“That defendant had notice of all the aforesaid facts before and at the time the injury herein named occurred to the plaintiff.
“That plaintiff, on September 11, 1867, was a child of tender years, without judgment or discretion, he being at that date seven years old, and that in consequence of the carelessness, negligence, and improper conduct of said defendant, in not locking, enclosing, or otherwise fastening said turn-table, and by the negligence, carelessness, and improper conduct of said defendant, its agents, and servants, in allowing said turn-table to be and remain unfastened, insecure, and improperly put in motion, it was, at the date last aforesaid, revolved by other children, over whom the parents and guardians of plaintiff had no control, and without their knowledge, and, while being so revolved, the plaintiff, being on said turn-table, had his right leg caught near the knee, between the surface of said turn-table and said abutment or wall, and between the iron rail on said turn-table and the iron rail on said abutment or wall, and said leg was thereby so bruised, broken, mangled, and fractured, as to render amputation necessary.”
The complaint further alleges that the injury was caused by defendant’s negligence, and without any fault or negligence on the part of the plaintiff, or his parents or guardians, etc.
The defendant having answered the complaint, and the action having been called for trial, the defendant moved for judgment on the pleadings. The motion was granted by Hall, J., and judgment entered accordingly, from which plaintiff appealed.
Bigelow, Flandrau & Clark, for respondent, relied on the opinion of Hall, J., and the cases therein cited.[[136]]
Young, J. In the elaborate opinion of the Court below, which formed the basis of the argument for the defendant in this Court, the case is treated as if the plaintiff was a mere trespasser, whose tender years and childish instincts were no excuse for the commission of the trespass, and who had no more right than any other trespasser to require the defendant to exercise care to protect him from receiving injury while upon its turn-table. But we are of opinion that, upon the facts stated in the complaint, the plaintiff occupied a very different position from that of a mere voluntary trespasser upon the defendant’s property, and it is therefore unnecessary to consider whether the proposition advanced by the defendant’s counsel, viz., that a landowner owes no duty of care to trespassers, is not too broad a statement of a rule which is true in many instances.
To treat the plaintiff as a voluntary trespasser is to ignore the averments of the complaint, that the turn-table, which was situate in a public (by which we understand an open, frequented) place, was, when left unfastened, very attractive, and, when put in motion by them, was dangerous to young children, by whom it could be easily put in motion, and many of whom were in the habit of going upon it to play. The turn-table, being thus attractive, presented to the natural instincts of young children a strong temptation; and such children, following, as they must be expected to follow, those natural instincts, were thus allured into a danger whose nature and extent they, being without judgment or discretion, could neither apprehend nor appreciate, and against which they could not protect themselves. The difference between the plaintiff’s position and that of a voluntary trespasser, capable of using care, consists in this, that the plaintiff was induced to come upon the defendant’s turn-table by the defendant’s own conduct, and that, as to him, the turn-table was a hidden danger,—a trap.
While it is held that a mere licensee “must take the permission with its concomitant conditions,—it may be perils,” Hounsell v. Smyth, 7 C. B. (N. S.) 731; Bolch v. Smith, 7 H. & N. 836, yet even such licensee has a right to require that the owner of the land shall not knowingly and carelessly put concealed dangers in his way. Bolch v. Smith, per Channell and Wilde, BB.; Corby v. Hill, 4 C. B. (N. S.) 556, per Willes, J.
And where one goes upon the land of another, not by mere license, but by invitation from the owner, the latter owes him a larger duty. “The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any inducement, invitation, or allurement, either express or implied, by which they have been led to enter thereon.” Per Bigelow, C. J., in Sweeny v. Old Colony & Newport R. Co., 10 Allen, 368, reviewing many cases. And see Indermaur v. Dames, L. R. 1 C. P. 274; L. R. 2 C. P. 311.
Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years. If the defendant had left this turn-table unfastened for the purpose of attracting young children to play upon it, knowing the danger into which it was thus alluring them, it certainly would be no defence to an action by the plaintiff, who had been attracted upon the turn-table and injured, to say that the plaintiff was a trespasser, and that his childish instincts were no excuse for his trespass. In Townsend v. Wathen, 9 East, 277, it was held to be unlawful for a man to tempt even his neighbor’s dogs into danger, by setting traps on his own land, baited with strong-scented meat, by which the dogs were allured to come upon his land and into his traps. In that case, Lord Ellenborough asks, “What is the difference between drawing the animal into the trap by his natural instinct, which he cannot resist, and putting him there by manual force?” And Grose, J. says “A man must not set traps of this dangerous description in a situation to invite his neighbor’s dogs, and, as it were, to compel them by their instinct to come into the traps.”