Neal, Admr. v. Home Builders, Inc.

Neal, Administrator, Etc. v. Home

Builders, et Inc. al. 29,027. Rehearing Filed March [No. 1953. April 22, denied 1953.] Friedrich, Crmnpacker Crumpacker, & all W. Owen Hammond, appellant. for of Fauvre, Young Chambers, all

Fcmsler, of Indian- & apolis, Amicus Curiae. Peters, McHie, D. Edward

Glenn and Peters & G. Highland (of counsel), Hammond, appellee. all of filing J. This was action commenced

Bobbitt, complaint paragraph by the of a in one administrator Shirley Neal, deceased, to of the estate recover of damages alleged resulting from her death caused negligence appellees. of

The amended demurrer thereto was to state a want of facts sufficient was sustained for plead (appellant) refused to cause of action. Plaintiff against him, judgment from was rendered over and sustaining appealed. the demurrer he The which assigned. error the sole complaint are the amended parts relevant

The as follows: were defendants 10th, 1946 the “(5) On June story and a half of a

engaged in the construction Street dwelling on Ontario street located house frame with 178rd said the intersection near dwelling City of Hammond. Said Street being on the east side Ontario erected house was dwelling located house the second and was Street Street, north of 173rd east Ontario on the side of dwelling 10th, 1946 house was June said On Street. in stage completion partial in that the founda- completed, has been the side walls erected tion building. placed and and windows had had roof doors yet flooring been installed. No joists placed upon been or rafters con- level, structed or about the so-called street nor any flooring placed upon had been the rafters and joists supporting which constituted the structure upstairs so-called or second floor of the building. frame On the north building side of the approximately at street level there was an opening in the approximately structure 36" wide height, 90" in opening apparently purpose constructed for the installing a door or entry way to the structure. 10th, On June placed no barricades or other obstructions were opening purpose prohibiting the in the for the entry sons by per- into the structure children or other locality. in the immediate the inside of On the structure opening and within a few feet of the herein mentioned the defendants or either of them acting through caused to be portions agents employees had and placed stepladder, a wooden the lower joists of which rested the or rafters ground at upon erected or upper level and the extremeties rested joists or reached the or rafters which were flooring constructed for the of the so- called second floor. above described which “(6) The conditions 10th, 1946 had existed for several existed on June days prior days prior 10th and for several thereto. On June thereto, neigh- various children in the including

borhood, mentioned the the decedent above, playing were accustomed dwelling surrounding and about the house and neighborhood. These children had been accustomed making entry building through into the opening playing described and had been in and stepladder about the By joists and herein mentioned. building virtue of the fact that the frame was early stages completion, by and virtue of the steps further fact that no had been taken prevent small gain- and immature children from structure, ing dewelling entrace into house days had become on June 10th and for several prior peculiarly thereto a attractive location for neighborhood immature children in sport play. This condition fully was and had been defendants and each known it men of them in that apparent carpenters to the was and other trades- working employees as of the defendants premises. about Plaintiff believes and states fact to be the conditions described herein personally were known the defendant Francis L. Wilson who was in the making habit of daily inspection dwelling house under con- struction, in connection with his supervisory duties. “(7) On or about Monday, June ap- 10th at proximately 9- o’clock in the morning the three children of the defendant entered the dwelling through opening house structure on the north side of the purpose sport play for the Anthony their habit. and Clarence climbed the stepladder upper joists to the John, and rafters. youngest, caught, pinioned upon became stepladder attempted as he to follow his older up stepladder brothers to the second so-called story. Being unable to extricate himself and be- coming frightened he several uttered screams. The screams of the child were heard the decedent engaged while she was in her household duties directly her home across the street from the dwell- being ing Recognizing house constructed. the voice youngest realizing of her son and the child peril, home, was in the decedent left her ran across the street and attempting the entered structure. In to the because position extricate the peril child from his of stepladder being and under emotional stress peril child, of the plaintiff’s the de- cedent footing upon lost her joists the and fell causing astraddle one of them bodily injury severe plaintiff’s decedent from which she died on June 27th, 1946. At the injury time plaintiff’s of her decedent was pregnant seven months with child. “ (8) proximate The sole and cause of the death plaintiff’s of defendants negligence decedent was of acting and or through each of them agents employees, and following par-

ticulars : “(a) failing In to use reasonable care in bar- _ ricading semi-completed the entrance of the dwell- ing described, house they knew, as herein when or in the exercise of reasonable care have should known, years that children of immature and more particularly plaintiff’s the children of decedent semi-completed dwelling were atiacted to the house purpose play sport, for the time and of and and were at the place injury plaintiff’s of decedent using semi-completed dwelling accustomed to house as a sport play. and “(9) injury death, Prior to her and as here- mentioned, plaintiff’s inabove decedent was a healthy well twenty-nine years age.. woman plaintiff Plaintiff and the children of and the de- for the dependent the decedent were cedent required duties all household performance of nursing family maintaining rais- and in negligence ing As result of said children. remaining law of plaintiff and the heirs at said great Shirley were damage in that Neal suffered deprived care, services attention Shirley said E. Neal. Plaintiff fur- also suffered damage in required expend ther moneys that he was expenses for the of the last illness damage decedent and for her burial. The so suf- greatly fered and is in excess of Ten Thousand ($10,000.00) Dollars.” appellant If is to recover allegations under the complaint, his it must be done under the “rescue doc- clearly This trine.” rule is S., Negli- stated in 65 C. J. gence, §63, p. 554: has, through “One who negligence, his endan- gered. safety may of another be held liable for’ injuries person sustained a third attempting save such other injury.” from

It has applied been jurisdictions in which have

adopted only where the situation which in vites by rescue is created the tortious act of the defendant or one for whom he respon is S., sible. 65 C. J. Negligence, §124, p. 738. negligence sole charged

The act here is: The fail- appellees the ure under circumstances as set out in complaint amended the to “barricade the entrance to semi-completed dwelling house” described said complaint. negligence (1) consists of the existence

Actionable protect duty part of the defendant of a 168

plaintiff injury; (2) from a failure the defendant perform duty; (3) injury

plaintiff from such failure of the defendant. (1934), Harris v. Indiana General Service Co. 351, 356, 410; Pontiac-Chicago 206 Ind. E. 189 N. E.M. 254, (1941), App. 248, v. Co. Cassons & Son 109 Ind. N. E. 34 2d 171. any

The absence one of these elements renders Elder, bad for insufficient facts. Receiver Rutledge, (1940), 459, 464, Admx. Ind. 27 N. E. v. 358; Pontiac-Chicago E. Son, 2d M. v.Co. Cassons & supra. negli-

The second and third elements of actionable gence dispute, question are not in hence the sole is: legal appellees Did the owe to the children of Neal, deceased, Shirley put something E. across doorway opening semi-completed building premises? keep them out—off greater Appellant required contends care is dealing years with children of tender than with older age persons have reached who of discretion and next Friend v. McCormick Penso, by relies et al. 116, 156, 313, (1890), 125 Ind. 25 N. E. 9 L. R. A. v. 211, Rep. (1932), Drew Lett Am. Ind. St. 547, 89, support. App. 182 N. only degree required of care al

In this state ways ordinarily prudent the care which an person would exercise under same or simi Jones v. Cary (1941), lar circumstances. v. 944; Fields Hahn E. 2d 37 N. 365, 375, App. 57 N. E. 2d 955. Ind. recognizes this court law rule which Thompson ably Ashba v. stated

in Indiana App. 102 N. E. 2d (1951), 122 Ind. 521, as follows: negligence degrees in the State of are no

