delivered the opinion of the court.
Thе town of Big Stone Gap maintains and operates within its corporate limits, for the benefit of its citizens, a public recreational area known as “Bullitt Park.” In the park are facilities for sports, including baseball, football, and track events. The town also maintains in the park a playground fitted with swings, seesaws, and other apрliances for the amusement of small children.
On July 14, 1942, the operator of the machine finished his day’s work about four p. m. He pulled the grader from the running track, where he had been working, and parked it near the playground area designed for the usе of small children. Before leaving the machine he lowered the blade to the ground.
Within an hour after the operator had left the scraper, James Johnsоn, the plaintiff below, a barefoot boy eight years of age, and Ralph Smith, his companion, eleven years of age, who had been playing near by, climbed on the machine and began to play there. By their joint efforts they were successful in manipulating first one and then the other of the two large wheels which raised the blade from the ground. While James held the blade in position by means of the foot brake, Ralph climbed on the blade for the purpose of “riding it to • the ground” upon the release of the brake by his companion. In releasing the brake, James’ foot was caught in the cogwheels and was injured. Fortunately the injury was slight and his recovery has been good.
The injured boy, through his grandfather and next friend, filed a notice of motion for judgment against the town, seeking to recover damages for his injuries. In substance, it wаs alleged that the town was guilty of “gross and (sic) wanton negligence” in leaving near the playground this machine which was “unsecured, unfastened, unguarded, and unattended,” and which, by reason of its nature and construction, was “likely to attract children, excite their curios
The allegation of a high degree of negligence was necessary by reason of Code, sec. 3032a (Aсts of Assembly, 1940, ch. 153, p. 247), which limits the civil liability of cities and towns in the maintenance or operation of such recreational facilities to cases of “gross or wаnton negligence.”
A demurrer to the notice of motion for judgment was overruled and a trial on the merits before a jury resulted in a verdict and judgment of $370 against the town. To review this judgment the present writ of error has been allowed.'
The main question before us is whether the act of the town’s employee in leaving this machine in the public park near the children’s playground measures up to the standard of “gross or wanton negligence” required by the statute in order to sustain the verdict and judgment. The town contends that such act, if negligent at all, does not amount to “gross or wanton negligence” within the meaning and intent of the statute. On behalf of the injured boy it is contended that whether such act meets the requirement of the statute is a jury question.
The terms “gross negligence” and “wanton negligence” have frequently been considered and аpplied by us. In Thomas v. Snow,
In Wright v. Osborne,
“Wanton negligence” is of even a higher degree than “gross negligence.” Thomas v. Snow, supra (
As we have frequently said, whether thé conduct of a person under given circumstances amounts to “gross or wanton negligence” is ordinarily a jury question. For example, see Watson v. Coles,
The suit of the plaintiff below is grounded on what is commonly referred to as the “attractive nuisance” doctrine. Under this doctrine one who leaves accessible to small children an instrument, machine, or appliance which he knows, or ought to know, is attractive to children and yet is dangerous to them, is guilty of negligenсe. The two necessary elements of the tort are that the appliance is known to be attractive to children and known to be dangerous to them.
It is not diffiсult to envision a situation where one or both of these elements may be magnified to such a degree that leaving a particular machine or appliаnce accessible to
In the first place, there is no proof thаt the town officials or employees knew or ought to have known that the road scraper was attractive to children. While it had been left in the park ovеr a long period, only on two previous occasions, so far as the record shows, had children been on it. Mrs. Barnett, who lived near the park, testified that abоut a week before the accident she saw some children playing on the machine. Ralph Smith, who was with the plaintiff below at the time the latter was hurt, testified that hе had previously played on the scraper. But there is no showing that the town’s employees knew of either of these incidents.
In the next place, there is no proof that the machine was one which was dangerous to children, nor can we say, .as a matter of law, that it was inherently so. The danger to be anticipated from playing on an idle road scraper is quite different from that to be expected from handling a dynamite cap, such as was involved in Daugherty v. Hippchen,
Whether the act of the town employee in leaving this machine near the children’s playground, under the circumstances stated, amounted to ordinary or simple negligence we need not decide. It is certain, we think, that it did not constitute “gross or wanton negligence” within the meaning of the statute.
For this reason the judgment сomplained of is reversed, the verdict of the jury is set aside and final judgment here entered for the town of Big Stone Gap, the defendant below.
Reversed and final judgment.
Notes
The enactment of this statute followed shortly after the decision in Hoggard v. Richmond,