way hand car;13 where a railroad company had been accustomed for several years to leave cars fastened by brakes, on a side track of somewhat steep grades, and a boy, five years old, unloosened the brakes, fell or jumped off, and was killed;14 where a boy six or seven years old got upon a hoisting apparatus hanging over the street from the side of a mill, for the purpose of riding upon it, against the warning of a companion, and fell off, and was killed;15 where a child lost its life by falling into a pool of hot water on the premises of a distilling company, it not appearing that the place was especially at tractive to children or that they were in the habit of resorting there to play.16 For stronger reasons, no liability will be incurred by any one from the mere fact that he fails to drive children away from vacant grounds, of which it is not shown that he is either the owner, the occupier, or the care-taker. 17

III. Decisions Holding the Landowner Liable. We now come to a class of decisions which hold the landowner liable in damages, in the case of children injured by dangerous things suffered to exist unguarded on his premises, where they are accustomed to come with or without license. These decisions proceed on one or the other of two grounds: 1. That where the owner or occupier of grounds brings or artificially creates something thereon which, from its nature, is especially attractive to children, and which at the same time is dangerous to them, he is bound, in the exercise of social duty and the ordinary offices of humanity, to take

13 Robinson v. Oregon, etc. R. Co., 7 Utah, 493, 13 L. R. A. 765, 27 Pac. Rep. 689.

14 Central Branch Union P. R. Co. v. Henign, 23 Kan. 347.

15 Rodgers v. Lees, 12 L. R. A. 216, 140 Pa. 475, 27 W. N. C. 441, 21 Atl. Rep. 399, 22 Pitts. L. J. (N. S.) 34, 48 Phila. Leg. Int. 329. Compare Hestonville R. Co. v. Connell, 88 Pa. St. 520. And see Moore v. R. Co., 99 Pa. St. 301, and Oil City, etc. Bridge Co. v. Jackson, 114 Pa. St. 321.

16 Schmidt v. Kansas City Distilling Co., 90 Mo. 284. 17 Galligan v. Metacomet Man. Co., 143 Mass. 527. Other similar cases where the defendant has been exonerated are: Gernau v. Oceanic Steam Nav. Co., 50 N. Y. St. Rep. 156, 21 N. Y. Supp. 371. Brechenridge v. Bennett (Pa. C. P.), 7 Kulp, 95. Union Stock Yards, etc. Co. v. Rourke, 10 Ill. App. 474. In a suit for the death of a child drowned in a pond formed in defendant's lot, an ordinance requiring excavations within the city to be inclosed, which appeared to relate to highways, has been held not admissible in evidence. Overholt v. Vieths, 93 Mo. 422, 12 West. 95, 6 S. W. Rep. 74.

reasonable pains to see that such dangerous things are so guarded that children will not be injured by coming in contact with them. 2. That, although the dangerous thing may not be what is termed an attractive nuisance

that is to say, may not have a special attraction for children by reason of their childish instincts, yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it so as to prevent injury.18 In respect of the first class of cases, that of attractive nuisances, it is to be observed that it would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog, attracted by his natural instincts, might run into it and be killed,19 and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's child, attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life.20 In view of what has preceded, the author regrets that he cannot say, as he said in the first edition of his work on "Negligence," that such is not the law. He limits himself to expressing the opinion that it ought to be the law, and to citing with approval those decisions which hold that it is the law. In a case where this view was taken, it appeared that there was, adjoining a factory, a private alley, which communicated with a public street by a gate which was frequently left open by employees, though contrary to orders.

In

18 Cases proceeding on one or the other of these grounds are Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Birge v. Gardiner, 19 Conn. 507; Railroad Co. v. Stout, 17 Wall. 657, 2 Dill. 294, 1 Cent. L. J. 202, 17 Am. L. Reg. 226; Keffe v. Milwaukee, etc. R. Co., 21 Minn. 207, 2 Cent. L. J. 170; Whirley v. Whitman, 1 Head (Tenn.), 610; Mullaney v. Spence, 15 Abb. Pr. 319. Contra, Hughes v. Macfie, 2 Hurl. & Colt. 744, 10 Jur. (N. S.) 682, 33 L. J. (Exch.) 177, 12 Week. Rep. 315; Mangan v. Attorton, L. R. 1 Exch. 239, 4 Hurl. & Colt. 388.

