Counsel for plaintiff in briefing their motion for a rehearing have not called to our attention a single point not covered in their original brief and argument, or not considered by us before rendering our decision. They have most ably and exhaustively presented again their original contentions *Page 284 as to the principles of law which they believe should govern the case at bar, and courteously but firmly insist that we have failed utterly to grasp the meaning of the cases on which they rely and have ignored their applicability to the circumstances of this case.
We think counsel in their natural and indeed commendable zeal for their client have either never understood, or else have disregarded, certain fundamental and vital principles underlying the law of negligence, and because of that fact, most of their brief is devoted to an attempt to induce us to indorse certain rules of law which we have already approved in our original opinion, while the remainder urges a conclusion which is a nonsequitur from these rules, when considered with the more fundamental principles which they disregard or misunderstand.
We therefore state briefly these principles that we may point out the fallacy involved in plaintiff's argument.
This is an action to recover damages for an injury received by plaintiff through the alleged negligence of defendant.
The first and fundamental principle of substantive common law governing such actions is that, where one is injured by the negligence of another who owes him the duty of refraining from such negligence, the injured person may recover damages from the one owing such duty. The proposition is so elementary that we cite no authorities in support thereof.
Now it will be seen that there are two essentials which must exist in order to create liability: (a) Duty to the injured party; and (b) a violation of that duty by the defendant. Either one without the other is insufficient.
In determining whether a duty exists, it may be necessary to consider many things, but among the most important is the place where the accident occurred, and it is almost universally held subject to certain *Page 285 qualifications, which we shall discuss later, that a trespasser cannot recover from the owner of the place where he is trespassing, for injuries received thereon as a result of the negligence of such owner, unless the negligence is wilful or wanton; or, to put it more simply, an owner owes no duty to a trespasser except to refrain from wilful and wanton negligence.Conchin v. El Paso etc. Ry. Co., 13 Ariz. 259, 28 L.R.A. (N.S.) 88, 108 P. 260; Giannini v. Campodonico, 176 Cal. 548, 169 P. 80; Bremer v. Lake Erie etc. Ry. Co., 318 Ill. 11, 41 A.L.R. 1345, 148 N.E. 862; Weitzmann v. A.L. BarberAsphalt Co., 190 N.Y. 452, 123 Am. St. Rep. 560, 83 N.E. 477;Gypsy Oil Co. v. Ginn, 88 Okla. 99, 212 P. 314.
And the owner or person in charge of property is not under any duty to protect trespassers thereon from injury. Erie Ry. Co. v. Hilt, 247 U.S. 97, 62 L.Ed. 1003, 38 Sup. Ct. Rep. 435;Hynes v. New York Central R. Co., 231 N.Y. 229, 17 A.L.R. 803, 131 N.E. 898; San Antonio etc. Ry. Co. v. Morgan, 92 Tex. 98, 46 S.W. 28. Or to prevent them from getting into a place or situation of danger. O'Leary v. Brooks Elevator Co.,7 N.D. 554, 41 L.R.A. 677, 75 N.W. 919; Gypsy Oil Co. v. Ginn,supra.
The reason is obvious. It would be intolerable that one who would not have been injured save for his own unlawful act may penalize another. The rule is so plainly founded upon principles of natural justice and equity that it is almost universally accepted; the only apparent exception being in cases where the court has reached a correct conclusion, but stated the wrong reason therefor, or else has, as even appellate courts do at times, allowed sympathy for the injured party in the particular case to obscure the far more disastrous result in other cases of the adoption of a wrong principle of law.