“There

169 degrees care. The Indiana, neither are there subject as follows: stated has been law “ degrees negligence, it can no Tf thére duty. degrees of can be no follow that there must nothing Duty requires law term. The will excuse is absolute nothing duty; than less. more “ “slight care,” “great ‘The use of such terms “highest degree care,” care,” like or other ex indicating pressions quantum . . . of care the special law exacts under conditions and circum stances, misleading; when so used province jury, constitute an invasion of the whose function it is to determine what amount of required up duty imposed care is to measure to the by law particular under the facts of the case. The imposes duty cases, law is'the Berry, 1919, but one in such and that duty to use due care’. Union Traction Co. v. 514, 655, 188 [657], Ind. 121 N. E. 737, E.N. A. L. R. [32 1171]. 124 required “The care case, varies with each with facts; each set of .... Cary, 1941, Jones et al. v. 268, 944; Ind. 219 of 37 N. E. 2d Union Traction Co. Berry, supra; v. Rutledge, 1940, Indiana Elder v. 459, "217 Ind. N. 27 E. 2d 358.” Heiny, See also: Pennsylvania Admx. v. R. Co. (1943), 367, 221 145; Ind. 47 N. E. 2d Jones v. Cary (1941), 219 279, 280, Ind. N. E. 2d supra; Erie, Lake (1906), etc. R. Co. v. Ford 205, 212, 969; 78 N. Corp. E. Indiana Service v. Schaefer (1936), 101 App. Ind. 294, 298, 199 N. E. 158. safety exercise care for the of another existing relation

brises as a matter of law out some (cid:127) province parties, and it between a relation whether such the court to determine gives duty. Traction Co. rise to such Union v. 514, 520, Berry, 121 N. Ind. Admr.

124 N. E. L. R. 1171. A. guilty determining appellees were In First: whether whether of actionable first consider negligence, we shall alleged bring within the common the case here the facts law rule. applicable general here is law rule common 450, 451, S., Negligence, §27, pp. in 65 C. J.

stated cited, there as follows: supported the authorities higher general no or “The is that different rule trespasser duty respect with to an infant exists in the case of an than would exist trespasser, adult ordinarily so that there is no duty trespasser except to toward an infant injury. refrain from willful ingly, duty passers, Accord or wanton ordinarily it has been held that there is no anticipate presence of infant tres keep them, guard a lookout for to_ against intrusion, keep property toor in such safe, proper, particular or condition as not to en danger they trespass them if thereon. Infant tres passers ordinarily premises take the as find them.” The children here involved are trespassers either licensees permission sufferance or and the above applies rule equal with force to all. It seems clear to us that the herein does not state facts suffi- cient legal to constitute a general within the common law rule above stated.

Second: Next we shall consider whether the facts alleged bring appellant’s herein clearly case within the defined limits the attractive nuisance doctrine which exception is an to the common law rule.

The rule under which the doctrine of attractive nui- operates sance is stated Jur., §151, Am. p. 818, as follows: “. . The . doctrine of nuisance, attractive it said, has been application limited its to cases danger

where latent, and affords no basis for a recovery injury where complained of was produced by peril of an patent obvious or char- danger acter. A only is not obvious but natu- considering instrumentality ral, from which arises, meaning is not within the of the attractive doctrine, the reason that an owner nuisance occupant parents is entitled to assume guardians or avoid such a aof child will have warned him to peril. Pits excavations on land embody dangers readily apparent no everyone, very young even children. For this reason, a and proprietor obligation, is under no rule, guard places, to fence or otherwise such injuries he will not be liable for to children may who have fallen therein. . . .” And, further, S., Negligence, in 65 C. J. §29 p. as follows: “It has been considered that the attractive nui- applies only sance danger doctrine where the latent, and patent, not when it is for the reason inefficiency

that advanced of children who are so little recognize as to be unable to patent dan- gers should not be allowed to shift the care of them parents strangers from their the impose or to property owners of liability where otherwise none would exist.” Appellant concedes that the facts this case do not bring it within the “attractive nuisance” doctrine and in this we concur. semi-completed

While dwelling might house have been attractive to the deceased herein as place play, allegation there is no that a unsuspected

latent danger, neg which was ligently created or appellees, maintained them, or either present building. In the allegation absence of such an would not sufficient if the attractive nuisance doctrine were recovery. the sole reliance for building

A ordinarily under construction does not within come the attractive nuisance rule. Puchta v. (1950),

Rothman App. 285, Cal. 2d 221 P. 2d 744; (1925), State v. Bealmear 149 Md. 66; A. Witte 126 Mo. v. Stifel Rep. 668; W. S., S. 47 Am. Negligence, St. 65 C. J. §29, (12i), p. 475. Having

Third: concluded that the facts herein do bring appellant’s case within the attractive nui- rule, sance it appellant’s complaint then follows if upon is sufficient it must rest some variation of the exception attractive nuisance rule or some other to the common law rule.

The attractive nuisance rule has been extended jurisdictions under some certain limited conditions years trespassers. tender where children of are known generally applied The rule which is circum- under such S., Negligence, §28, p. stances as stated in 65 J.C. particular (1) four involves conditions: Where “knowledge presence tres- there is infant position peril;” passer (2) in a “where one who is charge dangerous machinery sees a child of tender intruding may years where be endan- into machinery;” (3) gered by where “one who main- such exposed something dangerous to children and so tains coming in contact of their there is a likelihood being injured it . . . notwithstand- with, . . . (4) the owner ing trespassers “when they may be likely to tres- are know that or should children knows a which he maintains part land on pass his dangerous, them . . .” to likely to be condition which is only applies above part the rule noted The first already prem on the' where children to situations they in knowledge that were ises, and with peril the owner position of failed to.take - injury them. to avoid necessary precaution (cid:127)v to to barricade charged failure here The keep out of the semi-con entrance —to injury after to avoid to them house —not structed bring Hence, appellant his case does not had entered. the above rule. within section of complaint allegation appellees that no There is kind, charge machinery any dangerous were in applica- of the rule has no section hence second tion here. allegation appellees complaint no that

The contains something dangerous the child maintained injured came in and was with which it contact appellant's thereby. Hence, case cannot rest upon the the rule. third section of complaint alleged appellees that knew

It play in the semi- children were accustomed only require question. The constructed house bring necessary ment then case bar allege is, complaint the rule that the within of§4 appellees or of them one facts sufficient to show semi-completed house a condition within the maintained dangerous In likely all children. that would the rule the basis for this section of the cases cited as present unnatural artificial condi there was some inherently dangerous and involved tion which was children; the court and where risk unreasonable negli liability only out of the it arose there was a held maintaining gent such condi the landowner in act of dangerous manner. tion in Angelier Yeast & Products Co. Red Star

See: v. 351; (1934), W. McPheters 254 N. Wis. v. 437; (1939), 526, A. 2d 125 Conn. Loomis Wolfe v. A. 608. Rehbein 123 Conn. alleges only which the condition con-

being premises under here maintained purposes demurrer sideration 174

must be considered the “artificial or unnatural con- any, if dition” which constituted an “unreasonable appellant’s risk” to a stepladder was wooden “on building the inside of the and within a few feet opening” complaint, described and which joists ground extended from on the floor to floor, “upstairs.” or second It cannot be stepladder, extending said that a from dwelling first to the second floor of a house under

construction, for carpenters use the course work is an “artificial condi “inherently dangerous” tion” which is to chil practice dren. That it is a natural and usual use type another, ladders of one or as a means car go penters and other workers to from one floor performance another in the of their duties in connec building dwelling house, tion with the of a is common knowledge. always danger there While is some involved fence, tree, when a a small child a a climbs ladder or open stairway, yet or it cannot an be said that either dangerous inherently “dangerous is or is that either instrumentality,” per se. dangerous”

“Inherently danger means that is con part tained in and inherent of the constitution of itself, instrumentality all condition times, require special such a manner as to precautions prevent injury, danger simply arising negligence from mere casual collateral City Craig others. Brown v. 350 Mo. 1080, 1082; Thompson (1941), Emery 168 W. 2d v. S. 479, 480; City 148 W. 2d Fackrell v. 347 Mo. S. Diego 625, 629, (1945), 26 2d P. San Cal. 2d App. 773; (1951), 89 L. R. v. Bonnett U. S. A. Vale F. D. 2d 339. C. danger naturally expect result

