261). There a child was injured by the fall of a gate on the land of the defendant on or near the line of a private alley leading from a public highway back to several dwellings, in one of which the plaintiff lived, and in which alley it had a right to be. The court refused to consider the question, and intimated that it made no difference because the plaintiff was not faultless; citing Lynch v. Nurdin. In Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413), a heavy train of cars coming around a curve killed a child less than 3 years old, playing on the track. The court followed the case of Birge v. Gardiner. The last case cited was Bird v. Holbrook, 4 Bing. 628. This was an action brought by a trespasser who was shot by a spring gun set for the purpose, and is clearly not in point. There was a wanton, intentional act, intended to punish trespassing with death, meriting punishment as an attempt at homicide. It is chiefly valuable in this connection as showing the difficulty found in the attempt to support Railroad Co. v. Stout by precedents.

The enunciation by the highest tribunal in the country of the rule that a landowner owes a duty of care towards a trespasser was sure to be followed by other courts. Among the earliest of these is Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393). This was a turntable case, and the trespassing child 7 years of age. The court there discovers a distinction between a voluntary trespass and one by a person without judgment, who is allured upon premises by his natural inclination, and meddles with things whose uses and dangers he is unable to comprehend. It says, "What an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years." Therefore this was an invitation, and the child licensed. Having by this reasoning found the child lawfully on the premises, it proceeds to treat the turntable as a trap, and compares it with a case when one sets traps baited with tainted meat, to allure his neighbors' dogs, which he intends to catch, or sets a spring gun, with the formed design of taking a trespasser's life.

This case was followed by another case in the same court. O'Malley v. Railway Co., 43 Minn. 289 (45 N. W. 440). This was also a turntable case, and the child 6 years of age.

In 1881 the supreme court of Nebraska approved the case of Railroad Co. v. Stout, although it reversed the case before it, and, as was done in the Stout Case, recognized the fact that the cases were not harmonious. Atchison, etc., R. Co. v. Bailey, 11 Neb. 332 (9 N. W. 50).

In Kansas the doctrine was applied in a case of a turntable located in the midst of an open prairie, and a boy 12 years of age. In discussing the tendencies of boys, the court said:

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"Everybody knows that, by nature and by instinct, boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar doors and the rails of staircases, pull sleds up hill in order to ride down, etc. Now, everybody, knowing the nature and the instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery, calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence. It is true that the boys in such cases are technically trespassers. But even trespassers have rights which cannot be ignored, as numerous cases which we might cite would show. But see, particularly, the cases of Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 39)." Kansas Central R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. Rep. 203).

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Here we have the doctrine of the Turntable Cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow, or a lawnmower, or a spade upon his lawn; a rake, with its sharp teeth pointing upward, upon the ground or leaning against a fence; a bed of mortar prepared for use in his

new house; a wagon in his barn-yard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse or a cow with calf,-does so at the risk of having the question of his negligence left to a sympathetic jury. How far does the rule go? Must his barn door, and the usual apertures through which the accumulations of the stable are thrown, be kept locked and fastened, lest 12-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams? May a man keep a ladder, or a grindstone, or a scythe, or a plow, or a reaper, without danger of being called upon to reward trespassing children, whose parents owe and may be presumed to perform the duty of restraint? Does the new rule go still further, and make it necessary for a man to fence his gravel-pit or quarry? And, if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences? Can a man nowadays safely own a small lake or fish-pond? and must he guard ravines and precipices upon his land? Such is the evolution of the law, less than 30 years after the decision of Railroad Co. v. Stout, when, with due deference, we think some of the courts left the solid ground of the rule that trespassers cannot recover for injuries received, and due merely to negligence of the persons trespassed upon. Well might the court of appeals of New York say in McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555):

"We are not now called upon to express an opinion as to the soundness of these decisions in such a case, and, while we are not prepared to uphold them, it is enough to say that the facts are by no means analogous."