This as a general principle applies to adults and children alike. Heller v. New York etc. Ry. Co., *Page 286 (C.C.A.) 265 Fed. 192, 17 A.L.R. 823; Norman v. Bartholomew,104 Ill. App. 667; Papich v. Chicago etc. Ry. Co., 183 Iowa 601, 167 N.W. 686; Nicolosi v. Clark, 169 Cal. 746, L.R.A. 1915F 638, 147 P. 971; McDermott v. Burke, 256 Ill. 401,100 N.E. 168; Blakesley v. Standard Oil Co., 193 Iowa 315,187 N.W. 28; Ellington v. Great Northern Ry. Co., 96 Minn. 176, 104 N.W. 827; Walsh v. Fitchburg R. Co., 145 N.Y. 301, 45 Am. St. Rep. 615, 27 L.R.A. 724, 39 N.E. 1068; Wheeling etc.Ry. Co. v. Harvey, 77 Ohio St. 235, 122 Am. St. Rep. 503, 11 Ann. Cas. 981, 83 N.E. 66, 19 L.R.A. (N.S.) 1136; Faurot v.Oklahoma Wholesale Grocery Co., 21 Okla. 104, 17 L.R.A. (N.S.) 136, 95 P. 463; Barnhart v. Chicago etc. R. Co., 89 Wn. 304, L.R.A. 1916D 443, 154 P. 441.
It was early recognized, however, that to apply it with the same strictness to young children who, while they were technical trespassers, as a matter of fact had no knowledge of what a trespass was, or that it was wrongful to invade the property of others, was a harsh doctrine, and certain qualifications of the rule of nonliability for injuries occurring to children on the property of the negligent person were established.
In determining what these qualifications should be, two conflicting equities were in at least apparent conflict. One is that it is obviously unjust to make the property owner the perpetual watchman and insurer of the safety of all the children in the neighborhood; the other is that he should at least in handling his property consider and guard against certain wellknown and innate characteristics of children.
While it is probable that in many earlier cases there was an attempt to reconcile these equities, the case in which the principle which we now discuss was first clearly enunciated was the famous one of Lynch v. Nurdin, 113 Eng. Reprint 1041. Plaintiff insists this case holds that an infant in a public highway cannot *Page 287 be a trespasser on an object located in the highway. On the contrary, it holds definitely and specifically that the infant in question when he climbed into the cart standing on the highway was a trespasser. The headnote to the case reads as follows:
"John Lynch, by Elizabeth Lynch, his Mother and Guardian, v. Nurdin, 1841. Defendant negligently left his horse and cart unattended in the street. Plaintiff, a child seven years old, got upon the cart in play; another child incautiously led the horse on; and plaintiff was thereby thrown down and hurt. Held, that defendant was liable in an action on the case, though plaintiffwas a trespasser, and contributed to the mischief by his own act. And that it was properly left to the jury, whether defendant's conduct was negligent, and the negligence caused the injury." (Italics ours.)
Lord Denman, in rendering the opinion of the court, stated:
"It is urged that the mischief was not produced by the mere negligence of the servant as asserted in the declaration, but at most by that negligence in combination with two other active causes, the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart and so committing a trespass on the defendant's chattel. . . . The plaintiff himself has done wrong; he had no right to enter the cart, and, abstaining from doing so, would have escaped the mischief. . . .
"But the question remains, can the plaintiff then, consistently with the authorities, maintain his action, having been at least equally in fault. The answer is that, supposing the fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. Themost blameable carelessness of his servant having tempted thechild, he ought not to reproach *Page 288 the child with yielding to that temptation. . . ." (Italics ours.)
We think it is impossible to read this case carefully without realizing that it was specifically held that plaintiff was a trespasser, but, because it was the act of defendant's servant which tempted the child to become such, he could not enforce the rule of law that a defendant owes no duty to a trespasser except to refrain from wanton and wilful negligence.
On the simple yet pregnant words we have italicized above has been erected the enormous superstructure of the so-called "attractive nuisance" doctrine. Hundreds if not thousands of cases have claimed to base themselves on these words, and have drawn from them most different and at times astounding conclusions, and yet, if we but hold fast to the idea so clearly expressed therein, we have an Ariadne's thread which will lead us out of the labyrinth. While courts have differed as to the philosophical explanation of the raison d'etre for the rule, the essential elements are unmistakable if it is to be applied. (a) The defendant must have tempted the child to come on his property; and (b) he must have yielded to that temptation.
