36 A.L.R. 28
U.S.
1922
Me. Justice Holmes

delivered the opinion of the court.

This is a suit brought by the respondents against the petitioner to recover for the death of two children, sons of the respondents. The facts that for the purposes of decision we shall assume to have been proved are these. The petitioner owned a tract of about twenty acres in the outskirts of the town of Iola, Kansas. Formerly it had there a plant, for the making of sulphuric acid and zinc spelter! In 1910 it tore the building down but left a basement and cellar, in which in July, 1916, water was accumulated, clear in appearance but in fact dangerously poisoned by sulphuric acid and zinc sulphate that had come in one way or another from the petitioner’s works, as the petitioner knew. The respondents had been travel-ling and encamped at some distance from this place. A travelled way passed within 120 or 100 feet of it. On July '27, 1916, the children, who were eight and eleven years old, came upon the petitioner’s land, went into the .water, were poisoned and died. The petitioner saved the question whether it could be held liable. At the trial the Judge instructed the jury that if the water looked clear but in fact was poisonous and thus the children were allured to it the petitioner was liable. The respondents got a verdict, and judgment, which was affirmed by the Circuit Court, of Appeals. 264 Fed. 785.

Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, and kindred cases were relied upon as. leading to the result, and perhaps there is language in that and in Railroad Co. v. Stout, 17 Wall. 657, that might seem to justify it; but the doctrine' needs very caréful statement not to make an unjust and impracticable requirement. If the children had been adults they would have had no case. They would have been trespassers and the owner of the land would have owed no duty to remove even hidden danger; it would have been, entitled to assume that they would obey the law and not trespass. The liability for spring guns and mantraps arises from the fact that the defendant has not rested on .that assumption, but on the contrary has expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it. Chenery v. Fitchburg R. R. Co., 160 Mass. 211, 213. Infants.have no greater right to go upon other peoples’ land than, adults, and the mere' fact that they are infants’ imposes no duty upon landowners to expect them and to prepare for their safety. On the other hand the duty of one- who invites another upon his land not to lead him into a trap is well settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow á bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult. But the principle if accepted must be very cautiously applied.

In Railroad Co. v. Stout, 17 Wall. 657, the well-known case of a boy injured on a turntable, it appeared that children had played there before to the knowledge of employees of the railroad, and in view of that fact and the situation of the turntable near a road without visible separation, -it seems to have been assumed without much discussion that the railroad owed a duty to the boy. Perhaps this was as strong a case as would be likely to occur of maintaining a known temptation, where temptation takes the place of invitation. A license was implied and liability for a danger not manifest to a child was declared in the very similar case of Cooke v. Midland Great Western Ry. of Ireland [1909], A. C. 229.

Ip the case at bar it is at least doubtfulwhether the water could be seen from any. place where the children lawfully. were and there is no evidence that it was what led them to enter the land. But that is necessary to start the supposed duty. There can bé no general duty on the part of a landowner to keep his land safe for children, or even free from hidden dangers, if he has not directly or by implication invited or licensed them to come there. The difficulties in the way of implying a license are adverted to in Chenery v. Fitchbury R. R. Co., 160 Mass. 211, 212, but need not be considered here. It does not appear that children were in the habit of going to the place; so that foundation also fails.

Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, is less in point. There a boy was burned by falling into burning coal slack close by the side of a path on which he was running homeward from other boys who had frightened him. It hardly appears that he was a trespasser and the path suggests an invitation; at all events boys habit-ually resorted to. the place where he was. Also the defendant was under a statutory duty to fence the place sufficiently to keep out cattle. The decision is very far from establishing that the petitioner is liable for poisoned water not bordering a road, not shown to have been the inducement that, led the children to trespass, if in any event the law would deem, it sufficient to excuse their going there, and not shown to have been the indirect inducement because known to the children to be frequented by others.. ¡ It is suggested that the roads across-the place were invitations. A road is not an invitation to leave it elsewhere than at its end. ' •

Judgment reversed.

Mr. Justice Clarke, with whom concurred The Chief Justice and Mr. Justice Day, dissenting.

The courts- of our country have sharply divided as to the principles 'of law applicable to “ attractive nuisance ” cases, of which this one is typical.

At the head of one group, from 1873 until the decision of today, has stood the Supreme Court of the United States, applying what has been designated as the “ Humane ” doctrine. Quite distinctly the-mourts of Massachusetts have stood at the head of the other group, applying what has béen designated as a “ Hard Doctrine ”— the “ Draconian Doctrine.” Thompson on Negligence, vol. I, §§ 1027 to 1054 inclusive, especially §§ 1027, 1047 and 1048; Cooley on Torts, 3d ed., pp. 1269, et seq.