We do not will entering dwelling climbing stepladder or from from produced some house under construction unless negligent independent or construction act of the ladder danger naturally expected itself; and where not “inherently something it is not result in the use of Jennings dangerous instrumentality.” Vincent’s v. (1940), Ky. 2d 541. 145 S. W. 284 Admx. mortar “wooden horses” and

It held that has been by appliances in car- simple common use boards inherently dangerous others, penters are not and doc- the attractive nuisance within instrumentalities App. 477, (1933), Ray Tenn. Hutchison trine. v. 948, 954. W. 2d

S. causing apart stationary came which barn ladder A “dangerous a employee held not to be injury was to an Md. instrumentality” McVey in v. Gerrald 192 A. 793. stepladder a either dwell- believe that We do not as a “condition” ing is such under construction house meaning dangerous within the likely children be of the rule. of §4 any there is whether next consider

Fourth: We would which law rule exception common to the other alleged complaint herein. in the apply to the facts employ such an attempts to apparently Appellant position relies support of his exception v. Jones Belt R. Co. Harbor Indiana a statement follows: 2d as 139, 145, 41 N. E. (1942), 220 Ind. the children presence probable if the “And may ordinary care, this duty to them of raises upon the arrive before the be violated ought leaving things premises, undone coming. anticipation of their done in have been This gence.” negli- may ‘passive’ it is but nevertheless italics.) (Our n eight

That hoy years age case in which a falling heavy playing was killed of a door while freight empty in an standing car on a switch track. thing alleged which was left undone case and to which the court referred in the statement quoted, independent negligent above was the act of failing trainman in to hook the door. The charged negligence, there (1) four acts of failure to warning tracks, (2) put up signs, fence the (3) watchman, failure (4) to maintain a failure to court, lock the door so that it would fall. This p. 143, allegations Ind., disposed of 220 the first three as follows: company “A railroad owes no to children living vicinity yards switch its to erect prevent

fences trespass- or other barriers to ing. [Citing obligated Nor is it authorities] have keep right watchman to way children off its [Citing Signs cars. are re- authorities] not quired.” complaint The there was sustained the sole allegation that decedent and other play- children were ing gondola type the floor of railroad car “when warning heavy without at the door end of the car charge negligence fell and killed decedent.” The the failure it to lock door so would not fall.

Further, in Indiana Harbor Belt R. Co. v. Jones (1942), 361, supra, page Ind. E. N. 2d at 145, this court said: “If prop- he one who owns or controls the [the erty upon injury or which the is bound occurs] presence

to know of the of children must also he experience they know from common that fre- quently danger, ought heedless and he not start in something likely motion that to cause injury.” However, complaint in the at bar contains case allegation anything motion, appellees no started any act, something permitted or failed to do have after children were on should done the said premises, injury which resulted to the child put position peril. or which it in a keep The failure to said children out of the house— something ought premises not off the “which —is anticipation” coming have been done of the meaning children within the of those words as used case, supra. applied in the Indiana Harbor Railroad thing stated, left “undone” As above in that case alleged was the failure to hook door to the car so they were in that it would not fall on the children after trespassers car, permission either as or licensees sufferance. charge in the case at bar does negligence any independent appellees act of either passive, failure such as the to lock door active or case, supra, which in the Indiana Harbor Railroad injury appellant. might have to the children of caused charged by stated, only negligence act of As above appellant the entrance —to is the failure to barricade keep out is not sufficient house.. This bring within the factual circumstances the case bar case, Belt Railroad does Indiana Harbor appellant’s position. support to not lend App. etc., Cleveland, R. v. Means Co. upon by ap- relied 108 N. 104 N. E. injured after a a where child pellant also case negligent independent premises on the he was agents. held that that case it. was appellant’s In act of they were on duty protect children arose to after by permission page premises licensees as App., said: Ind. the court of 59

1T8 company duty “. . . such owes no to either keep presence, to a lookout for his [adult infant] duty but it there ordinary owes each the to care after knowledge presence, of such actual or con-

structive, .[Citing . . . authorities].” Cleveland, In Means, etc. R. supra, Co. v. inas Indiana Jones, Harbor Belt R. supra, Co. v. there was an inde pendent negligence act of injury caused the to permissive licensee after he had entered premises. In view of the court’s appel statement that duty lant owed “no to either keep to [adult infant] presence,” for lookout his it is difficult to see how any way supports appellant’s this case contention appellees that legal duty case at bar owed a to barricade the dwelling entrance to the house described complaint. in his

Appellant upon Penso, by also relies Next Friend v. McCormick et al. 25 N. E. 9 L. R. Rep. A. 21 Am. St. supra, to sustain appellees his contention that owed to the chil appellant dren of to barricade the entrance dwelling keep entering. house to them from The facts case, alleged complaint, that ap are that pellees many years operated had for a saw mill in the Rockfield, Indiana; town that the mill was situated public part town, grounds in the most and that surrounding mill were not and never had been en closed, and were used the citizens of the town as passage-way another, from one street aas playground town; for the children of the immediately prior injury months to the time of appellant there was a mound of ashes from four high deposited five feet which had been from time to by appellee grounds; time on the mill the heat escaped from the ashes had mound constituted a favorite where children were accustomed gather day injury, play; that the without giving any appellant to the the notice either to public generally, appellees the excavated and removed twenty the of ashes from one side about bushels burning cavity hot filled the so made with mound engine; that no the mill from the fire-box of ashes given warning that the no erected and barriers were dangerous; point and that at that was of ashes mound point cooled to the of the hot ashes soon the surface presented appearance re- the same as the where mound while underneath the surface was mainder of burning heap, and this smoldering, while in condi- crossing mill-yard appellant crossed over tion do, ashes, with- he was accustomed mound of stepped any part into mass fault on his out injuries. In burning severe and suffered cinders alleged an the facts show be that it will noted case ashes) dangerous (the which hot inherently condition from appellant and which resulted unknown appellees. negligent No such independent act an alleged complaint at in the case in the a situation is support appellant’s lends no The Pensó case bar. sustaining authority his com- and is contention against of facts. a demurrer for want plaint as Finally, that the failure to appellant asserts since danger give warning and to barricade notice or was, mine under the coal to an abandoned entrance App. Ind. circumstances, Lett in Drew v. negli- 547, supra, be actionable held to 182 N. failure to gence, barricade it then follows dwelling at in the case bar must house entrance to case was held the Drew so held. theory “upon action seeks' cause of to state a nuisance’ as ‘attractive the doctrine invoke Appellant juris.” non sui admits applied attractive, apply nuisance doctrine does not bar and we have concurred that con- case at Nevertheless, principle he which was clusion. asserts p. applied which is Drew case and stated App., as follows: “ apparent probability danger Tt the rather rights property than the that the determines duty required and measure of care of the author of contrivance, such a ing cumstances may ordinarily duty the of avoid- danger may known to others under some cir- operate require persons to care for who be at danger right.’ ”, the without application makes but no principle to the facts complaint, stated in his and we are unable to see how applied. it can be so upon by The ap- authorities relied pellant support do not contentions, his and the rule which he seeks to invoke apply does not to the facts complaint. stated in his

It is tíre in persons law Indiana that who maintain dangerous agency or premises instrument on their duty

owe to infants and adults alike to use protect guard reasonable to dangerous care or agency instrument, give or timely warning or to having of such knowledge condition after of the same. person reasonably And where the anticipated could have persons might that children or other come into contact dangerous agency with the instrument, and such a reasonably contact sure to injury, inflict serious he steps should take whatever reasonably necessary are prevent injury likely to to who those come into to contact therewith. Harris v. Indiana General Service Co. supra. Ind. 189 N. E. dwelling A is, opinion, semi-constructed house in our dangerous agency not a or instrument within mean- ing rule above stated. case, the Harris under the circumstances

