If landowners are not bound to warn an adult trespasser of hidden dangers,—dangers which he by ordinary care cannot discover and, therefore, cannot avoid,—on what ground can it be claimed that they must warn an infant of open and visible dangers which he is unable to appreciate? No legal distinction is perceived between the duties of the owners in one case and the other. The situation of the adult in front of secret dangers which by no degree of care he can discover, and that of the infant incapable of comprehending danger, is in a legal aspect exactly the same. There is no apparent reason for holding that any greater or other duty rests upon the owners in one case than in the other.
There is a wide difference—a broad gulf—both in reason and in law, between causing and preventing an injury; between doing by negligence or otherwise a wrong to one’s neighbor, and preventing him from injuring himself; between protecting him against injury by another and guarding him from injury that may accrue to him from the condition of the premises which he has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law. Is a spectator liable if he sees an intelligent man or an unintelligent infant running into danger and does not warn or forcibly restrain him? What difference does it make whether the danger is on another’s land, or upon his own, in case the man or infant is not there by his express or implied invitation? If A sees an eight-year-old boy beginning to climb into his garden over a wall stuck with spikes and does not warn him or drive him off, is he liable in damages if the boy meets with injury from the spikes? Degg v. Railway, 1 H. & N. 773, 777. I see my neighbor’s two-year-old babe in dangerous proximity to the machinery of his windmill in his yard, and easily might, but do not, rescue him. I am not liable in damages to the child for his injuries, nor, if the child is killed, punishable for manslaughter by the common law or under the statute (P. S., c. 278, s. 8), because the child and I are strangers, and I am under no legal duty to protect him. Now suppose I see the same child trespassing in my own yard and meddling in like manner with the dangerous machinery of my own windmill. What additional obligation is cast upon me by reason of the child’s trespass? The mere fact that the child is unable to take care of himself does not impose on me the legal duty of protecting him in the one case more than in the other. Upon what principle of law can an infant by coming unlawfully upon my premises impose upon me the legal duty of a guardian? None has been suggested, and we know of none.
An infant, no matter of how tender years, is liable in law for his trespasses. 1 Ch. Pl. 86; 2 Kent, 241; Cool. Torts, 103; Poll. Torts, 46; 2 Add. Torts, 1126, 1153; 10 Am. & Eng. Enc. Law, 668, et seq.; Humphrey v. Douglass, 10 Vt. 71; School District v. Bragdon, 23 N. H. 507; Eaton v. Hill, 50 N. H. 235; Bullock v. Babcock, 3 Wend. 391; Williams v. Hays, 143 N. Y. 442, 446–451; Conklin v. Thompson, 29 Barb. 218; Neal v. Gillett, 23 Conn. 437; Huchting v. Engel, 17 Wis. 237. If, then, the defendants’ machinery was injured by the plaintiff’s act in putting his hand in the gearing, he is liable to them for the damages in an action of trespass and to nominal damages for the wrongful entry. It would be no answer to such an action that the defendants might by force have prevented the trespass. It is impossible to hold that while the plaintiff is liable to the defendants in trespass, they are liable to him in case for neglecting to prevent the act which caused the injury both to him and them. Cases of enticement, allurement, or invitation of infants to their injury, or setting traps for them, and cases relating to the sufficiency of public ways, or to the exposure upon them of machinery attractive and dangerous to children have no application here.
Danger from machinery in motion in the ordinary course of business cannot be distinguished from that arising from a well, pit, open scuttle, or other stationary object. The movement of the works is a part of the regular and normal condition of the premises. Sullivan v. Railroad, 156 Mass. 378; Holbrook v. Aldrich, 168 Mass. 15; Rodgers v. Lees, 140 Pa. St. 475. The law no more compels the owners to shut down their gates and stop their business for the protection of a trespasser than it requires them to maintain a railing about an open scuttle or to fence in their machinery for the same purpose. Benson v. Company, 77 Md. 535; Mergenthaler v. Kirby, 79 Md. 182. There was no evidence tending to show that the defendants neglected to perform any legal duty to the plaintiff. McGuiness v. Butler, 159 Mass. 233, 236, 238; Grindley v. McKechnie, 163 Mass. 494; Holbrook v. Aldrich, 168 Mass. 15, 17, and cases cited.
Verdict set aside: judgment for the defendants.[[135]]
Parsons, J., did not sit: the others concurred.
KEFFE v. MILWAUKEE AND ST. PAUL RAILWAY CO.
Supreme Court, Minnesota, January 11, 1875.
Reported in 21 Minnesota Reports, 207.
The plaintiff, an infant, brought this action in the Court of Common Pleas for Ramsey County to recover damages for injuries sustained while playing upon a turn-table of defendant. The circumstances under which plaintiff was injured are thus stated in the complaint: “That in connection with said railroad” [of defendant] “defendant, before and up to the month of October, 1867, used and operated a certain turn-table, located on the lands of said defendant in said town of Northfield, which said turn-table was so constructed and arranged as to be easily turned around and made to revolve in a horizontal direction.”
After minutely describing the turn-table, the complaint proceeds: “That said turn-table was situated in a public place, near to a passenger depot of the defendant, and within 120 feet from the residence and home of plaintiff. That said turn-table was unfastened and in no way protected, fenced, guarded, or enclosed, to prevent it from being turned around at the pleasure of small children, although the same could at all times be readily locked and securely fastened.
“That said turn-table ... was in the possession and under the control of defendant, and not necessary in operating said railroad and it was the duty of said defendant to keep said turn-table fastened or in some way protected, so that children could not readily have access thereto and revolve the same. That the same was not so protected or fastened, and that said turn-table, when left unfastened, was very attractive to young children, and that while the same was being moved by children, and at all times when left unfastened, it was dangerous to persons upon or near it.