, that a railroad company owes no duty of active diligence to children trespassing on its property to prevent them from being injured while playing on its turntable.

In Conrad v. Baltimore & O. R. Co. (1908) 64 W. Va. 176, 16 L.R.A. (N.S.) 1129, 61 S. E. 44, it was held, disapproving the doctrine of the Turntable Cases, that a railroad company was not liable for maintaining upon its private property an unlocked, unfastened, and unguarded turntable, to child injured playing thereon, though such turntable was located in a thickly settled community, near a public street and near grounds on which children were wont to congregate for play.

a

In Coley v. Canadian P. R. Co. (1906) Rap. Jud. Quebec 29 C. S. 282, affirmed in (1907) Rap. Jud. Quebec 16 B. R. 404, a railway company leaving an unfastened turntable, which accidents had shown to be dangerous to children, in an open place to which children of tender years were allowed access, was held to be liable for injury to a ten-year-old girl who, with other children, was playing with it. Comments on Cooke v. Midland G. W. R. Co.

In Cooke v. Midland G. W. R. Co. [1909] A. C. (Eng.) 229, [1909] 2 Ir. R. 499, 78 L. J. P. C. N. S. 76, 100 L. T. N. S. 626, 25 Times L. R. 375, 15 Ann. Cas. 557-H. L., where a railway company had a turntable which was unlocked, on its land close to a public road, and its servants knew that children were in the habit of trespassing and playing with the turntable, to which they obtained easy access through a gap in the fence, and a four-year-old child playing with other children on the turntable was injured, it was held that the evidence was sufficient to warrant a verdict for the plaintiff.

In Latham v. R. Johnson & Nephew [1913] 1 K. B. (Eng.) 398-C. A., Farwell, L. J., said that he was convinced that there was no intention in Cooke V. Midland Western R. Co. [1909] A. C. (Eng.) 229, [1909] 2 Ir. R. 499, 78 L. J. P. C. N. S. 76, 100 L. T. N. S. 626, 25 Times L. R. 375, 15 Ann. Cas. 557-H. L., to overrule any settled law or to establish any new principles theretofore unknown to the common law. And it was said by Hamilton, L. J.: "Of Cooke's Case

(Eng.) supra, the following things are clear: (1) Their lordships declared no new law and overruled no old cases. The question for decision was whether the special facts of the case could be brought within the existing law so as to be proper to be submitted to a jury. (2) The case was an extreme one. Lord Loreburn says it was so extreme that, but for the special combination of danger and attractiveness in the machine with neglect of a usual safeguard on the defendants' part by failing to lock it, he could not have concurred (id. at p. 242), and Lord Macnaghten reserves a doubt whether he could have viewed the fact as the jury did (id. at p. 233). (3) The report in the Law Reports is very laconic as to the facts. It refers to the headnote for the circumstances, and the headnote states that the children were 'trespassing,' which is wrong. At least they were licensees on the premises; their habit of playing with this identical turntable was known to the defendants, and counsel admitted (see p. 240) that the turntable, in the condition in which it actually was on the occasion of the accident, was a dangerous plaything for children. This error in the headnote and the unfortunate omission to state the facts explain, I believe, why this case has been so often relied on for principles that it does not lay down, and applied to facts to which it does not apply. A reference to the report in the courts below, which is necessary if the case is to be understood, shows that there was evidence, though not uncontradicted, that the bolt, supposed to fasten the turntable, could be withdrawn by a child, and that it could then be revolved with 'your finger' (see judgment of Johnson, J. ([1908] 2 Ir. R. at p. 254). Further, the worn track made by frequent entry and passage led from the gap in the fence up to the turntable itself. (4) The whole of the law summarized above had been elaborately examined and analyzed in the judgments in the Irish courts, and particularly the authority and true. effect of 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, the obligations due to licensees and invitees, the responsibility resulting from dangerous chattels left in public or accessible places, and the effect, if any, upon the directness or remoteness of causation of children's acts intervening so as to be a causa sine qua non. (5) There was some difference of opinion among their lordships on the point whether the children were licensees or invitees. All agreed, and the uncontradicted evidence proved, that they were not trespassers in the close. Lord Atkinson ([1909] A. C. at pp. 239, 240) took them to be licensees; Lord Collins (id. at 241) to be invitees; Lord Macnaghten (id. at p. 236) thought that in a case of negligence such as this it mattered not whether the children found the dangerous but attractive object in a place where they were as of right, or only under a license or invitation from the owner. Lord Atkinson in terms (id. at p. 239) speaks of a most important addition,' that the children had leave and license to play with the turntable, to be inferred from their being habitually suffered to do so."