While guard duty may to supra, have existed there so, but, if voltage question, high tower dangerous inherently con reason of arose specific independent to a the tower due dition of (defendant). company This is negligence of the act of bar, and presented in case at circumstance not the circumstances if under the it does follow trespassers duty company owed a to the Harris case guard by permission or licensees sufferance the children tower, appellees owed the entrance to semi-con appellant barricade dwelling keep chil them and other house structed might play vicinity from come there to who dren any, duty here, arose if entering premises. The had become licensees of said deceased after the children legal duty keep Appellees owed no by sufferance. premises (out of the semi- appellant’s off in Indiana dwelling). authorities constructed support jurisdictions this conclusion. other (1942), 220 Jones Belt R. Co. v. Harbor In Indiana 361, supra, held that 139, this court E. 2d 41 N. Ind. living in duty to children company no owes a railroad yards erect a fence or other vicinity to of its switch (to prevent keep them the tracks off barricades a watchman erect trespassing), to maintain or premises. signs keep them off Ind. (1915), Cleveland, R. v. Means etc. Co. In 59 375, supra, the 785, E. 383, 402, 108 N. 104 App. N. considering duty Court, of a Appellate Indiana there was trespasser, held that company to a railroad keep trespasser infant or adult duty to either no presence. his a lookout for again in Holstine held in this state Appellate Court

The App. Ind. (1922), 77 Director, Railroads etc. v . 582, 599, 308, 184 N. E. company that a railroad owes duty trespassers no to adult or infant keep “to a look- presence, out for his [their] but owes each of them duty ordinary care after it has actual or con- knowledge presence, structive of such . . . (1925), Ky. 30,

In Hines 278 W. Smith v. S. company L. it was held that railroad 45 A. R. duty precaution take no to children to to safe owed danger climbing guard them of the them warn top freight thereon to of a car the handholds company standing yard when the knew in its play page on the car. At of children custom W., it is said: S. danger-

“In the case now before us there was no mechanism or instrumentalities about the ous The car. complained and ladder handholds of were not dangerous. . . The . child was not caused to fall by any parts from which, safe; car the movement of of its judgment, to his indiscreet seemed to be by he fell his own inadvertence and misfor- tune.” Kayser Lindell v. Minn. 75 N. W. damages was an action for injuries because year suffered a three boy and one-half old who fell unprotected from an premises wall on defendant’s while playing property thereon. The court there held that the owner, and, page 1039, W., liable was not 75 N. said: that, premises “It true if keeps the owner of trap, person coming them a concealed and a upon he case. it was premises injured thereby, invitation is may mantrap recover. But there was no in this plain wall was seen. The child knew there, daytime. and fell off of it in the While premises may owner of owe more ato - coming child than upon to an premises adult his by implied invitation, yet guard he is not bound to every stairway, cellarway, retaining wall, shed,

183 so premises, on his open window tree, precipitous ato climb cannot a'child such and fall off.” 266, 30 (1943), Pa. Reading Co. McHugh v. In 319, that there held it was 122, L. R. A. 2dA. whereby safeguard steps duty or otherwise fence to

no an abut gain to access accustomed were children 2d, 123, A. said: page wall, and at ment uniformly has trespassing children “Liability to arising latent dan- from accidents limited been wires, pits machinery, live unguarded gers, such as from results trap This distinction open doors. liability forth set of the conditions of one Restatement (c), Torts, §339, that ‘the clause youth . do not . . realize because children the risk 925) (p. the comment . . . .’ In involved says: possessor ‘A the Restatement this clause on duty keep much of his under so land is . . . subject trespasses to the as he knows to be land artificial which young free from conditions children risk of death or an unreasonable serious involve bodily keep young require them. him harm to This does free from conditions which even his land likely to full children are observe and the they likely extent of the risk involved in which are purpose duty protect to realize. The of the is to dangers unlikely from tc children appreciate protect against and not to them harm resulting from their own immature recklessness ” danger.’ the case of known Kentucky In Ky. Coon v. & I. T. (1915), R. Co. 173 S. L. R. A. 1915D W. the sole act alleged negligence was the failure defendant guard retaining protect prevent wall to climbing upon it when the from defendant knew that play top children were accustomed to wall. recovery sustained and denied. A demurrer was Baird 195 Ark. 112 S. W. In Sanders v. held that no rested defendant it was 2d 184 signboard a build fence or other inclosure around a prevent playing children who were accustomed to sign. vicinity climbing upon from O’Callaghan Engi-

It held in v. Commonwealth 127, neering Corporation (1928), N. Y. 159 N. E. duty resting no 60 A. L. R. that there was building upon prevent a contractor either to children leading using steps the roof of shed which from adjacent building over a to a was erected sidewalk protect falling them from off under construction or to constructing railings. proper page steps At of 159 N. E. the court said: railings, ladders, “Steps even are not without dangerous

inherently streets unsafe even for children. Children climb other objects which make the often do fences, play upon ladders, any object may They be at hand. dó at times play boys fall and break limbs. The of is not with- boys out its For it hazards. some would otherwise duty be without zest. Even if there be some on one lawfully using city streets for the construction building aof not to create a condition which is in- dangerous herently might play for children who there, the them Accidents do any duty he is not under affirmative to make place entirely protect safe children or to against ordinary boyhood. of hazards happen, may hardly and it be said defendant was protect under a possibility the children from flight of a fall from steps presented dangers greater no than boys encounter play. in their usual might As well it plants be said that of owner who a tree on the side highway support should the limbs lest weight break under boy of a may who climb it, into may that an owner a wall in front of an area lest walking play top should fall. “Indeed, in case, if the placed defendant had a rail on the steps side of the may be doubted game whether sliding down the rail would quite dan- quite as attractive and not have been as climbing steps.” game gerous dwelling ele building an essential houses is The general. society progress in the life and ment said, Direc in Holstine v. Appellate of Indiana Court App. Ind. 134 N. tor, etc., Railroads “ go life supra, page ‘The must business ” further, and, forward,’ property dimin- use of “Restrictions use, pro character of the beneficial tanto the ishes imposes restrictions as seldom the law and hence as grounds. strongest except upon the possible, never impose reluctant to re- law which is upon use of his land even when an owner’s straint causing damage beyond boundary, un- his is more upon willing impose restraint a user which is to only dangerous his to those who intrude land.”

And, page 595: at company present like railroad in a case “If a duty, duty likely a such is not to be held under

be duty such an lower than a to use amount set care, probable precautions it im as will render use such harm will result children found that many right way. upon cases would in its Such rule require precautions only which could be car safely expense prac at out or in a manner ried tically prohibitive of beneficial user. As said (1888), Keith Lord Justice MacDonald Ross v. 4th Series 86: ‘To that Scotch Session Cas. hold

every ground piece which contains some something might dangerous or that be to children only by must be so that fenced children can enter practically siege lay what is a mode of would be to proprietors.’ Any an intolerable burden on less probably regarded efficacious method would not be affording probability reasonable that no child catastrophe ity of major would occur. Such a rule in the probably of cases would mean that the owner ground the land make practically must his im- is, pregnable children, proof. child This many compel prof- the cessation of instances would duty itable of a user. Where existence is once danger admitted, jury that the will be too swift

to favor the breach of it does afford a sufficient abrogating duty. reason for ques- But when the tion is whether in a exist, whether a shall be held particular ought case the law to im- pose duty, when line, the case is on the border strong and when given against can reason es- tablishing duty, probability then the rule contended for may would misapplied often be given great well be weight even decisive influencing against courts the establishment of the alleged duty.” It is Cleveland, also said in etc. R. v. Co. Means App. 383, Ind. 104 N. E. 108 N. E. supra, page at 407: obligation simply that “Its which should attach every and under the law ‘attaches to member society personal when he to exercise undertakes right may in a manner which affect the welfare safety obligation member, of another of rea , (and this) may, times, sonable care . . burden, seem to abe but its enforced observance wrong, applied never a whether to railroad com panies Edgington Burlington, individuals.’ v. etc., [(1902), 410, R. 95, Co. 116 Iowa 90 N.W. L.R.A. supra 422, and 446. Rea annotations] sonable impose any duty care in such cases does not presence where the merely of a child its on tracks possible imposes where such or care on the company an unreasonable limitation the on usual ordinary and pertinent property. use of its A correct and affecting phase statement question will be Chicago, found in the case of etc. Krayenbuhl

