Under its facts the case here presented is a novel one in this State. The nearest approach to it is Madden v. Mitchell Automobile Co., supra. There the facts as stated by the court were: that the sight-seeing car by which the plaintiff's son, eleven years of age, was injured "was run from Chattanooga, through Rossville, to Chickamauga National Park, and carried *Page 600 passengers for hire to points of interest along this route; that Burns, the driver, was in entire charge of the operation of the car, and his duties were to collect fares and operate the car; that at a place called the Iowa Monument the driver always checked the speed of his car and delivered a `spiel' to the passengers, explaining this point of interest; that this place was a playground for children, especially for certain boys who congregated here and played ball; that it was the regular custom of these children, when the car `slowed up' at this point, to mount the running-boards of the sight-seeing car which ran lengthwise of the car on both sides, about a foot above the ground; that this custom extended over a period of several years, and was well known to Burns, the driver who was in charge of the car on this occasion. One of the witnesses testified: `It was the habit of us boys to ride when we pleased at this particular place; that had been our habit and custom about two years. Mr. Burns and the other drivers made no objection to our doing that. When I made these trips in these cars we got out there — I did — at the park and opened the gates for them. The driver, Mr. Burns, and the others knew we opened the gates; it was an accommodation to him and the passengers.' The testimony further showed that these boys would ride upon the car to a certain monument called the Wilder Monument, and there get off with the driver and passengers to visit this point of interest, and then ride to a certain place on the return of the car, where they all got off. The evidence tended to show that this custom was well known to the driver and was tacitly consented to by him; that on the day when deceased met his death one of his companions had already mounted the car as it approached the Iowa Monument; that as it approached, the boys were there in the road for the purpose of swinging it, as was their custom; that one of them ran across the road about fifteen feet in front of the car to the left-hand side of the car, and that the driver was looking ahead and must have seen this boy; that two of the boys were in the road on the right-hand side for the purpose of swinging the car, one of them being the deceased; that they were in this position some twenty-six feet in front of the car, so that the driver, in looking ahead, must have seen them as well as the boy who ran across in front of the car; that as the car approached the place of the Iowa Monument, where these boys were congregated in the road, it was running about four *Page 601 miles an hour; that the deceased attempted to mount the running-board of the car, and in doing this fell under the wheels and was run over and killed; that just as the deceased mounted the car, or attempted to mount it, the driver `speeded up' the car, and this sudden increase in speed caused deceased to fall. One of the witnesses testified: `He speeded up his car to keep us off; he hadn't been used to speeding up his car, and I just assume that was the reason.'"
This court held that the ruling announced by the Supreme Court in Ashworth v. Southern Railway Co.,116 Ga. 635 (43 S.E. 36, 59 L.R.A. 592), was applicable, where it was held: "Notwithstanding the plaintiff was an infant of immature years, he was wrongfully upon the running-board of the company's engine, and was therefore a trespasser. The only duty which a railroad company owes a trespasser is not to injure him wantonly or wilfully; and ordinarily this rule imposes upon the company simply the duty of taking proper precautions after the presence of a trespasser in a position of peril has been discovered. It will not do, however, to lay this down as an absolutely invariable rule. A railroad company may, by its own acts and conduct, impose upon itself the duty of anticipating the presence of a trespasser in such a position. . . A railroad company can not, in all cases, relieve itself from liability to a trespasser by showing merely that its servants and employees did not know of the presence of the trespasser, but in some cases it must go further and show that there were no circumstances from which an ordinarily prudent person would have had reason to anticipate his presence. . . Railroad companies may not be bound to anticipate that children will be allured by passing trains and attempt to board and ride upon them. But when the right of way of a railroad company extends through a place used as a playground by a number of children of ages varying from six to fifteen years, and when these children are accustomed continuously, every time the train enters the playground when they are upon it, to swarm upon the train and ride to the limits of the playground, and when the employees of the company know of this custom and make no objection to it, the company is bound to carry the burden which such a knowledge and tacit permission impose, and this burden would require the company to comply with the demands of ordinary care for the prevention of injury to the children." *Page 602 It was stated by this court in the Madden decision: "While the deceased in the instant case is to be treated as a trespasser, the question to be determined by this court is whether or not the evidence submitted by the plaintiff, tested by the rules announced in the Ashworth case, supra, make such a case of wanton and wilful negligence by defendant's servant in charge of the car that the case should have been submitted to the jury, and whether, therefore, the court erred in granting a nonsuit." Applying to the evidence in the Madden case the rulings announced in the Ashworth case, this court ruled as follows: "It is for the jury to say whether these boys were accustomed to congregate at this point, and whether or not the custom of these boys to mount this sight-seeing car was so regular and continuous and was so well known to this particular driver as to make it his duty to anticipate, when he saw the boys there, that they would do as they had been regularly in the habit of doing — mount or attempt to mount his car when it decreased its speed at this point, and to take the necessary precautions for their safety. It is for the jury to say whether or not on this occasion the presence of these boys for this purpose was known to the driver. It is for the jury to say whether or not the driver's negligent conduct under the circumstances amounted to wantonness and willfulness and was the proximate cause of the boy's death. Whether or not the deceased's failure to exercise due care — that is, such care as his age and capacity fitted him to exercise under the circumstances surrounding him at the time — would preclude recovery, is also a question to be passed on by the jury, under appropriate instructions from the court. The court erred in granting a nonsuit."
