Perth Amboy evening news., 1922-12-14

Between these lines one can read
that the justice fully understood
that to the active boy" the occa-
sional presence of the policeman and
the very sign itself made the game
of climbing the bridge much more
fascinating! He proceeds:
In June. 1916, the plaintiff, Da-
vid Fruchter, eight years old. by
using the trellis work climbed from
the street to the top of the bridge
in quest of a birds nest. He then
saw a bird on the wire above it and
to catch it climbed UP the strut
and reached out; third few away
his hand touched the wire and Sc
we're injuries resulted"
One can read through this para
graph all the grave justices appre-
citation of the romance Of active
boyhood. William Shakespeare has
devoted immortal lines to the boyish
sport Of birdnesting. Why should
not the supreme court of the United
States take it into consideration?
1t is clear that when the boy saw
the bird on the wire, he saw a bit
of life which he recognized. He
knew that the little winged creature
was a living, virile thing. There was
a sign, to be sure saying that the
wire also was alive, but the con-
trast was too sharp for the boy TO
be convinced. That the dull. lead
J en- strand of wire should be more
alive. so far as harmful properties
are concerned, than the bird that
darted through the air, was incon-
ceivable to the eight-year old boy.
The opinion continues:
"At the time of the accident the
boy was attending school," The
justice mentions this to indicate
that there was a fair assumption
that the boy could read the warn
ing sign.
He further states" says the opin-
ion, that before climbing upon the
bridge he looked to see whether a
policeman was present and admit
ted that if one had been there he
would not have gone up.
The court below accepted the
theory that the jury could have
found the structure was well known
to be both dangerous and attractive
to the children Inc that failure to
supply proper guards, human or
mechanical, constituted negligence
within the doctrine of Railroad
Company versus Stout, IT Wallace
657, and Union Pacific Railway
COMPANY versus Mcdonald, 1852 U. S.
262."
The justice gives the impression
of making every effort to exonerate
the child from responsibility for the
accident which befell him. He pro-
ceeds:
Precedents Cited
in United Zinc and Chemical
Company versus Britt we pointed
out the theory on which liability
may exist for injuries suffered ly
an infant although the circum-
stances would give no cause of ac-
ton to an adult. Infants have no
greater right to go upon other peoe
pies land than adults and the
mere fact that they are infants i'm
poses no duty upon landowners 10
expect them to prepare for their
safety While it is very plain
that temptation is not invitation, it
may be held that knowingly to es-
tablish and expose unfenced, to
children Of an age when they fol-
low a bait as mechanically as a fish
something that is certain to attract
them. has the legal effect of an in
vitation to them although not to an
adult"
Try as he will to give the child
the best of it, the justice must re-
turn TO the common sense prdctlce
of every day where men and women
must move among practical affairs
and not in the imaginative world
of childish entertainments. After
all, the justice concludes, railroads
must be run to carry the food
which men and women earn for
their children and so it is a part
OF the hazards of life that active
boys who a climb to the highest
struts sometimes may get hurt. The
Justice concludes:
There can be 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 invit-
ed or licensed them to.
Considering the peculiar circum-
stances of the present case, it is
clear that if the plaintiff had been
an adult he could not recover; and
we are unable to find any sufficient
!, evidence from which the jury could
|, have properly concluded that the
railroad company, either directly on
by Implication, invited or licensed
: him to climb upon the strut to q
!: poin. from which he could touch the
> bare wire 80 feet above the street