R. Co. v. (1902), 889, 902, 904, 65 Neb. 880, 881, 91 N. W. 59 L. R. A. it where true, said: ‘It is Terry as said in Loomis v. [1837], *500, *496, Wend. [N. 31 Am. Dec. Y.] go forward”; “the business of life must the by means which it is carried forward be cannot absolutely Ordinarily, rendered safe. can be best by private the use carried forward unrestricted owner; property by the the law favors therefore the such use to the fullest extent consistent with which, standpoint, purpose main from a social forward, namely, pub- the such lic to such a balance is carried business good. Hence, to determine the extent order bearing may enjoyed, its on such use account, purpose must be taken into and main advantages and dis- between its struck whole, advantages. If, such use defeats on purpose, promotes it should the main rather than hand, if the restric- permitted; the other on not be tions be operate, should proposed so would kind, Hence, of this all cases . imposed. . . negligence, question in the determination regard and location character be had to the must they are premises, purpose for which pre- therefrom, injury used, probability of injury, and necessary prevent such cautions relations beneficial precautions such bear ” premises.’ use of the App. Puchta v. Rothman 99 Cal. 2d 744, 748, supra, allega- P. 2d was a case in which negligence “wilfully tions re- were that defendants stair-way barricade, erected theretofore moved measure, wilfully safety and as a said defendants stairway guard, enclose, or block said failed bar, There, italics.) ap- (Our in the case at roof.” engaged pellee building was construction of a alleged injury, which, partially the time of the was building completed. floor of the en- The second paper paper tirely and under the with tar covered a ventilator or hole for it was a totally concealed completed stairway to the skylight. had been sec- played in appellee knew that children floor ond and, protect building in order partially constructed floor, danger second known specific them from stairway. had barricaded the The barricade was re- stairway moved and unprotected while the appel- lant, ten-year-old child, of went to the second floor building play stepped the paper' and the tar opening, through over the concealed fell to the first injured. seriously floor and was A demurrer was sus- ground allegations tained the the of the com- plaint were not sufficient to state a cause of action within the attractive nuisance rule. While we do approve disapprove ruling here either the on the reasoning demurrer, yet opinion some in the applies equal with force to the facts in the case at bar. page 747, 2d, At of 221 the court P. said: any “It is self-evident that barricade at the foot stairway building, of this of sufficient size strength keep and stairs, going up children from destroy very purpose would for which the stairs completion were built and retard the building.” We equally believe it true in the case at bar that any barricade at the entrance semi-completed to the

house, strength size keep sufficient and building, destroy out of would very purpose opening for which the is main during building. tained construction of the It knowledge carpenters other and workmen common ingress egress openings and a means use such building performance of their out of into and thereof, the construction connection with duties in replace the barricade require them to remove building would or out of every went in time on the completion an undue burden delay its Chicago, R. Fox property. etc. Co. v. owner 268, 275, 81. App. 70 N. Ind. dwelling not an or builder of house The owner upon safety come of children who insurer building under construction while into the or licensees, by permission trespassers or as either play. sufferance, purpose or juris sui is In- a non simple that child fact “The negligence a jured import to defendant. will not argued years is may that a child of tender It be law protecting hence the incapable imposes duty itself and primary duty upon landowners. The by protecting by nature and law legal upon parents power have devolves their who it control their actions and whose mora.1 entering keep is children from dan- gerous obligation of premises equal least —an obligation the moral fence the landowner2 to Director, them out.” Holstine v. etc. Railroads App. 303, supra. 134 N. It cannot be deceased, said that either the child or the case, injured by coming in simply could have been building. in contact with said Nor could either of them injured by have been therein without some overt act them, directly brought one of about or her his injury. alleged stepladder

It that which the is not “caught” “pinioned” any in child herein was or was dangerous kind, any way than other of like more way insecurely placed. any in defective or that it was broke, alleged it fell or moved. It it that Neither complaint stepladder that appears from being purpose.for which it was for the perfectly safe used. anything uncommon there is be said

It cannot They present in stepladder. a about unusual 11, pp. 434 for a Review, Vol. Law Harvard 2. See: liability to children landowners comprehensive treatment of permission. entering without nearly every danger falling home from them is known to children well as to adults. While there may danger be some a incurred small child who stepladder, danger climbs a it cannot said that such reasonably pru- uncommon or of such nature that would, dent men under circumstances related something appellant’s complaint, put across the en- building trance described climbing entering step- keep on a children from complaint. placed ladder as described by any Measured rule to which attention has our been directed or which our own we have research par find, been able cannot be said building dangerous tially constructed is such instrumentality require the or as to instrument something the across entrance owner or to erect builder the purpose preventing children of the thereto for vicinity playing therein. When from the “location of premises, purpose used, the for which are the the therefrom, injury precautions probability the neces precautions sary the relations such prevent to . . . and premises” the are con use of bear to the beneficial in the com facts as stated in relation to the sidered appellees were herein, conclude plaint we must something duty legal or to barricade under no building semi-completed to entrance to across entering playing from appellant’s children keep therein. appellant under which the rescue

Since doctrine only applies where situation recover to seeks act of the tortious created is rescue invites respon he for whom is one the defendant supra; p. Negligence, §124, sible, S., J. 65 C. to alleged the failure here only act tortious ap building, and since to entrance barricade legal pellees duty child, owed no to who became frightened climbing stepladder, while to barricade building keep out, appellant the entrance him to cannot recover doctrine. under rescue legal owing complaint duty herein fails to show children, by appellees appellant’s hence one of the negligence is absent and the elements actionable sufficient to state cause does state facts thereto for this reason was A demurrer of action. court judgment the trial properly and the sustained be affirmed. should

Judgment affirmed. Gilkison,

Emmert, separate J. dissent C. J. with opinions.

Dissenting Opinion agree majority with the am unable J. I Gilkison, following reasons: opinion course, general principles applicable of law Of consuming negligence cases, many pages majority opinion, reason for correct. There is no no opinion there dis- incorporation in the since agree concerning with the I cannot pute But them. Indiana, making as follows: the law statement higher general different rule is no “The trespasser respect an infant with exists trespasser, of an adult in the case exist than would duty toward an in- ordinarily1 no there is that so fant or except refrain from willful trespasser to might and modified general rationalized 1. Even rule this liability authorities, that by to infant made the statement so often knows, or aas trespassers “where owner is incurred danger resultant apprehend, ought person to reasonable injury unexperienced young to understand too to children judgment, or care meaning trespass, to exercise or the fact always seems, considered has been safety.” This, it for their own 758, pp. J., §155, 760. “ordinary” 45 C. situation. not least cited. there 24 and authorities Note 192 injury. Accordingly, wanton it has been held ordinarily ence anticipate pres- there no trespassers, keep infant a lookout for

them, guard against intrusion, keep or to property safe, proper, particular in such condi- endanger tion as thereon. they trespass them if trespassers ordinarily Infánt take the premises find them.” quotation S., This is from 65 J. Negligence, C. §27 pp. 450, given 451. opinion No reason is why in the paragraph should be out as set the law instead of part section paragraphs same set out two paragraph later in the I think section. the latter more correctly always states the Indiana, law as it has been in today always. and as it should be It is as follows: cases, however, expressions “In some there are very young to the effect that trespassers has no children cannot be regarding trespassers or that the rule application where children of immature years are A discretion, concerned. without child although trespasser, occupies legal attitude similar to that of an adult trespasser. who is not a When the infant right is where he has to be and trespass the by technical, recovery is not barred trespass.” approved The rule majority opinion is, fact, based the Holmes decision in United Zinc & Chem ical Co. (1922), v. Britt Sup. 258 U. S. Ct. foreign jurisdictions L. Ed. and cases in based wholly upon that That supported decision. rule is not by any Corpus Indiana decision noted Juris Secun dum. attempted Some recent Indiana decisions have put in line with the Indiana Holmes decision above I rule, these decisions am in noted. With dissent.2 This Reith-Riley v. These Indiana are: Anderson Const. 2. eases App. 170, 172, City (2d) (1942), 112 Ind. E. Co. N. 184. (2d) (1937), 224. Evansville v. Blue 212 Ind. N. Plotzki (2d) Co. 92 N. E. 632. v. Standard Oil

