Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-04-11

say child can be trespasser. It was
q trespasser, in legal sense; that Is, 1t
was on this property without right. The
city was not bound to watch Ii. 1t could
be liable to 1t only for willful or wan
ton injury.
But 1t is commended that, while this
doctrine that no duty lies upon the
owner Of property to keep 1t in safe
condition as to trespassers applies to
persons who have attained years OF dis
erection. the case Is wholly different as
to children of tender years: that as to
them the owner cannot use the prop
erty as he chooses, but must so use 1t
as not to injure them. Ought farmer
be liable for failing to put picket
fence around his pond necessary for. his
cattle? If he does not. some little boy
Will climb the fence into the farmers
1ield drown in the pond, and sue the
farmer. on the same principle. The
dam that contains water to turn the
mill wheel, having a path around it
shaded with willows, Is very alluring
to the child and the man. Must the
miller inclose 1t? The canal, with it's
towpath and frogs, is very attractive
to the little boy or girl, and dangerous,
too. If n child drown in 1t, is the COM
pany liable? How many more instances
OF things useful in lawful business, and
withal very attractive to children. and
very dangerous. might be put? And the
rule commended for says that. IL the
thing causing the injury be attractive
or seductive. the liability attends it.
This rule would charge the duty Of
tne protection OF children upon every
member OF the community except their
parents A very onerous duty!
Bnt most important matter Is. what
Is the negligence claimed to sustain this
action! 1t is that there was q gate Of
entry into the Enclosure containing the
reservoir, which was sometimes open
ana that there was an opening under
the picket fence several feet deep to
allow water coming into the reservoir
Enclosure from the hill above, from rain,
10 pass out so as to keep 1t from en-
tering the reservoir and polluting its
water. The place was uninviting and
dangerous. and there was no ground for
the city to anticipate that parents
would allow their children there, on
very dangerous ground, or that one
would crawl under the fence, through
this single necessary opening. The city
used oil due precaution.
An owner is not required to provide
against remote and improbable injuries
TO trcspassing children. One using his
| property I'm a lawful way is not under
obligation to save others from inevita-
bic accident. "He performs his duty
| when he uses reasonable care and pre-
caution" Even if the city owed duty
to the child, it was only OF ordinary
care.
The fact shows that the city took
all reasonable precautions, and this is
| an unfortunate. inevitable accident, for
which it is not liable.
| Now. would n farmer or halloween be
liable because he left drain under his
| fence. and n child happened to crawl
through 1t and fall into the pond? Ger
tainly not 1t is an unexpected, inev-
liable accident. Neither is Wheeling
| liable.
l oppose imposing upon the innocent
public heavy damages for the accidents
and misfortunes which always have
and always will attend human exist
ence. The safety OF the many Is to
be preferred to even the suffering and
misfortunes of individuals Judgment
affirmed.