Just before they intersect near Mariaville, New York, State Highway Routes 159 and 407 are connected by a short curving spur, which is also a State highway. To the west of this spur, the State highway maintenance crew was in the habit of dumping and burning grass and other trimmings from the shoulders of the nearby highways.
On July 19 and 20,1948, the highway crew dumped altogether three loads of dry cuttings at this spot forming a pile some fifteen to twenty feet long, six to eight feet wide and six to eight feet high. It was located in an open area some twenty to twenty-five feet west of the highway pavement, apparently just beyond the twenty-one foot shoulder. Whether it was on State-owned or private land does not clearly appear.
At about noon the next day, July 21st, the claimant, Charles Eason, aged eleven, and two other boys came riding along the spur on their bicycles, returning home from the nearby school yard where they had been playing. The claimant turned sharply across the road, rode into the pile and in some manner fell into it. Flames shot up, and he was severely burned.
The boy was not wholly normal. He attended a special school, doing chiefly vocational work, and, at of age thirteen, was still using a second grade reader. His father described him as a difficult child, who wanted his own way, was continuously getting into things and was an aggravator. Other than this, there is no evidence from which his mental age and capacity can be ascertained. On the witness stand he appeared to be alert and was normal in his responses.
The boy’s motive in riding into the ashes is not clear. There is some indication that he acted on a dare from one of the other boys, but the evidence is inconclusive. There seems at least no doubt that the act was deliberate and intentional. It is also not clear whether at that time the pile was still smoking. The boy first testified that it was, and later that is was not, and he also said that he thought it was out. This at least leaves no doubt that he recognized it as a pile of ashes from a recent fire. Indeed, since this was at least the tenth time that year that the highway crew had built a fire in that location, it would be reasonable to infer that he had observed the procedure previously.
On this state of facts, we are asked to find that the State was negligent in leaving the smoldering bed of ashes unextinguished and unattended. In order to do so, we must, of course, find that this behavior constituted negligence toward some person or class of persons to whom harm or danger might reasonably be anticipated, since negligence cannot exist in a vacuum. In this case, the State’s action could not be considered negligence toward persons making normal use of the highway, since they would have no occasion to deviate so far from the pavement. Even if deviation arose through some necessity, the pile of ashes would be unlikely to damage a motor vehicle which might run into it. It might conceivably cause difficulty to one operating a bicycle,
The only conceivable negligence, therefore, which would be here applicable, would be toward children, who, because of their immaturity, might be attracted to the pile and, not appreciating the danger, fall into it. This involved, necessarily, an excursion into the doctrine of attractive nuisance, which, as stated in the extensive annotation on the subject (36 A. L. R. 34, 38, supplemented in 39 A. L. R. 486, 45 A. L. R. 982, 53 A. L. R. 1344, and 60 A. L. R. 1444), is that “ one who has that on his own premises, or who creates a condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children, is under a duty to take such precautions as a reasonably prudent person would take to prevent injury to children of tender years whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected to attract them, come there to play.”
This doctrine has been the occasion of a very marked difference of judicial opinion, both as to its recognition and as to its applicability. Many States recognize it, although their tendency has been to restrict rather than to enlarge its scope. New York disclaims it (Walsh v. Fitchburg R. R. Co.,
On the other hand, many New York cases have denied liability where a child, either a trespasser or a bare licensee, was injured by some device or condition on the defendant’s premises. Among these are Walsh v. Fitchburg R. R. Co. (supra) (railroad turntable) ; Morse v. Buffalo Tank Corp. (supra) (gasoline drip can); Middleton v. Reutler (
Our conclusion, which is supported by the opinion in Tierney v. New York Dugan Bros. (
We doubt, in fact, that he would succeed even in jurisdictions which give full effect to the doctrine of attractive nuisance. It is by no means clear that the claimant was too young in fact, if not in years, to appreciate the danger involved in his course. His only definite deficiency was in reading ability, which proves very little concerning his knowledge and appreciation of the dangers of fire. There was, further, no evidence that children were accustomed to play in the vicinity of the fire. Too, it is debatable whether the pile of ashes constituted an attraction
Finally, the fire cases are almost uniformly adverse to the claimant. In Zaia v. Lalex Realty Corp. (
In the light of all the foregoing considerations, we have reached the conclusion that the claimant has failed to prove a cause of action against the State and has also failed to prove his own freedom from contributory negligence. His claim, together with the companion claim of his father for expenses and loss of services, must therefore be dismissed.
Findings of fact and conclusions of law in accordance with the above opinion may be submitted within fifteen days from the date thereof, otherwise this memorandum will be considered the decision herein.
Let judgment be entered accordingly.