In every case in which a judgment in favor of a trespassing child injured on the property of the person alleged to be negligent has been upheld, these two elements have appeared, with the possible exception of a very few cases sustainable on no rule of law generally accepted by respectable authority, or where the violation of an express statute was involved.
The courts, however, have uniformly recognized that it is not everything which tempts a child for which the owner of property will be responsible. They realize there is practically no object, natural or artificial, which may not be a great attraction to *Page 289 some child, and that, if the sole test is temptation, regardless of the nature of the object or how it got there, the property owner is in effect an insurer of the child's safety. While different courts have reached different conclusions as to the specific objects which come within the attractive nuisance doctrine, there are certain principles which are quite generally applied.
In the first place, so far as we are aware, there is no case which holds that natural objects not placed on the property by the defendant, are attractive nuisances, while a number of cases hold specifically they are not. Johnson v. Atlas Supply Co., (Tex.Civ.App.) 183 S.W. 31; Fuscia v. Central L. P. Co.,2 La. App. 195; McFarland v. Martin, 90 Pa. Super. 151;Myer v. Union L., H. P. Co., 151 Ky. 332, 43 L.R.A. (N.S.) 136, 151 S.W. 941.
In the second place, the modern tendency, even in those jurisdictions which have approved the attractive nuisance doctrine, is to limit rather than increase the variety of objects held to be nuisances, and to confine them to things of unusual character, more than ordinary attractiveness, and easily accessible to children by reason of their location. New York,N.H. H. Ry. Co. v. Fruchter, 260 U.S. 141, 67 L.Ed. 173,43 Sup. Ct. Rep. 38; United Zinc Chemical Co. v. Britt,258 U.S. 268, 66 L.Ed. 615, 42 Sup. Ct. Rep. 299, 36 A.L.R. 28;Salladay v. Old Dominion Copper Co., 12 Ariz. 124,100 P. 441; Giannini v. Campodonico, supra.
In the third place, unless the child goes on the property by reason of the temptation of the very instrumentality which is held to be the attractive nuisance, he cannot recover. Erie R.Co. v. Hilt, supra; Giannini v. Campodonico, supra; Shaver'sAdmr. v. Louisville G. E. Co., 207 Ky. 180, 268 S.W. 1082;National Metal Edge Box Co. v. Agostini, (C.C.A.) *Page 290 258 Fed. 109; O'Leary v. Brooks Elevator Co., supra; Carr v.Oregon-Washington R. N. Co., 123 Or. 259, 60 A.L.R. 1434,261 P. 899; Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 27 L.R.A. (N.S.) 124, 125 S.W. 439; Fusselman v. YellowstoneValley Land Co., 53 Mont. 254, Ann. Cas. 1918B 420, 163 P. 473.
Let us apply these principles to the case at bar. Plaintiff contends that the pole on which he was when he was injured is an attractive nuisance which excused his trespass. We have held that due to its character and location it satisfies the first two conditions above set forth. If, therefore, the third condition appears, plaintiff is entitled to recover. But not only did plaintiff fail to allege and prove that the temptation to which he yielded was the pole; he affirmatively alleged in his complaint and proved by his own positive testimony that it wasnot the pole, but a bird's nest on top of the pole, which was the temptation to which he yielded, and that the pole was merely a convenient means of access to the real temptation. And we have been cited to no case where the real temptation was a natural object not placed on the property by the owner, where the latter was held liable under this doctrine. On the contrary there are several cases involving bird's nests specifically holding there was no liability. New York, N.H. H.R. Co. v. Fruchter,supra; Graves v. Washington Water Power Co., 44 Wn. 675, 11 L.R.A. (N.S.) 452, 87 P. 956; Cox v. Des Moines Elec. Co.,209 Iowa 931, 229 N.W. 244; Kent v. Interstate etc. Co., (Ind.App.) 168 N.E. 465.
