The Washington times., 1934-05-10

SUPREME COURT DECISIONS

and Light VS.. Hurley, 49 Fed. I'd,
681, 684; Stuthman VS.. United
States, Ct Fed. I'd, 521, 523O
"In view of the fair import OF
the opening statement" the Court
said, it was error for the trial
court to refuse to take testimony
and to direct verdict for the de-
fendant. None of the decisions OF
this court warranted that course.
The case of United Zinc Company
VS.. Britt, 258 U. S., 268, which re-
spondent cites as controlling au-
thority, dealt with a situation
materially different. There chill
dren were fatally injured by going
into a pool of water, poisoned by
acids, which had accumulated in
the lower part of dismantled
chemical factory, about 100 or 120
feet distant from the travelled
way. The Court stressed the facts
that it was at least doubtful
whether the water could be seen
from any place where the children
lawfully were." Compare Rail
road Company VS.. Stout, II Wall.
657. or Union Pacific Railway VS.
Mcdonald. 152 U. S., 1852; Cooke
VS. Midland Great Western Rail-
way of Ireland, 1909, A. C. 229).
In the New York, New Haven
and Hartford VS. Fruchter case,
$3.50 U. S., 14D boy, climbing to
the topmost girder of a municipal
bridge and thence up a latticed
tower, touched a live wire and was
injured and the Court was unable
to find any sufficient evidence OF
invitation or of license.
Concluding, the Court said:
THE question is one of negll-
gence-whether the particular cir
cumstances gave rise to a duty
which had not been performed
Discussing general principles, the
Court observed in the Britt case
that infants had no greater right
to go upon other peoples lands
than adults and that the mere
fact that they were infants i'm
posed no duty upon landowners
to expect them to prepare for their
safety. On the hand it was said
that while temptation is not in
vitation, it may be held that
knowingly to establish and ex
pose, unfenced, to children of an
age when they follow a bait as
mechanically as fish, something
that is certain to attract them, has
the legal effect of an invitation
to them although not to an adult.
"The Court said that the prin
ciple if accepted should be very
cautiously applied. We think that
the present case falls within that
appropriate application. Were
the case merely one of an acceS
sible wharf, it could not be saio
that the District would be subject
to liability from the fact, with
out more, that a child Strayec
there and fell from the wharf
into the water. The duty must
find it's source in special circum
stances in which, by reason Of the
inducement and of the fact thai
visits of children to the place
would naturally be anticipated
; and because of the character o.
, the danger to which they woulc
unwittingly be exposed, reasonable
, prudence would require that pre-
: cautions be taken for their pro
= lection. Here, on the face of tn
opening statement, the location o.
l.. the wharf, unfenced, close to tn
: street with the barrier partl,
r down, taken with the use of tn
wharf for unloading sand, mad
! it a likely place for children tt
play. Sandpiles close at hant
would constitute "a bait" the.
: would inevitably follow. Accord
: ing to the statement, they did TO
5 low it and they used the Whar
5 as a playground at their pleasure
: AS the authorities of the Distrlc
:; had reason to anticipate that use
. there was duty to take reasonabl
precautions either to prevent 1t Q
to keep the wharf in such prope
!; state of repair that children Woul
not be exposed to the danger o
). falling through holes. Judgmen
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