In Pedlar v. Toronto Power Co. (1913) 29 Ont. L. Rep. 527, 15 D. L. R. 684, affirmed in (1914) 30 Ont. L. Rep. 581, 19 D. L. R. 441, it is said that Cooke v. Midland G. W. R. Co. (Eng.) supra, has been much misunderstood by reason of failure to apprehend that all that is there said is predicated upon findings of a jury, the court taking the view that there was evidence to go to the jury in support of these findings.

So, in Hardy v. Central London R. Co. [1920] 3 K. B. (Eng.) 459, 11 B. R. C. 223, 89 L. J. K. B. N. S. 1187, 36 Times L. R. 843, 64 Sol. Jo. 683, 150 L. T. Jo. 71-C. A., it is said that the decision in Cooke v. Midland G. W. R. Co. (Eng.) supra, clearly proceeded upon the inference that children resorted to the turntable with the tacit permission of the railway company; and that the headnote of the case is misleading in using the expression "trespassers."

In Jenkins v. Great Western R. Co.

[1912] 1 K. B. (Eng.) 525, 105 L. T. N. S. 882, 81 L. J. K. B. N. S. 378C. A., it is said that the ground of the decision in Cooke v. Midland G. W. R. Co. [1909] A. C. (Eng.) 229, [1909] 2 Ir. R. 499, 78 L. J. P. C. N. S. 76, 100 L. T. N. S. 626, 25 Times L. R. 375, 15 Ann. Cas. 557-H. L., was that there was leave and license to play with the turntable, and that it was because the person availed himself of that leave and license to play with the turntable that the injury occurred.

In Glasgow v. Taylor [1922] 1 A. C. (Eng.) 44, 29 A.L.R. 846, 91 L. J. P. C. N. S. 49, 126 L. T. N. S. 262, 86 J. P. 89, 38 Times L. R. 102, 20 L. G. R. 205, [1922] S. C. 1, 59 Scot. L. R. 14-H. L., it is said that the criticisms which have been made upon Cooke v. Midland G. W. R. Co. (Eng.) supra, not infrequently failed to give full weight to the vital fact that there was evidence from which the jury might reasonably conclude that the children not only entered upon the land of the company with its leave and license, but also played upon the dangerous machine, the turntable, they found there with that very same leave and license.

352. Unstable equilibrium.

In Falkenberg v. Stout (1907) 75 Kan. 172, 88 Pac. 874, the owner of a building was held not guilty of negligence in leaving a large stone leaning against the side thereof to guard an opening covered with a defective grating, on the theory that the place was attractive to children, and therefore not to be liable to a thirteen-year-old boy, not of sufficient capacity to understand the danger, who pulled the stone over so that it fell upon him, where the special findings showed that the stone did not interfere with the use of the sidewalk, and that an ordinarily prudent person would not have anticipated that the stone would hurt anyone in the exercise of due care; and not only that such children were not in the habit of playing or congregating at the place of the accident, but that there was nothing attractive to children there, and that an ordinarily prudent person would not have considered the stone to be dangerous or

unsafe in the position which it occupied.

In Frankfort v. Allen (1904) 26 Ky. L. Rep. 581, 82 S. W. 292, a municipal corporation was held liable for the negligence of a contractor putting in curbing, for leaving, in an unstable position in a street where children were accustomed to play, a large stone to be used for the purpose, which fell upon a boy who stood upon it, as he was starting to get off.

In Schmidt v. Cook (1895) 12 Misc. 449, 33 N. Y. Supp. 624, it was held that the owner of premises was bound to know that a stone 33 inches long, 25 inches broad, and 3 inches thick, leaning, almost perpendicularly, partly against a wooden fence and partly against a stone wall, in a yard where his tenant's children were supposed to play, would naturally tempt children to play upon and about it, and by reason thereof become dangerous to life and limb; and hence that he owed to children playing in the yard a duty of protection against harm.

In Kane v. Erie R. Co. (1905) 110 App. Div. 7, 96 N. Y. Supp. 810, it was held that a landowner was not responsible for injury to a seven-year-old boy by the fall of a portion of a pile of curbstones upon which he was playing tag with other children, on private premises which they had entered without invitation, where there was nothing in the appearance of the pile. to indicate that it was likely to prove dangerous even to trespassers.