19 Townsend v. Wathen, 9 East, 277.

20 1 Thomp. Neg. 305, note. And see Union Pac. R. Co. v. McDonald, 152 U. S. 262, 280, where this observation is approved.

this alley, twenty-four feet from the street, was a platform, to be raised and lowered in receiving and shipping goods. This platform, when raised, rested against the wall, and was held up only by its own slight inclination, having no fastening. A child six years old, playing in the street, strayed into the alley, and was killed by the fall of the platform. The lessees of the factory were held liable, the court saying: "Now, can it be righteously said that the owner of such a dangerous trap, held by no fastening, so liable to drop, so near a public thoroughfare, so often left open and exposed to the entries of persons on business, by accident, or from curiosity, owes no duty to those who will be probably there? The common feeling of mankind (as well as the maxim, sic utere tuo ut alienum non lædas) must say this cannot be true that this spot is not so private and secluded as that a man may keep dangerous pits or dead-falls there without a breach of duty to society. On the contrary, the mind, impelled by the instincts of the heart, sees at once that in such a place, and under these circumstances, he had good reason to expect that one day or other some one (probably a thoughtless boy, in the buoyancy of play) would be led there, and injury would follow; especially, too, when prompted by knowledge that a fastening was needed."'21

In another

such case, the proprietors of a paper mill propelled by steam, in a sparsely settled portion of the city of Nashville, left two cogwheels geared together outside the wall, twenty inches from the ground, and twenty feet from the street, exposed, unprotected, and constantly in motion. A boy three years of age, playing near this gearing, was caught in it and his leg taken off. Eighteen years afterward, on coming of age, he brought an action for the damages. The jury found for the defendants; but the supreme court reversed the judgment, on the ground that the verdict was against the evidence.22 In still another, the owner of a coal yard had an elevator worked by steam close to the sidewalk. During an intermission of work the sliding door, by which it was commonly shut off from the street, was left open and unguarded, in consequence of which a child

21 Hydraulic Works Co. v. Orr, 83 Pa. St. 332. Compare Gramlich v. Wurst, 86 Pa. St. 74, where this case is approved.

22 Whirley v. Whitman, 1 Head (Tenn.), 610.

got under it and was crushed by the descending car. The question of the defendant's negligence was held to be for a jury.23 In yet another case, which has been much cited, and which goes further than any of the preceding, the defendant set up a gate on his own land, by the side of a lane through which children were accustomed to pass. A child of six or seven years of age, while passing through this lane, took hold of the gate, without the liberty of any one, and shook it, in consequence of which it fell on him, breaking his leg. This case went to a jury, and a verdict for the plaintiff was sustained.24 In another, the defendants, in possession and control of an unfenced lot, adjoining a public street in a city, stacked a large quantity of lumber in one large and irregular pile, so negligently, that an infant, while playing near it, was killed by one of the timbers falling upon him. It was held that the defendants were liable. 25 In another, a complaint which alleged that defendant, by its agents and servants, negligently removed the fences inclosing the premises, and left a privy vault unguarded and uncovered, within ten feet from the sidewalk of a public, traveled street, in consequence of which plaintiff's child, three years and ten months old, lost its life by falling into such vault-was held to state a sufficient cause of action.26 In another case, a mining company left a pile of coal slack, dumped from its mine, near a town where children were in the habit of going, which took fire by spontaneous combustion but which emitted no smoke or steam showing that it was a fire. A child frightened by one of the workmen, having no knowledge of the fire, attempted to run across it and was severely burned. It was held a case for a jury.27

23 Mullaney v. Spence, 15 App. Pr. (N. S.) 319. 24 Birge v. Gardiner, 19 Conn. 507. There is, how. ever, an infirmity in this case, consisting in the fact that there was no natural and probable connection between the act of setting a gate in an upright position without firmly securing it from falling, and the injury which actually happened. It would put the proprietors of real estate under an oppressive burden to make them insurers against remote and improbable injuries to children which may happen while trespassing thereon.

25 Bransom v. Labrot, 81 Ky. 638, 50 Am. Rep. 193. 26 Malloy v. Hibernian Sav. & Loan Soc., 79 Cal. 320, 21 Pac. Rep. 525.