193 inception, by in its seems to have been created a mind incapable giving youth, particularly period that juris period, proper which we know the non sui as its proper protection, in a civilized Christian community. note, majority opinion The fails to that charged complaint, directly in the that which is Neal, “caught, pinioned boy, who was little John C. time, years was, stepladder” at the three but' say, different or inhuman that “no old. me it is To higher duty respect an infant exists with [such] an adult case of trespasser than would exist long cannot state trespasser.” A civilized Christian nature, perversion the laws of tolerate such people. experience all civilized govern in rule, this case as I think should which decisions, as above, supported Indiana set forth is Penso, by Secundum, by Corpus as follows: Juris noted 116, (1890), 125 Ind. al. et McCormick Next Friend v. 211; Rep. 313, Wise 156, 21 Am. St. R. A. 25 E. 9 L. N. (1941), 109 Ind. Electric & Co. Indiana Gas v. Southern 975; 681, (1932), Drew Lett E. 2d App. 34 N. v. many 89, E. I have cited addi App. 182 N. 547.

Ind. my supporting it in dissent cases tional Indiana (1950), Oil Co. Plotzki v. Standard recent case of E. seq., 2d 92 N. et Ind. brevity. a matter of respectively made

citation holding Borinstein case so Probably Indiana the last App. 82 N. Hansbrough v. position in which untenable illustrate 266. To 2d Young majority opinion, I cite placed law is held court in which this Harvey (1861), 16 Ind. v. deep forty-two dug feet six well who one by him, lot owned an unenclosed in diameter inches trespassing fell uncovered, horse so leaving it killed, damages into it and was was liable to the owner of the horse for its value. This court then rea- thus, page soned the matter 315: probability strong “If the was so as make it lot, the of the owner of the aas member of guard community, the community that from the danger pit exposed to which members, its person loss duty. property, he is liable to an action for occurring through neglect perform his that any “We think man, ordinary reasonable understanding and extent of observation of the ways life, say would that probability of in- jury others, circumstances, under the from leav- ing not certainty from an question the well in was, in the condition it only strong, but that it amounted almost to probability strong as would —a arise unguarded cellar on a street in the city . . . .” This (correctly case think) I consistently has been sustained and Appellate followed this and the Court. Crump See Sisk v. (1887), 381; Ind. 14 N. E. Cleveland, etc., R. App. Co. v. Means 383, 104 785, 108 also, N. E. interesting E.N. 375. an See article, pp. instructive 26 Indiana L. J. 266 to criticizing majority opinion in the Plotzki case.

So we have the anomalous situation that if a tres- passing horse, cow, or other injured domestic animal is unguarded, or killed because of an structure, unfinished the owner of the structure is liable to the owner of the injury But, injury animal for the if sustained. year boy, death a little be of three old there can be no recovery. Apparently law, our as set forth in the boy majority opinion, the little a worthless considers having present liability. cow dollar But the horse or higher may value, collect and its owner rates much injury. damages for its destruction I reasoning. cannot follow this It law means greater rights respect has a property for the than safety for the life it, of little children. IAs view tragedy it is a to make our law thus. majority through opinion many pages labors attempt to establish that averred “that must be them, appellees, or one of a condition maintained semi-completed likely be

within the house that would dangerous I the averments of the to children.” think majority opinion complaint, on as set out against quite proposition, sufficient as demurrer. building boy little went into It averred that this flooring No and the roof erected. had the walls side joists, on placed or rafters constructed had been for the opening was left One floors. or second first door, whatever was and no barricade of a installation had been Apparently the work opening. placed in this stepladder was inside A abandoned. temporarily ground floor, and joists resting on on structure difficult It floor. is reaching joists the second on to a little child place imagine more hazardous a to play. to knowledge of charged with person is

Every adult rove and to little children propensities the natural making on a structure engages in person if a play, and community town, city he owes or populous in a lot that condition such keep the structure obligation to them to injured he allows if may be not children little in the structure. or play about compended situation, well is law, respecting Negligence Torts, the Law II, Restatement

in Vol. thus: pp. §839, should necessary the defendant that “It upon maintains he which the condition

know trespasses of chil- likely attract land is his trespasses be due shall children’s that the dren or to the attractiveness of the condition. It sufficient satisfy possessor conditions . . that . or knows likely should know that children are trespass upon part upon of the land which he maintains a likely danger- condition which is to be ous to them because of propensities their childish to intermeddle or Therefore, pos- otherwise. subject sessor is liability to children who after entering the dangerous land are attracted into intermeddling by him such a condition maintained although they ignorant were existence its they until after had land, entered the he if knows or should know that is one which likely children are trespass and that con- dition is one with likely to meddle.” App. etc. R. In Cleveland Co. v. Means 383, 405, supra, correctly by Hottel, the law is stated J., thus: premises “The of the the adult li- owner owes vigilance censee no presence ises sumed to will of active to discover his surroundings prem- his while his on by permission only, pre- because such adult is understanding go that he there with the premises they are, take the all the with may subject uses to which owner them while there, safety he and that will after his own look welfare, judg- and ment to premises and that he has discretion and words, In do so. other owner to an- does not know and has no reason ticipate place himself adult licensee will such assump- indulge peril. ain situation of To such an judg- years, tion when a licensee immature child against ment and discretion is would be involved lacking understanding our common and reason and every humanity justice. element Construc- company knowledge part tive that on the a railroad juris tracks, non sui are on its probably tracks, particular place, will at a its peril necessity, knowledge carries with it of or children, of probable peril helpless condition such and of care, vigilance which or hence, the character, only negative in was in instance first second instance may become affirmative company shall, require such case in that degree, least, some exercise the child for vigilance care and it must know the child which itself, and, not, by to exercise is tunable an must for commission, act omission ex- affirmative of

pose danger knows, such child to a which it or has- reason to believe is unknown to and not understood appreciated by ordinary such child. The of premises care tuhich the owner owes recognized child licensee thereon is and affirmed jurisdictions recog- even those refuse apply nize or the attractive doctrine, nuisance as Wheeling evidenced the case etc. R. R. Co. supra.” Harvey, (77 235, v. 66, Ohio St. 83 N. E. 503, Am. St. L. R. A. [N. S.] therein). the instructive (My annotation italics). City

In South Bend v. Turner (1901), 156 Ind. 60 N. E. question where a similar presented court, speaking by Hadley, J., to this we said: boy “We could assume that a six and a half years age knowledge was so advanced to be able he and know when he was in a where ought be, appreciate not to and to the evidences presence danger; Cleveland, etc. R. v. Co.