In Rachmel v. Clark (1903) 205 Pa. 314, 62 L.R.A. 959, 54 Atl. 1027, 14 Am. Neg. Rep. 208, a manufacturing company which placed slabs of stone in front of its building in a space used as part of the sidewalk, was held liable for injury to a boy of seven who stopped on his way from school to mark on a slab of slate, which fell upon him, it being the duty of the defendant under the circumstances to make the place reasonably safe not only for adults using the sidewalk, but for children, recognizing their childish instincts and the probability that they might be attracted to enter upon the premises, so as to prevent a

stone from falling on a child who touched it in play.

In Latham v. R. Johnson & Nephew [1913] 1 K. B. (Eng.) 398, 82 L. J. K. B. N. S. 258, 77 J. P. 137, 57 Sol. Jo. 127, 29 Times L. R. 124, 108 L. T. N. S. 4-C. A., the owner of unfenced land not adjoining any public highway, but accessible by a path leading from the back of the house in which the plaintiff lived with her parents, which land was used for the deposit of various materials, including a cartload of large paving stones which were dumped upon the ground in an irregular heap, was held not liable for the injuries sustained by a child between two and three years of age by the falling of a paving stone on her hand, there being neither an allurement of the child upon the land for the purpose of injuring her, nor a concealed danger in the nature of a trap, nor invitation, nor dangerous object present upon the land.

Latham v. R. Johnson & Nephew (Eng.) supra, is explained and distinguished in Glasgow v. Taylor [1922] 1 A. C. (Eng.) 44, 29 A.L.R. 846, 91 L. J. P. C. N. S. 49, 126 L. T. N. S. 262, 86 J. P. 89, 38 Times L. R. 102, 20 L. G. R. 205 [1922] S. C. 1, 59 Scot. L. R. 14-H. L.

In Warrenton v. Smith (1919) 23 Ga. App. 241, 98 S. E. 91, reversed in (1919) 149 Ga. 567, 101 S. E. 681, on ground of governmental function, a cause of action was held to be stated by a petition alleging that in order to stop travel over a certain walk way the defendant city had placed a shaft 2 inches in diameter and about 20 feet long, one end of which was lying on a slab at the edge of the courthouse steps and the other on a pier; that, by the slightest movement, it was liable to fall; that the city had both actual and constructive notice of the fact, and had actual notice that children played upon and around it; that while plaintiff, who was four years of age, was playing on it with other boys, it fell to the ground, injuring him severely.

In Edwards v. Negley (1914) 193 Ill. App. 426, where a boy of four,

while crossing, on his way home, a lot used as a log yard, pulled down on himself the frame of a truck made of 6 by 6 oak timbers about 6 feet long, with crosspieces 3 or 4 feet long, which had been left reared up nearly perpendicular against the fence, it was held that the question of attractive nuisance was for the jury.

In Blakesley v. Standard Oil Co. (1921) 193 Iowa, 315, 187 N. W. 28, it was held as a matter of law that a heavy wagon box left leaning against a building was not an attractive nuisance so as to render the owner liable for the injury sustained by a boy of eleven who, while waiting for a freight train to pass a crossing, trespassed upon the premises and placed his foot on the bottom crosspiece, and a hand on a higher crosspiece, when the box tipped over onto him, since the defendant had no reason to anticipate that the boy would come upon the premises, and the thing which caused the injury was not apparently dangerous or attractive.

In Clement v. Northern Nav. Co. (1918) 43 Ont. L. Rep. 127, 43 D. L. R. 433, reversing (1917) 13 Ont. Week. N. 22, it was held that a carrier who, in unloading a crated wagon on a government wharf, left it leaning against a storehouse at such an angle that a very slight pressure or weight was sufficient to draw it away from the wall, created a common nuisance, rendering it liable to children lawfully on the wharf who climbed upon the crate, which fell over on them.

In Rothenberger v. Powers Fuel, Feed, Transfer & Storage Co. (1921) 148 Minn. 209, 181 N. W. 641, it was held to be a question for the jury as to whether a transfer company was negligent in leaving a skid, consisting of two 4x6 timbers joined by crosspieces, which was 24 feet long and 4 feet wide and weighed 500 pounds, resting on its edge in a public alley where small children were accustomed to play, without any support to prevent its toppling over, so as to render it liable where a boy of eight got onto the skid and attempted to walk sideways along the bottom timber,

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 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.

was

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