27 Union Pac. R. Co. v. McDonald, 152 U. S. 262, af. firming sub nom; McDonald v. Union P. R. Co., 42 Fed. Rep. 579. Compare McDonald v. Union Pac. R.

it ;34 nor by the fact that its agent, having seen children playing with it, tied it with a rope so that it could not be revolved unless the rope were cut or untied;35 nor, under this doctrine, will a railway company be relieved from liability upon proof of a custom on the part of railroad companies generally to leave their turn-tables unfastened; nor will evidence of such a custom be admissible, because it is deemed in law to be a bad custom;36 nor is the railway company relieved from liability by the fact that it does not own the turn-table, provided it is in the occupation and control of it;37 nor is it at all necessary, in order to make out a case against a railway company leaving a turn-table unfastened and unguarded, to prove a willful intention to inflict an injury thereby.38 The general concensus of the cases cited in this section is to the effect that, for a railway company to leave a turn-table unguarded and unfastened is evidence of negligence to go to a jury,39 80 that it is error to nonsuit the plaintiff or to direct a verdict for the defendant, or to take the question away from the jury by a peremptory instruction, such as an instruction to the effect that the company is not liable for the act of leaving the turn-table unfastened if a child five years of age could not move it.40 Here, as in other cases, the law demands on the part of the railway company the exercise of reasonable and ordinary care in discharging its obvious social duty of not leaving a highly dangerous machine, peculiarly attractive to children, exposed to their trespasses. But such care is not the care

34 Callahan v. Eel River, etc. R. R. Co., 28 Pac. Rep. 104, 92 Cal. 89.

35 Ilwaco, etc. R. Co. v. Hedrick, 1 Wash. 446, 25 Pac. Rep. 335.

36 Ilwaco, etc. R. Co. V. Hedrick, 1 Wash. 446, 25 Pac. Rep. 335. Another court has, however, held that while it is competent for the railroad company to show that it secured the turn-tables or trucks inflicting the injury in the way customary with all railroad companies, such evidence is not conclusive on the question whether due care was exercised. O'Malley v. St. Paul, etc. R. Co., 43 Minn. 289, 45 N. W. Rep. 440. Another court has held that evidence of a custom on the part of railroad companies to keep their turn-tables locked is not admissible on their part in order to rebut negligence. Gulf, etc. R. Co. v. Evansich, 61 Tex. 3. See also Koons v. Railroad Co., 65 Mo. 592, 597.

37 Nagel v. Missouri Pac. R. Co., 75 Mo. 653. 38 Gulf, etc. R. Co. v. Styron, 66 Tex. 421.

89 Houston, etc. R. Co. v. Simpson, 60 Tex. 103.

40 Gulf, etc. R. Co. v. McWhirter, 77 Tex. 356, 14 S. W. Rep. 26.

which is usually exercised by railroads, because it seems that they usually leave their turn-tables unguarded and unfastened. They may be liable, although they have fastened them in the ordinary manner, that is, by an arrangement which children can easily detach or unfasten.41 The true test of their liability is what care a well regulated and prudently managed railroad company ought to exercise, in view of the great danger to children from this source.42 The question of the contributory negligence of the parents is liable to cut a considerable figure here, as in other cases of injuries to children; but it is to be observed that the law does not impute contributory negligence to the act of the parents in allowing children, except those of a very tender age, to play upon the streets or upon open places where they can enjoy the advantages of pure air and sunshine. On the contrary, for parents to restrain their children from so exercising would be a plain violation of parental duty, with which the law ought, if necessary, to interfere.43

VI. Evidence in these Cases.-It is sufficient that the thing from which the injury proceeded was within the occupancy and under the control of the defendant; it is not necessary to prove that he was the owner of it;44 as where the plaintiff was injured by the falling of piles negligently piled by the defendant. 45 In an action for personal injuries sustained by falling through a trap-door negligently left open, evidence that people were generally waiting by the trap-door for mail at that hour, has been held admissible, as tending to show additional reasons for the exercise of due care in closing or guarding the door. 46 In such an action, where the injury

41 Barrett v. Southern Pac. R. Co., 91 Cal. 296, 48 Am. & Eng. R. Cas. 532, 24 Am. St. Rep. 186, 27 Pac. Rep. 666.

42 Bridger v. Asheville, etc. R. Co., 25 S. C. 24.

43 The question of contributory negligence in this relation was left to the jury, in a case where a mother allowed her boy six years old, to go to a circus unattended except by his sister, age eleven years, who left the brother near the circus ground, neither she nor the mother knowing that there was a turntable in the vicinity. Nagel v. Missouri Pac. R. Co., 75 Mo. 653. Where the child, and not the father, was suing for the injury, the fact that the father was the watchman of the railroad company, whose duty it was to guard the turn-table, did not authorize a nonsuit, but the case should have gone to the jury. Ferguson v. Columbus, etc. R. Co., 75 Ga. 637.