Plaintiff relies principally on the six following cases:Clark v. Pacific Gas Electric Co., (Cal.App.) 5 P.2d 58; Id., 118 Cal.App. 344, 6 P.2d 297; Stedwell v. Cityof Chicago, 297 Ill. 486, 17 A.L.R. 829, 130 N.E. 729; Deming v. City of Chicago, 321 Ill. 341, 151 N.E. 886; Robertson v. *Page 291 Rockland L. P. Co., 187 App. Div. 720, 176 N.Y. Supp. 281;Klingensmith v. Scioto Valley Traction Co., 18 Ohio App. 290;Znidersich v. Minnesota Utilities Co., 155 Minn. 293,193 N.W. 449. Let us consider the facts and the decisions in these cases.
In the Clark case the complaint alleged specifically that the minor therein "was attracted by the steps of said pole line and climbed from the ground to the top thereof." The evidence shows, again quoting from the decision, "the plaintiff picked out the pole in question because it was easy to climb," and the case was tried on the theory that the pole itself was the attraction and invitation which was accepted by the plaintiff. On reading the whole case, together with the citations, it appears that the court was somewhat in doubt as to whether the decision should be based on the fact that the pole was maintained contrary to specific orders of the Railroad Commission of California which had jurisdiction to regulate such structure, or upon the attractive nuisance doctrine. Be that as it may, however, it will be found that on an examination of practically every authority cited in the Clark case, in which recovery was upheld, it appears that there was something dangerous maintained by the defendant upon the premises in question which attracted the child, and that he went upon the premises by reason of the attraction of suchparticular instrumentality, a situation very different from that shown by the pleadings and the evidence in the case at bar.
We consider next the case of Stedwell v. City of Chicago. Therein the pleading was that the attractive object was a certain latticed pillar or ladder-like structure, which, like the poles referred to in the present case, was easily climbed by children, and the appellate court in passing upon the matter stated that, since the pillar upon which the child was when he was injured was not constructed by and did not belong *Page 292 to defendant in that case, he could not invoke the doctrine of trespass. The attractive nuisance doctrine had no place in the Stedwell case, for the reason that the child there was in a place where, so far as the defendant was concerned, he had a right to be, and under no theory was he a trespasser upon defendant's property, again a very different situation from the case at bar.
In the case of Deming v. City of Chicago, the court says: "This injury occurred in a tree in a public street, and the deceased was, therefore, not a trespasser at the time he was killed" — citing the Stedwell case as authority therefor. If the Stedwell case be considered as an authority for this statement by the court, it can only be on the basis that the tree was not owned by the defendant in the case. In some states it is true that trees in a public street are owned by the city, but in most jurisdictions, and apparently in Illinois, they belong to the abutting property owner. Barclay v. Howell, 6 Pet. 498,8 L.Ed. 477; Town of Palatine v. Kreuger, 121 Ill. 72,12 N.E. 75; Old Town v. Dooley, 81 Ill. 255; Denniston v. Clark,125 Mass. 216. Obviously again plaintiff was not a trespasser.
There remain then the Klingensmith, Robertson and Znidersich cases. While the language used differs, yet the court in each of these cases does in substance lay down the rule that there can be no such a trespass by a child on an object maintained either legally or illegally in a public street, as will render the owner of that object exempt from liability if the child is injured through his negligence.
If this is a full and correct statement of the law, plaintiff herein unquestionably made a case to go to the jury.
We think, however, that a careful analysis of the reasons given in each case to sustain such a rule will show clearly that, while the ultimate result under the *Page 293 facts of the particular case might be right, the rule of law stated above cannot be sustained. Two reasons for the rule referred to are given in each case: (a) that the injured child had as much right in the street as the dangerous object; and (b) that the dangerous object is a temptation to children. These reasons must be either conjunctive or disjunctive. If they are conjunctive, reason (a) is immaterial, for admittedly in states which accept the attractive nuisance doctrine, if the dangerous object is really as a matter of law a temptation for which the owner is responsible, whether it be on or off the street does not affect the extent of his liability.
