The various houses, buildings, hull piles, etc., to which the majority refer as being in the neighborhood of the substation, were, with it, situated upon a plot of ground four blocks in area without intervening streets. In other words, there would have been four blocks had there been intervening streets to so divide the land.
The transformer where the child was burned was located in an inclosure about eighteen by twenty feet, with a high fence around it, this inclosure being on this four-block area. No witness testified that any child had ever been seen within this inclosure. The father of the injured boy testified that it had never occurred to him that a child would play within the inclosure where the transformer was located. This was, of course, because of the presence of the fence. Why, then, should any such danger have been anticipated by any other person? Children did play upon these four blocks and on the various objects thereon, as stated by the majority, but no one had ever seen a child within the inclosure containing the transformer.
There was testimony to the effect that the gate was not kept locked, and was fastened only with two twisted wires, one at the top and the other at the bottom of the gate. But the majority opinion recites the fact that the man who first reached the boy found the gate fastened, and that he was required to push it down to obtain *Page 688 access. Just what force was required to accomplish this purpose is not shown. But the condition of the gate is unimportant, as it is certain that entrance to the transformer was not had through the gate.
The fence enclosing the transformer consisted of three strands of a mesh wire, each strand being twenty-six inches wide, which made a mesh fence six and one-half feet high. There is no contention that access was obtained through the mesh, as they were too small to make that possible. Above this wire fence four strands of barbed wire extended outward on cross-arms, so that the entire fence was about ten feet high. It was these barbed wires above the mesh fence which could be extended so that an intervening space of two feet would exist between them.
No witness saw the boys enter the inclosure. The injured boy was not offered as a witness, and the testimony of his companion, offered by defendant, was excluded on account of his youth. The offer was made to show by this excluded testimony that the boys climbed the fence to get a bird's nest, and later climbed down into the inclosure. This bird's nest was in a corner post (a sawed-off telephone pole) of the inclosure, but it was not shown that the defendant was previously aware, or should have been, of the presence of this bird's nest. However, the complaint is not made that the bird's nest was an attractive nuisance. It would require an unusual degree of care to prevent boys from climbing trees and posts in search of birds' nests.
The only affirmative testimony as to how the boys entered the inclosure — the testimony of the Grubbs boy being excluded — was furnished by defendant. A number of witnesses testified on behalf of defendant to the effect that there were footprints on the posts and braces. The injured boy wore shoes. His companion was barefooted. A witness testified that he observed "one foot-print on the angle brace that came up at the side of the corner post, and this brace had showed the print of a foot where *Page 689 some one had climbed up the brace to get on the inside of the substation."
It appears, therefore, even with the testimony of the Grubbs boy excluded, that entrance to the inclosure was obtained by climbing over the fence at the post where the bird's nest was. There would even then have been no danger had not the injured boy, with the aid of the plank, after getting into the inclosure, climbed upon the transformer, where he could reach the wire. It is true this wire was not insulated, but why should it have been, if it was in a place where there was no reason to anticipate that it could be reached, even by a child?
The law of attractive nuisances is exhaustively annotated in a note to the case of United Zinc Chemical Co. v. Van Britt, 36 A.L.R. p. 28. The annotations extend from page 34 to page 294, and this exhaustive review is summarized as follows: "To recapitulate: To make out a case against the person responsible for the danger, there must appear: First. That the injured child was too young to understand and avoid the danger. Second. That there was reason to anticipate the presence of such children, either because of some attraction on the premises, or because the danger was in some place where children had a right to be. Third. That there was a strong likelihood of accident. Fourth. That the danger was one other than those ordinarily encountered. Fifth. That the precautions not taken were such as a reasonably prudent person would have taken under the circumstances."
Under these tests, it occurs to me that a case of liability was not made. It is, no doubt, true that the injured child was too young to understand and appreciate the danger, but there was no reason to anticipate that he would climb over the fence, and it occurs to me that the precautions taken to prevent this were such as a reasonably prudent man would have considered sufficient.
In 45 C.J., page 682, at 185 of the chapter on Negligence, it is said: "A property owner is not required *Page 690 to make his premises `child proof' by providing all possible safeguards against the entry of children, but he fulfills his full duty when he provides such safeguards as would reasonably prevent injury to a child of ordinary and normal instincts, habits and training; and if he has provided such safeguards, he is not liable for injury to a child who had overcome the obstacles and succeeded in reaching a place of danger." The numerous cases cited in the note to the text just quoted fully sustain the text.
I do not review the cases cited by the majority to distinguish them from the instant case, but the distinction exists. For instance, the majority quote from the case of Wilmes v. Railroad, 175 Iowa 101, 156 N.W. 880, L.R.A. 1917F, 1024, in which case the Supreme Court of Iowa said: "We are not dealing with a trespassing child, for no one is a trespasser who comes by invitation of the owner." How can it be said that there was any invitation here, even to a child, where there was a ten-foot wire fence to keep all persons off the premises?
The same court said in the case of Anderson v. Fort Dodge, D. M. S. R. Co., 150 Iowa 465, 130 N.W. 391, that "To say that a property owner must guard against such injury to a trespassing boy simply because it is possible for him in a venturesome spirit to climb into the zone of danger would be intolerable."
It occurs to me that the majority opinion makes one possessing or operating an instrumentality, which might attract and injure a child, an insurer that the child shall not be injured by requiring such precautions to be taken that an injury is not possible.
This is very difficult, if not impossible, in the operation of any business in the conduct of which a child might be injured, and imposes a much higher degree of care than the law exacts.
It is my opinion that such precautions were here taken as the law requires, and that liability was not established, and a verdict should have been directed in defendant's favor, and I therefore dissent. *Page 691