Page:The Green Bag (1889–1914), Volume 10.pdf/244



CURRENT TOPICS. Allurement of Infants. — In recent numbers of the "Harvard Law Review " has appeared an exceed ingly exhaustive examination of the question of the liability of land-owners for injuries to infants tres passing on their premises, but drawn thither by the attractions of dangerous objects, natural or artifi cial — in a word, the "turntable doctrine." The learned writer takes a rather technical view, and inclines to the opinion that the doctrine prevailing in most of our States works hardship and injustice to proprietors of real estate and machinery. On the other hand, an apparently eminently practical and un learned person, in a recent number of the " American Law Review," takes the opposite view, contrary, as he says, to his original opinion and prepossessions. We incline to favor the latter writer's views, being partly influenced thereto, very possibly, by the cir cumstance that the "Review's" contributor is the Chairman. The subject is very interesting as an example of the overpowering of technical legal prin ciples by the force of practical necessity and policy. The complete and irrefragible answer to the legal theory that a land-owner owes no duty toward a trespasser except not to hurt him, is that small boys will be small boys, and it is impolitic to treat them as adults. Knowing the law and the dangers of attractive ponds and machines near highways, capable of affording a free swim or a free ride, espe cially if he knows that children are in the habit of using them for such purposes, a man owes some active duty toward such unsophisticated persons. A man has no right to set spring guns or traps on his land to hurt or catch trespassers, without posting notice of the fact. A land owner has no right to kill a valuable dog, or horse, or even a hog, trespassing on his land, if he can get rid of him in any milder way. Small boys are of more value than dogs, horses and hogs. A very humane example of the application of this doc trine is found in an Indiana case, where it is held that if mill-owners have been accustomed to allow children to play on piles of coal ashes, in their uninclosed and publicly situated yard, they may not dump hot ashes on the piles without notice or exclu sion of children. The same principle has been

applied to piles of lumber, a vicious dog, a cart, a windmill, a pool of hot water, dynamite, a ruinous wall, an elevator. It certainly is asking very little of a railroad corporation that it shall keep its turn tables securely fastened, even if they are five hun dred feet from the highway, as in the Massachusetts case, because that distance is a short march to an enterprising boy, and the turntable is a magnet of enormous power, a lodestone to the unwary and un sophisticated mariner. As the present writer said in the " American Law Review : " " In all such cir cumstances the question is not so much what boys ought to do, as what they are accustomed to do." We do not quite say, merely apt to do, for where boys have not been in the habit of adventuring upon such dangerous objects, it may be that no such duty is imposed on the proprietor; although if they are very near to and easily accessible from the highway, we should say the duty would arise even in absence of proof of the habit. Taking this view of turntables, we find the Federal Supreme Court, and the highest courts of Kansas, Minnesota. Missouri, Nebraska, Texas and California, while on the other side are the influential courts of Massachusetts and New York and the courts of Illinois and New Hampshire. In England the courts are pretty evenly divided on the general subject. The latest judicial expression on the subject is in Siddall v. Jansen, 168 Illinois, 43; 39 L. R. A. 112, where it is held that the car riage of an elevator is such an attraction to children, that an open or unguarded door, or one that chil dren can readily open, constitutes negligence on the part of the owner, when children are allowed to play near it. This was the case of an elevator in a store, designed for employes, and the injured per son was the child of an employe, present by permis sion of his father. The court made no reference to their holding in a turntable case, probably because there the machine was at a distance from any public place and it did not appear to have been resorted to by boys. It is evident that this court would require a railroad company, maintaining a turntable adja cent to a highway, or known to be frequented by boys, to keep it locked. Very possibly the Massa chusetts court would so hold in such a case. The