44 Nagel v. Missouri Pac. R. Co., 75 Mo. 653. 45 Palmer v. St. Albans, 56 Vt. 519.

46 Engel v. Smith, 82 Mich. 1, 45 N. W. Rep. 21.

Supreme Court of California, March 31, 1896.

In California, where the title remains in the mortgagor, the offspring of mortgaged animals, begotten after the execution of the mortgage, ar enot subject to its provisions.

HARRISON, J.: June 22, 1893, one Cascalia executed a mortgage to the plaintiff's assignor upon a band of sheep which were then in Kings county, consisting of 1,700 ewes and 1,050 lambs. The sheep were afterwards removed to Tulare county, and in August, 1893, while they were in Tulare county, bucks were put with the ewes, and during the months of January and February, 1894, there were born, as the offspring of the ewes, 1,300 lambs. The court finds that the period of gestation in the case of sheep is about five months. April 18, 1894, Cascalia, in consideration of an indebtedness from him to the defendant, executed to the defendant a bill of sale of these 1,300 lambs; and on the 21st of April the lambs were delivered to the defendant, and taken away by him. The plaintiffs brought the present action to recover the possession of the lambs or their value. Judgment was rendered in favor of the defendant, and the plaintiffs have appealed.

It has been held in some States that the lien of a mortgage of domestic animals extends to the increase of the animals during the life of the mortgage, whether the terms of the mortgage inelude such increase or not; and, following these decisions, such a rule is stated in text books upon chattel mortgages. It will be found, however, upon examination of these cases, that the decisions therein are based upon the principle of the common law, which was in force in those States, that, by the mortgage, the mortgagee is vested with the title to the mortgaged property, and becomes the owner thereof; and that in the case of domestic animals, applying another rule of both

the common and the civil law, that "the brood belongs to the owner of the dam or mother, partus sequitur ventrem" (2 Bl. Comm. 390), he thereby becomes the owner of such increase; and, being the owner, his title in any action at law must prevail. The earliest application of this rule was in the case of a mortgage of a female slave-Hughes v. Graves, 1 Litt. (Ky.) 317—which was decided in Kentucky in 1822, and was afterwards followed in Maryland in 1836, in the case of Evans v. Merriken, 8 Gill & J. 39, which also involved the offspring of a female slave that had been mortgaged; and these cases are cited as the authority upon which cases involving the same question have been decided in other States, in some instances referring also to the principle upon which the rule rests, and in others merely referring to the cases as an authority. Cahoon v. Miers, 67 Md. 573, 11 Atl. Rep. 278;,Gundy v. Biteler, 6 Ill. App. 510; Ellis v. Reaves, 94 Tenn. 210, 28 S. W. Rep. 1098. The rule has also been stated in many other cases in which the question was neither involved nor decided. Kellogg v. Lovely, 46 Mich. 131, 8 N. W. Rep. 699; McCarty v. Blevins, 5 Yerg. 195; Gans v. Williams, 62 Ala. 41. And there is still another line of decisions in which it has been sought to uphold the propriety of the rule by holding that the increase which was in gestation at the execution of the mortgage was inferentially included therein, as a part of the mortgaged property. Funk v. Paul, 64 Wis. 35, 24 N. W. Rep. 419; Rogers v. Highland, 69 Iowa, 504, 29 N. W. Rep. 429; Edmonston v. Wilson, 49 Mo. App. 491. Another line of decisions limits this application of the rule, by holding that the increase is subject to the lien of the mortgage only for so long a time as the young are in a state of nurture from the mother. Rogers v. Gage, 59 Mo. App. 107; Darling v. Wilson, 60 N. H. 59; Forman v. Proctor, 9 B. Mon. 124. The want of logical sequence in this limitation has been felt by the courts, and some of them have sought to place their decision upon the fact that, while the young were following the mother, a purchaser from the mortgagor had notice by that fact that it was her offspring, and subject to the mortgage, and was thus prevented from claiming to be a purchaser in good faith. Placing the decision on this ground is, however, necessarily a repudiation of the principle upon which all the above cases rest; for, if the mortgagee is in fact the owner of the increase, the question of good faith in a purchase from the mortgagor is immaterial. Prior to 1873, the giving of a chattel mortgage in this State vested the mortgagee with the title to the property mortgaged (Heyland v. Badger, 35 Cal. 404); and, while this rule of law prevailed, the foregoing decisions would have been applicable. The civil code, however, went into effect at the beginning of that year; and under its provisions the mortgagor is not, by the execution of the chattel mortgage, divested of his title to the property, but still remains its owner, while the mortgagee has only a lien