Klee, Jur., Negligence, In §205, p. 888, 38 Am. we find an supported excellent and well statement of the law on proposition, thus: recognized universally “It is a fact the courts may years that children be of such tender as to capacity be ap- without mental to understand and preciate perils may threaten their safe being, charged personal and as not be with con- tributory negligence having failed to avoid injury they perils, by from such reason of the fact that presumed conclusively incapable to be negligence.” contributory Many additional cited, cases asserting could legal principle, only same but that would extend this basically say, It dissent. correct if the struc- ^to being populous neighborhood ture erected in is a in city play, or town where little children live and and they might injured in such condition be if they play thereabout, therein or the builder of such knowledge a structure has constructive that children play or thereabout with will therein and this carries knowledge it, probable peril necessity, peril of of helpless condition. Under of such children and of conditions, vigilance part upon the and care these erecting affirma- the structure who are become of those they for the little chil- require that exercise tive and vigilance must know care which and dren exercising for themselves. incapable are the children omission may not, act of an affirmative The builder dangers. The commission, expose children to such general law agreeable with imposed liability is peculiarity supposed any negligence not because of attractive nuisance. the law course, the truth all the admits the demurrer Of Certainly pleaded in pleaded facts properly facts. ample every standpoint from the case bar plaintiff. this in the Since a cause of action state court to sustain the trial true, error it was Hansbrough Borinstein v. general thereto. demurrer 142, supra; Lewis v. 134, App. (1948), App. Ind. Cleveland, R. Co. etc. cited. and cases N. E. adversely Unprejudiced writers have criticized the attempting abstractly courts propensity of and arbi law, rule, par a matter of that certain trarily as may may and others such conditions ticular cause of action similar situations. 26 as state Oregon Review, 266, supra; 9 J., p. Law L. Indiana II, of the Law 192, 193; Restatement pp. Vol majority say, seq. To in the §339, et as pp. Torts opinion, stepladder question under the ex- isting pleaded dangerous conditions as was not for a play year boy arbitrary three old is an with part statement. The with unreasonable trouble ignores opinion directly it is that the situation as pleaded complaint, stepladder considers device; apart have should considered harmless including pleaded that there was no floor all the facts slight joists. only house, the A fall from there were might joists well have caused stepladder to year boy it did his mother. old as the three death of anyone acquainted children and with I think that naturally expect propensities that would there would injury danger an or death to unattended of serious stepladder boy a year would climb situ- who three old stepladder I we decide was. think should this ated as agreeable defined rules negligence with the well cases cases, little children governing and that when such determining definitely involved, cease we should are law, ignoring arbitrarily as a matter such cases complaint. as averred completely the facts building dwelling course, houses is Of any authority No pursuit civilized state. essential It in the nature this to truth. need be cited establish plaintiff this case truth. a self-evident bringing contrary, but only to does not assert By complaint, his truth. action, he that affirms this exercising only question or not in he whether raises pursuit take must builder reasonable this essential juris protect sui the little non children precaution injury. Our neighborhood serious from death or question in the frequently decided so courts have supererogation again a it seems affirmative being considered, I At the risk of the cases. so recite quote a as follows: from cases few Elliott, Byron K. C. J.:

From recognize rule that cited all “The last cases years be treated are not tender persons years. a reasonable mature This is any cruel rule, and humane and would be other re law; no such reproach to the law merits but branches, throughout proach, for, whether all its contract, line distin ... of tort or there runs judg guishing years few to have children of too enough discretion, old ment or possess doctrine sanctioned shock The from those faculties. This is and exercise those every experience taught by man’s and departure from it A would our law. justice humanity.” every one’s sense of Company Indianapolis, Chicago Railway Peru 183, 6 N. E. . Pitzer v Rep. 387, many 10 N. E. 58 Am. authorities there cited.

Again, Olds, from J.: recognized persons “It a well doctrine greater dealing required care in to use with years persons children who have reached the greater even when Friend v. McCormick supra. than with older of tender age discretion, and that required are injury care is to avoid them trespassers.” Penso, by Next (1890), 125 Ind. Montgomery, From J.: does, appellant “Conceding, that the demurrer knowing the foot probable consequences, maintained the log in a condition to at a and imperil persons, induced invited and the lives of ignorance danger, that in use it in and son, [age to appellant’s minor 9 these circumstances years] peril, comprehend his fell from to unable condition, log and because of was its unsafe stated, drowned, of action is and we think cause complaint rightly held be sufficient.”

that the was (1908), Indianapolis Harold 170 Water Co. v. Ind. there E. and cases cited. 83 N.

201 Court, speaking by Moran, Appellate From our J.: “However, open question in this is not an corporation State that ah is liable individual or injuries juris for leaving unguarded to a child non sui caused machinery exposed and or sur roundings, which are of such a nature and charac naturally tempt ter as to and allure children to play Chicago, with or use the otherwise same. App. 268, etc., (1906), R. v.Co. Fox 38 Ind. 70 N. 81; Thornton, Negligence E. §435; Lewis v. Cleveland, N. E. (1908), App. 337, etc. R. Co. Ind. City Indianapolis 23.” v. Williams App. 447, 454, 58 Ind. See, 108 N. E. 387. also cases cited in Plotzki v. Standard Co. (1950), Oil Dissent, Ind., 527, 532, pp. 533.. Hamilton, From J.: complaint “Here we have situation wherein the alleges appellants . . . that maintained a junkyard immediately adjacent public stacked ato street sidewalk, they and negligently piles where angle beams, of irons and which extended into the sidewalk; top that piles of said of iron and angle beams high which were four or five feet appellants negligently carelessly laid loose iron angle beams in they such manner that tot- tered and easily would fall pile from said when any force, pull tug applied them; many years children had been in the habit of climbing upon piles angle said of irons and beams all of which facts were appellants, known to precautions took no prevent practice. such “Neither do necessary we feel that it is in this opinion to enter án extended discussion of applicable

the law cases, ‘attractive nuisance’ except say alleged we hold that the facts ap sufficient to render the pellants liable appellee, if established [Citing evidence. Borinstein authorities].” v. Hansbrough (1948), App. 134, 142, 143, 82 N. (2d) 266. Negli- Torts, Law of the II,

In Restatement Vol. “Artificial title seq. gence §339, pp. under 920 et Children,” Trespassing Highly Dangerous to Conditions pleaded law, applicable the facts a statement made, case, thus: is instant in the liability for subject possessor land is “A thereon trespassing young bodily harm to artificial condition other or caused a structure land, if upon the he which maintains (a) is maintained where the condition possessor or upon knows one is should likely .to know that such children trespass, and (b) possessor condition is one of which he realizes

knows should know and which involving or should realize an unreason- as bodily able risk of death or serious harm to children, such (c) youth the children because of their do not discover the condition realize the risk in- intermeddling coming volved in in it or in dangerous within by it, the area made (d) utility possessor to the maintaining slight the condition compared to the young risk to children involved therein.” . opinion many pages takes to show that to tem- porarily single doorway barricade the to the house being constructed, year boy so that three old could not enter therein when away, the workmen were would expensive be such an pursuit restriction building dwelling houses, greatly as to curtail if not totally prohibit it. I shall not characterize this as begging question, impoverish but does ma- jority position greatly support. so that it left without temporary A put sufficient barricade could have been doorway insignificant over the at a cost too to mention— fifty temporary A door could probably cents. have doorway placed cost to been in the at about the same temporary temporary door the builder. A barricade completing impeded way the builder in could have no presented question con- structure, so that no utility balancing cerning children with the risk to II, of dangerous Restatement condition. Vol. of (d), clause Torts, Negligence §339, Comment Law 925, pp. 926. duty protect and all