In addition to the cases discussed, the following recognize the rule laid down in Railroad Co. v. Stout, attempting to justify their adherence to it in the particular cases by one or another reason, which we think it unnecessary to further allude to: Nagel v. Railway Co., (1882) 75 Mo. 653 (42 Am. Rep. 418); Barrett v. Southern Pac. Co., 91 Cal. 296 (27 Pac. 666, 25 Am. St. Rep. 186) [this

case cites Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), as supporting its doctrine; but in that case the child was not a trespasser on the land, whatever may be said of his meddling with the explosives; of this we will have more to say]; Harriman v. Railway Co., 45 Ohio St. 11 (12 N. E. 451, 4 Am. St. Rep. 507); Westerfield v. Levis, 43 La. Ann. 63 (9 South. 52); Fort Worth, etc., R. Co. v. Robertson, (Tex. Sup.) 16 S. W. 1093, 14 L. R. A. 781; Ilwaco R. Co. v. Hedrick, 1 Wash. 446 (25 Pac. 335, 22 Am. St. Rep. 169). It is a significant fact that these are all, with possibly one or two exceptions, railway cases; and it has been suggested by a text writer (2 Wood, Ry. Law, p. 1292), as a reason why railway companies should be held liable in these cases, that they do not hold their property by precisely the same tenure as an individual does, that they are quasi public corporations, and that such trespasses are common and frequent upon railroads. But this is a suggestion rather than an authority, and does not purport to be more. Certainly the cases of Railroad Co. v. Stout and Birge v. Gardiner, which are the leading cases, do not rest upon or recognize any such distinction or reason.

These two cases, to which can be traced the origin of this doctrine, have not gone unchallenged. In Kansas it was held that the attempt to give a trespasser such a right upon the land of another which could affect the latter in the management of his property would be unconstitutional, as tending to disturb vested rights. Caulkins v. Mathews, 5 Kan. 191. In Deane v. Clayton, 7 Taunt. 529, Gibbs, C. J., said:

"I know it is a rule of law that I must occupy my own so as to do no harm to others; but it is their legal rights only that I am bound not to disturb. Subject to this qualification, I may occupy or use my own as I please. It is the rights of others, and not their security against the consequences of [their] wrongs, that I am bound to regard."

A fine discussion of this subject will be found in the opinion of Hall, J., in the case of Keffe v. Railway Co.,

2 Cent. Law J. 172, where numerous authorities are cited. The doctrine of the cases under discussion was denied in a terse opinion in the case of Lake Shore, etc., R. Co. v. Clark, 41 Ill. App. 343. It was said:

"The youth of the deceased might be a matter for consideration upon the question of whether he was negligent, but it adds nothing to the duty of the appellant. It is not under greater obligation to anticipate the presence of children upon its tracks than of adults;" citing Chicago, etc., R. Co. v. Roath, 35 Ill. App. 349.

The case of Frost v. Eastern Railroad, 64 N. H. 220 (9 Atl. 790, 10 Am. St. Rep. 396), lays down the general rule thus:

"At the time of his injury, the plaintiff was using the defendant's premises as a play-ground, without right. The turntable was required in operating the defendant's railroad. It was located on its own land, so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich v. Wright, 53 N. H. 404 (16 Am. Rep. 339). Under these circumstances, the defendant owed no duty to the plaintiff, and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfill. A landowner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises, and, to recover for an injury happening to him, he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger. Clark v. City of Manchester, 62 N. H. 577; State v. Railroad, 52 N. H. 528; Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644); Morrissey v. Railroad Co., 126 Mass. 377 (30 Am. Rep. 686); Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514); Morgan v. City of Hallowell, 57 Me. 375; Pierce v. Whitcomb, 48 Vt. 127 (21 Am. Rep. 120); McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555); St. Louis, etc., R. Co. v. Bell, 81 Ill. 76 (25 Am. Rep. 269); Gavin v. City of Chicago, 97 Ill. 66