If, on the other hand, they are disjunctive, reason (a) would allow adults injured under similar conditions to recover, for they have just as much right in the streets as children. This shows the fallacy of the reason, for no one would contend an adult injured under the circumstances of this case could recover.
As a matter of fact, we think the courts in the cases cited have confused two very different kinds of situations and the reasons for the rule of law governing each. So long as the person, child or adult, remains on the highway, he is no trespasser, and that defense does not apply. When he leaves it, either horizontally or vertically, he is no longer in the highway, but if he is a child he may recover if the facts bring the case within the attractive nuisance doctrine, even though he is a trespasser.
The only way in which the fact that a dangerous object is located in a public place affects liability to a child as distinct from an adult is that the object so situated is more likely to be a temptation than one further away. Things half a mile from the highway might properly be held not to be legal temptations, where the identical things on or near a highway would be such. The courts then should consider the location of the dangerous object, not as bearing on the question *Page 294 of trespass, but of temptation, and realize that a vertical removal of the injured person from the highway has the same effect as a horizontal one. Such was the holding in Lynch v.Nurdin, supra.
None of the six cases relied on by plaintiff is authority which will sustain the judgment herein, for the reason that in the first three the child clearly was either fully within the attractive nuisance doctrine as explained by us, or was in no sense a trespasser on defendant's property, and in the last three, the rule of law laid down, which alone would make them applicable to the facts of this case, is unsound.
In this case, if plaintiff relies on the pole as the attractive nuisance, he proved from his own mouth that was not the temptation; if he relies on the bird's nest, it is a natural object for whose presence defendant is not responsible.
The present motion for rehearing illustrates most forcibly the temptation for an appellate court to live up to the old adage that hard cases tend to make bad law. The natural instinct of every humane person to sympathize with the suffering of a child and to search for some excuse to compensate it for an injury, tends to cause appellate judges, as well as jurors, to forget that even such a pitiful situation does not authorize them to mulct a defendant not legally responsible therefor, merely because it is a wealthy corporation and the child would otherwise go uncompensated. Were we empowered to award relief in accordance with our individual emotions in each particular case, so that the rule laid down to-day would be no precedent for the action of to-morrow, it might be that no serious harm would result to any one but defendant herein from an affirmance of liability in the present case, and that a retroactive rule of law, imposing liability where none had previously existed, might be condoned on the ground of moral equities which it is contended appear. *Page 295
But we can only determine particular cases by the application of general rules which affect all alike, and the rule which we must necessarily adopt to sustain the present action would be such a revolutionary one and impose such uncertainty and unlimited liability on property owners, with no effectual practical method of protecting themselves in the use of their homes, their property or their business, that we feel it should be laid down, if at all, by legislative rather than judicial action.
As a matter of common sense and justice, where instrumentalities so dangerous that the proper application of common-law principles will not adequately protect the public are concerned, the legislature, or a proper administrative body under its supervision, can and should regulate in advance by specific rules the use of those instrumentalities. The owner would then know just what he must do to avoid liability, and there would be no danger that the rules would, as is the case when appellate courts enunciate unsound general principles of law, work grievous injustice in cases never contemplated when they were adopted.
So far as the particular dangerous instrumentality complained of in the case at bar — the poles — is concerned, the legislature can easily and simply safeguard them in the future, if it so thinks advisable. If we penalize defendant for not doing so under the facts of this particular case, we must repudiate many well-established and beneficial principles of the common law and by retroactive judicial legislation in effect burn down the house to drive out the rats. Much as we sympathize with plaintiff in his injuries, we cannot consistently with our duty do anything but deny the motion for rehearing.
ROSS, J., concurs. *Page 296