Great Falls tribune. [volume] (Great Falls, Mont.) 1921-current, 1922-12-14
By FREDERICK
]. HASkIN

N@AAN
from the strut.
with considerable difficulty and
some danger, active boys can climb to
the highest parts of the bridge. They
did often climb upon it; some reached
the struts"
One can imagine the grave justice
writing this opinion and thinking back
half a century to his own boyhood,
when to be an ''active boy"-perhaps
the most ''active boy" in the neighbour
hood-was his ambition. One can read
much between the lines Of the opinion.
The justice Y They did often
climb upon it; some reached the
struts" One can imagine the justice
saying to himself of those particularly
active boys who were strong and fear
less enough to reach the struts, Good
kids" The official opinion continues:
They We're frequently chased away
by a policeman and the railroad guard,
and seem generally to have understood
that to play there was forbidden, when
an officer came in sight they kept off.
At each corner Of the bridge there was
a notice board displaying the words:
Live Wires. Danger. Keep Off,"
Between these lines one can read
that the justice fully understood that
to the ''active boy" the occasional
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, David
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; the bird
flew away; his hand touched the wire
and severe injuries resulted"
One can read through this paragraph
all the grave Justices appreciation of
the romance of active boyhood. Will
liam Shakespeare has devoted immortal
lines to the boyish sport of bird-nest-
ing. Why should not the supreme court
of the United States take it into con-
slderation? 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
Il sign, to be sure, saying that the wire
also was alive, but the contrast was too
sharp for the boy to be convinced.
That the dull, leaden strand of wire
should be more alive, SO far as harm
full properties are concerned, than the
bird that darted through the air. was
inconceivable 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
q fair assumption that the boy could
read the warning sign.
He further states.' SAYS the opin-
ion, that before climbing upon the
bridge he looked to see whether d
policeman was present and admitted
that if one had been there he would
not haTe 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 chill
dren and that failure to supply proper
guards. human or mechanical, cousti-
tuted negligence within the doctrine of
railroad Company versus Stout, II
Wallace 6o7, and Union Pacific Rail
way Company versus Mcdonald, 1872
U. $. 262."
The justice gives the impression of
making every effort to exonerate the
child from responsibility for the acci-
dent which befelI him. He proceeds:
Presidents Cited
In United Zine & Chemical company
versus Britt we pointed out the theory
on which liability may exist for injuries
suffered by an infant, although the
circumstances would give no cause of
greater right to go upon other peoples
land fhgn admits an1 thu n,nra 81 pr
that they are infants imposes no duty
upon landowners to expect them to
prepare for their safety. While, it
IL very plain that temptation is not
invitation, II may be held that know
ingly TO establish and expose, unfenced,
to children of an age when they follow
a bait as mechanically as n fish some
thing that IS certain to attract them,
has the legal effect of an invitation to
them. although not to an adult"
Try as he will to give the child the
best of it. the justice must return to
the c~ommon-sense practice of every
day where men and women must move
among practical affairs and not in the
imaginative world Of childish enter
tainments. After all. the justice con
cludeS. railroads must be run to carry
the o which men and women earn
for their children. and SO il is a part
of the hazards of life that active boys
who ran climb to the highest struts
sometimes may get hurt. The justice
concludes:
There can be no general duty on the
part of the 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.
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 I'M
able to find any sufficient evidence from
which the jury could have properly con-
cludcd that the railroad company, either
directly or by II! plication. invited or
licensed him 10 climb upon the strut
to q point from which be could touch
the bare wire 80 feet above the street.
The motion for an instructed verdict
should have been granted. The jude-
ment of the court below is reversed and
the cause remanded to the district court
for further proceedings in conformity
with this opinion"
All of which means that little Dayy
loses his case and cannot collect dam
ages from the railroad which
owned the live wire. but the opinion
also that even the grave and
solemn supreme court of the United
States takes into consideration all the
circumstances of boys escapades and
fAliqWS rho line 0f ram,ndn 5apuo Al.