Builders others owe a neighborhood they little children of the where are con- structing building improvement. or other A failure discharge reasonably negligence. this The boy from the little terror screams reached the ears street, in her home across the and true the mother of living things, particularly instinct of all the mother beings, her to the rescue of she rushed human of injuries caused her received terrified child—and fully met Every requirement the law was death. the demurrer complaint. It was error sustain Martin, in the opinion J. The excellent thereto. proper and is a (2d) 395 Court, 104 N. Appellate applicable to law exposition supported well complaint. in the facts contained denied. transfer should petition to Opinion Dissenting reasoning my concur with C. J. I Emmert, dissent, the matter I think in his but Brother Gilkison safety of future great importance for the is of such sepa- that a this state of the children and limb life dissenting that our justified. I believe opinion is rate (1950), 228 Ind. Oil Co. opinions in Plotzki v. Standard correct, 634, 636, 2d 518, 522, N. E. appeal. this law in made the have been should case was Plotzki that the My has been observation received with state, favor the bench and bar eventually it will be overruled.1 assigned sustaining The error here is the of the de fendant’s complaint. demurrer to the “Under present liberal pleading, rules of . . . the demurrer only directly alleged admits not specifically facts but also implied all facts that can be allegations by from other reasonable and fair intend ment. Domestic DeArmey (1913), Block Coal Co. v. 99; 179 Ind. 100 N. E. 102 N. E. Vandalia Coakley (1915), Coal Co. v. 184 Ind. 111 N. E. Bridge 426.” Rochester Co. v. McNeill 432, 439, Admittedly stepladder N. E. 662. in and dangerous of instrumentality itself is not a it but can easily placed become one when it is on an unstable insecure foundation. complaint alleged flooring

The the placed had not been joists joists on the floor and the ladder extended to the Liability Drowning 1. See “Landowner’s for Infant In Arti- Pond,” (1951). ficial 266 L. J. In this the article writer approved trespassers the statement of the law on infant con- Restatement, §339, tained in 2 Torts which is stated in full in the my dissent of Brother Gilkison. The writer then fol- stated as lows: against foregoing four-part “Measured the formula for deter- mining liability, say it seems erroneous to that the the Plotzki case failed to state a of cause action. There was no dispute that the defendant should have known that children were likely dangerous pond. to come to its The issue was whether the danger, child knew or should have known of the and it on this point recovery. that the court . . . denied “Entirely apart questionability authority the from of the holding, cogent the Plotzki it is unsound for other more reasons. place application In premise the first that all children appreciate perils necessarily preclude liability the of water would every drowning case of where the child had and volun- seen tarily played water, rightfully entered or near even if he were drowning occurred, contributory at the where the since negligence course, This, would be established matter as a of law. of important has not been the law of Indiana. A far more objection lies in the undeniable facts of life: if automobile acci- excluded, drowning single perhaps largest dents are cause ages of accidental death to children between the and four- one teen in the United States. The inference is that children do not appreciate dangers of water.” flooring the second floor which had also no thereon. quite young, eldest, three brothers were Anth- ony, being only years age, being years Clarence age, John, pinioned and upon step- who became attempted floor, ladder as he to climb to the second only years age. They was lived across the street played building and around while it con- was under being appel- struction and while was worked servants, neighborhood lees’ and other children from the had done the same. The demurrer admits appellees building attracting had notice that was these no effort was made to warn them away. Monday No workmen were about house the morning happened. when accident the 3- When year-old boy pinioned stepladder became he climbing was to the second floor his screams attracted great mother, child, his who with came she across the street into the house to rescue him. laboring While under the excitement of the occasion footing condition, and her awkward lost she her in her attempt rescue, to effect the and fell a floor astride joist, injury. which caused her fatal question

The sole for this court to decide is whether ap- under these circumstances we hold should pellees protect use were under due care to danger. three-year-old boy majority from If the appellees duty, this held then court had under this alleged breach thereof in the be the would barricading reasonable in failure use care the en- jury to a trance. This issue could have been submitted appellees for its as to whether or not determination respect. in had used due care attractive doctrine been a

The so-called nuisance has inception. Simply infant its because an misnomer from something dangerous occupant’s on an by is attracted land “Thus, does not make the instrument a nuisance. early decisions, which held that the landowner’s doing pleased upon land, interest as he his own greater value than the life and limbs of even a mor ally intruder, yielded change innocent pub have to a higher opinion places lic value on life and limb upon than prerogative the traditional dominional of a change processes landowner. Yet the which this value has forced the creation of a new standard judged, which the conduct of landowners is has been analogies. only one of fiction and false It is continual recently temerity that a few courts have had the to base upon such decisions the relative of the interests values year concerned. And even within the one of the last enlightened judges ablest and most of American has recovery [Holmes, J., denied in a case Zinc & United 280, 42 Chemical Britt Ct. Co. v. U. S. S. trespasser he L. Ed. of an infant because 615]2 fiction, did not come the exact of a whose within terms just only purpose protect person was to such as infant trespassers, appearing prece while to adhere to archaic Bohlen, protection.” dents which Studies denied them Torts, pp. Law 612. go on,” Of course “the business of life must but the stop business of life would not if hold this court would appellees keep were under the to use due care to getting partially these children from hurt in this con- expressly structed house. “If the landowner has so- land, requires licited children to come his due care for, anticipated prepared their visit be premises made If children are in safe for them. visiting land, presence should habit of similarly may anticipated, provision have and some 2. understanding Mr. Justice Holmes is not noted for his of of children. He had no children. He also reflects the harshness early great authority. common law which he was a Hudson, safety.” made The Turntable to be for their Courts, Rev. 848. in 36 Harv. L. the Federal Cases rough a few should have old nails A dozen boards entering boys house while prevented these from away. not precautions would the workmen were Such building anywhere, it cause nor would stop house materially their go bankrupt, lessen nor builders profits. society great apparent

It should be has a inter protecting safety in of our est children parents. “This has been criticized as an exhibition of humanitarianism, but it excessive seems rather public response justi to a sentiment which is natural grave socially impor risk to a numerous and fied slight comparatively class of citizens and the tant Bohlen, placed upon the landowner.” Studies burden Torts, p. Harper, the Law of 190. See also Law Appellate Torts, §§93, majority opinion by 94. appeal well considered and correct. Court Builders, 2d 395.3 Neal v. Home Inc. N. appeal been have transferred. This should Rehearing for

On Petition petition appellant points his out in J. As Bobbitt, rehearing, interlineation to amendment inadvertently out of sub- complaint was left amended part paragraph 8 of (a) numerical paragraph opinion. para- This appearing in the of the appear p. as interlineations graph with the appellant’s follows: brief failing “(a) to use reasonable care bar- In semi-completed ricading entrance ap Appellate was reviewed Court 3. The decision proved in 27 Y. U. Law Rev. 722. N. dwelling they knew, house as herein described when or in the exercise reasonable care should have known, that years children of immature and more particularly plaintiff’s decedent dwelling were semi-completed attracted house for purpose play sport, of and and were at dent place injury the time plaintiff’s and of dece- using semi-completed accustomed to dwelling sport play, house as a of and —said knew, and each them exer- defendants cise of care, known, reasonable could have of semi-completed the said house was in inher- fact ently dangerous to such children reason pitfalls many opportunities and them to climb for fall, and knowing injure and otherwise themselves without danger because their immature years.” fully We were aware of this amendment at all times during the consideration the case. The addi change tion of the italicized words above does not specific negligence charged. act p. opinion, On 167 of the 2d N. E. 280, 284, we said: negligence charged “The sole act of here is: The appellees

failure under the circumstances as set complaint out in the amended entrance to ‘barricade dwelling semi-completed house’ complaint.” (Italics added.) described in said The circumstances referred to above included all those finally recited in the amended before trial. rehearing Appellant petition admits his that a for dangerous stepladder instrumentality” “a is not an position “attractive nuisance” affirms taken argument, him in his brief in oral that neither a dwelling stairway house nor a semi-constructed “dangerous instrumentality.” “attractive nuisance” or a Nothing appears petition rehearing for change requires our opinion. us to rehearing denied. Petition Gilkison,

Emmert, dissent. J. and J. C. 111 N. Reported in E. 2d 111 N. Note. — rehearing. petition for 2d of Indiana v. State

Canler April 28,876. Filed 1953. Certiorari S. [No. denied U. Sup. Ct. October 1953.]

Case Details

Case Name: Neal, Admr. v. Home Builders, Inc.

Court Name: Indiana Supreme Court

Date Published: Mar 23, 1953

Citation: 111 N.E.2d 280

Docket Number: 29,027

Court Abbreviation: Ind.