In 1873, in Railroad Co. v. Stout, 17 Wall. 657, this court, in a turntable case, in a unanimous decision., strongly approved the doctrine that he who places upon his land, where children of tender years are likely to go, acohstruction or agency, in its nature attractive, and therefore a temptation, to such children, is culpably negligent if he does not take reasonable'care, to keep them away, or to see that such dangerous thing is so guarded that they will not be injured by it when following the instincts and impulses of childhood, of which all mankind has notice. The court also held that where the facts are such that different minds may honestly draw different conclusions from them, the case should go to the jury.

Twenty years later the principle of this Stout Case was elaborately reexamined and unreservedly affirmed, again-in a unanimous decision in Union Pacific Ry. Co. v. McDonald, 152 U. S. 262. In each of these cases the contention that a child of tender years must be held to tbe same understanding of the law with respect to-property rights as an adult and that therefore, under the circumstances of each, the child injured was a trespasser, w^s considered and emphatically rejected. The attractiveness of the unguarded construction or agency — the temptation of it to children — is an. invitation to enter the premises that purges their technical trespass. These have been regarded as leading cases on the subject for now almost fifty years and have been widely followed by state and federal courts,—by the latter so recently as Heller v. New York, N. H. & H. R. R. Co., 265 Fed. 192, and American Ry. Express Co. v. Crabtree, 271 Fed. 287.

The dimensions of the pool of poisoned' water were about 20x45 feet. It was 2% to 3 feet deep in part and in part 10 or more feet deep. A photograph in the record gives it the appearance of an attractive swimming pool,, with brick sides and the water coming nearly to the top of the wall. The water is described by the witnesses as appearing to be clear and pure, and, on the hot summer day on. which the children perished, attractively cool.

This pool is indefinitely located within a tract of land about' 1,000 feet wide by 1,200 feet long, about which-there had not been any fence whatever for many years, and there was no sign or warning of any kind indicating the dangerous character of the water in the pool. There were several paths across the lot, a highway ran within 100 to 120 feet of the pool, and a railway track vas not far away. The land was. immediately adjacent to a city of about 10,000 inhabitants, with dwelling houses not far distant from it. The testimony shows that not only the two boys who perished had been attracted to the pool at the time but that there were two or three' other children with them, whose cries attracted men who were passing nearby, who, by getting into the water, succeeded in recovering the dead body of one child and in rescuing the other in such condition that, after, lingering, for a day or two, he died. The evidence shows .that the 'water in the pool was highly impregnated with sulphuric acid and zinc sulphate, which certainly caused the death of the children, and that the men who rescued the boys suffered seriously, one of them for as much as two weeks, from the effects-of the poisoned water.

The case was given to the jury in a clear and comprehensive charge, and the judgment of the District Court. upon the verdict vas affirmed by. the Circuit Court of- Appeals. The court charged the jury that if the water in the pool was not poisonous and if the boys were simply drowned there could be no recovery, but that if it was found, that the defendant knew or in the exercise of ordinary care should have known, that the water was impregnated with poison, that children were likely to go to its vicinity, that it was in appearance clear and "pure and attractive to young children as a place for .bathing, and that the death of the children was caused by its alluring appearance and by its poisonous character, and because no protection or warning was given against it, the case came within the principle of the “ attractive nuisance ” or “ turntable ” cases and recovery would be allowed.

. This was as favorable a view of the federal law, as it has been until today, as the petitioner deserved. The Supreme Court of Illinois, on the authority of the Stout Case, held a city liable for the death of a child drowned in a similar pool of water not poisoned. City of Pekin v. McMahon, 154 Ill. 141.

The facts, as stated, make it very- clear that in the view most unfavorable to the plaintiffs below there might be a difference of opinion between candid men as to, whether the pool was so located that the owners of the,land should have anticipated that children might frequent its vicinity, whether its appearance and character rendered it attractive to childish instincts so as to make it a temptation to children of tender years, and whether, therefore, it was culpable negligence to maintain it in that location, unprotected and without warning as to its poisonous condition. This being true, the case would seem to be one clearly for a jury, under the ruling in the Stout Case, supra.

Believing as I do that the doctrine of the Stout and McDonald Cases, giving weight to, and making allowance, as they do, for, the instincts and habitual conduct of children of. tender years, is a sound doctrine, calculated to make men more reasonably considerate of the safety of the children' of their neighbors, than will the harsh rule which makes trespassers of little children which the court is now substituting for it, I cannot share in setting aside thé verdict of the jury in this case, approved by the judgments of two courts, upon what is plainly a disputed question of fact and in thereby overruling two decisions which have been accepted as leading authorities for half a century, and Í therefore dissent from the judgment and opinion of the court.