Hayko v. Colorado & Utah Coal Co.

IN an action by Hayko for personal injuries the court directed a verdict for the defendant company and he brings error.

The plaintiff, a boy in his tenth year, with a playmate of about the same age, entered an open rough board shack, say 12 feet square, of the defendant on its premises, and abstracted therefrom a box of dynamite caps. The plaintiff tried to pick out the contents of one of them with a pin. It exploded and blew off parts of several fingers. The back of the shack but not the open door could be seen from near by, where people usually passed.

Two points are made for plaintiff: That the shack and caps were an attractive nuisance, and that, regardless of that, it was negligent anyhow to keep the caps where children could get them. It is, of course, claimed that upon either of these propositions the question is one of fact and not of law and so for the jury and not for the court.

Taking up the second proposition first: We know of no general legal duty either to children or adults who enter without invitation, express or implied, to keep dangerous things from one's land or to use care about them, and yet plaintiff's argument premises such a duty. It may be conceded, as far as this point is concerned, that I may not wilfully set a trap, e. g., a spring gun, that I owe a duty of care so as not to entrap one whom I have impliedly invited, as by a walk and steps built up to my front door, or a child whom I have tempted to trespass, and that what would not be a trap to an older person would be to a very young one, but these points do not reach the plaintiff's proposition and we do not assent to it.

Upon the first proposition: It is argued that the shack and the box of caps were, under the doctrine of the so-called "turn-table cases," an "attractive nuisance," to maintain which, even on one's own premises, was negligence; that plaintiff was a child, was attracted by them, was injured in consequence and so is entitled to damages.

The defendant makes several answers, one of them, which we think is sufficient, may be stated thus: The plaintiff was a trespasser to whom there was owing no duty unless under the attractive nuisance doctrine; that the negligence under said doctrine consists in maintaining an attraction which entices to trespass, not merely entices one after he has become a trespasser; that plaintiff could not see the box of caps till he had trespassed; that therefore the caps cannot be classed as the attraction; that the attractive agency must be an unusual thing, of unusual attraction, not an ordinary thing, and that the shack was usual and ordinary and so, as a matter of law, cannot be considered as an attraction to trespass.

This reasoning is sound and supported by the highest authority. In the original turntable case (R. R. Co. v.Stout, 17 Wall. 657, 21 L. Ed. 745), the counsel for the company deliberately rested his case on the one proposition that his client was not negligent, and the question of trespass was not mentioned. In United Zinc Co. v. Britt, 258 U.S. 268, 42 Sup. Ct. 299, 66 L. Ed. 615, the same court greatly modified the rule developed from the Stout Case, if, indeed, in the chaos of attempts to formulate a statement of it, there can be said to be any rule established by the decisions in which courts have tried to follow the original case. Courts have said and held that it is negligent to maintain on one's own premises any agency that is dangerous and attractive to children. This proposition has been condemned by some courts and even ridiculed.Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 55 L.R.A. 310, 92 Am. St. Rep. 481; Kelly v. Benas, 217 Mo. 1,116 S.W. 557, 20 L.R.A. (N.S.) 903. It leads to such absurdities that it is easy to ridicule it; for example, an apple tree bearing green apples in such an agency. It will not do to say that every attractive thing is sufficient to charge a defendant with negligence in enticing children to trespass, because there is nothing that can be said not to be attractive to a child. In the Britt Case it was held that the attraction must have operated on the child before he trespassed; so the attraction of the caps is irrelevant. See also McDermott v. Burke, 256 Ill. 401, 100 N.E. 168; St.Louis etc., R. R. Co. v. Bell, 81 Ill. 76, 25 Am. Rep. 269;Hardy v. Mo. P. R. R. Co., 266 Fed. 860; Troglia v.Butte etc. Co., 270 Fed. 75. The attraction must be unusual(United Zinc Co. v. Britt, supra; Kelly v. Benas, supra), and we think that, as a matter of law, a shack in a mining camp is not an unusual attraction. San Antonioetc., Co., v. Morgan, 92 Tex. 98, 46 S.W. 28; Tomlinson v.Vicksburg etc., Ry. Co., 143 La. 642, 79 So. 174.

There are other points in defendant's brief which might justify the direction of the verdict, but we prefer to rest our decision upon the grounds above discussed, viz. the owner of land owes no duty to a mere trespasser, young or old. While he owes a duty to one invited, and some attractive agencies may amount to an invitation to a child, yet such an agency must invite to trespass and not merely after trespass, and must be an unusual thing, unusually, extraordinarily attractive, not an ordinary matter like a pile of lumber or of bricks (Kelly v. Benas, supra,) or a railway station (Ling v. Great Northern Ry. Co., 165 Fed. 813), or a stable (Giannini v. Campodonico, 176 Cal. 548,169 P. 80), or a pile of cross-ties (Tomlinson v. Vicksburgetc., Ry. Co., supra), or an apple tree or a shack in a coal camp.

The case of Tramway v. Nicholas does not conflict with this decision because the attraction, viz. street railway motor cars, was in the street and not on defendant's premises; therefore the question of an attraction on defendant's own premises was not in the case and could not be decided, and the attraction was effective from the street where plaintiff had a right to be. In Public Service Co. v. Petty,75 Colo. 454, 226 P. 297, and Pueblo etc., Co. v. Sherman,25 Colo. 114, 53 P. 322, 71 Am. St. Rep. 116, the child was not a trespasser.

Judgment affirmed.

MR. CHIEF JUSTICE ALLEN and MR. JUSTICE WHITFORD concur.