However, the Madden case is distinguishable on its facts from the case sub judice, and the application of the rulings there made do not require a holding that a cause of action was set out in the petition in the present case. The differences in the facts will now be set forth. In the Madden case the driver not only did not ordinarily attempt to keep the children from boarding the sight-seeing car, but he knew of their practice in mounting the running-board and riding upon it, and tacitly consented to their doing so. Only on the occasion of the death of the plaintiff's son did he do anything to prevent their mounting, and, contrary to what his custom in slowing down the car would naturally cause the children to expect *Page 603 in their practice of boarding the car, on that occasion he speeded up the car under circumstances where the jury would be authorized to find that at the very moment he should have known that some of them would, as did the deceased, attempt to mount the running-board. The jury might well find that he should have known that his deliberate act would endanger the life of any one boarding the car at its increased speed. In the present case the deceased was among those accustomed to congregate about the store and truck. While there are allegations appropriate to an attempt to set out a cause of action based on the "attractive nuisance" doctrine, following the old turntable cases, it could not be said that the ruling there made could be so extended as to apply to a truck lawfully being used in the transaction of its owner's business on the streets of a municipality; and in fact the brief of counsel for the defendant in error expressly disavows any intention to rely on such doctrine, but the right of the plaintiff to recover is based solely on the alleged wilfulness and wantonness of the defendant's servants in the respects named in the petition. But the allegations of the petition show that on the occasion of the death of the plaintiff's son, although he had boarded the truck while it was parked, he was driven away, and it is alleged that the servants "immediately entered the cab of the truck, and without any warning started the same suddenly in motion and drove" away. The deceased having been driven away, it does not appear that he was near enough to require any warning of the intention of the driver to start the truck; and construing the petition most strongly against the pleader, on general demurrer, it must be taken as not showing that the servants knew that the plaintiff's son was on the truck when it was put in motion. It is not alleged that they knew of any habit of the children to renew any effort to board the truck after they had once been driven away. It is true that the petition alleges that they knew, or in the exercise of ordinary care should have known, that the children would renew their attempt to get upon the truck; but this is only an allegation of constructive knowledge, and the facts do not show that they knew that, as alleged, the child, after being driven from the right side of the truck, immediately ran to the left side and climbed upon the bottom rung of the ladder just to the rear of the cab of the truck. The truck was on a city street where it may reasonably be assumed that much traffic *Page 604 was in progress about 12:30 p. m. To transact the legitimate business of their employer it was necessary that the servants drive this truck through city traffic, and to avoid injury or death to others it was incumbent upon them to obey the law and keep a sharp lookout ahead. to hold that they must fulfill this duty and at the same time, when putting the truck in motion, detect the presence of a trespasser hanging behind the cab, would be to hold that they must do the impossible or be Argus-eyed. With no actual knowledge or anything to put them on notice that this child, after being driven from the right side of the truck, would renew his attempt to ride, I think it should be held as a matter of law that no duty rested upon those on the truck, in the circumstances, to look to the rear or inspect to determine if any child might be hanging on the truck. Likewise there was no duty resting on them so to drive the truck as to avoid injury to any one not entitled to be and not known to be on the truck in its progress through the streets.
Few cases are to be found in other jurisdictions dealing with the questions here involved; but the rulings in several pertinent cases are stated in substance by well-known text-writers, and are in harmony with what I have stated above. "If a driver has reason to anticipate that a child might be near his automobile, it is his duty to see that the way is clear before starting the vehicle in motion [Freehill v. Consumers' Co., 243 Ill. App. 1; Ostrander v. Armour Co., 176 App. Div. 152 (161 N. Y. Supp. 961); Heikkila v. Standard Oil Co., 193 Wis. 69 (213 N.W. 652)]; but if he has no reason to anticipate the presence of children near his car, negligence can not be predicated on the mere fact that he started his machine, injuring the child [Heikkila v. Standard Oil Co., supra]. If the driver looks around the car and observes a child standing on the running-board, he should give it time to get off, and wait until it does get off [Ostrander v. Armour Co., supra]; and where the owner or driver of an automobile finds a child of tender years on the running-board and drives it away, after which the child again returns to the car, when it is again driven away, the child still remaining in close proximity to the car, the driver is required to exercise reasonable care to see that it is not injured in another attempt to board the car [Ziehm v. Vale, 98 Ohio St. 306 (120 N.E. 702, 1 A.L.R. 1381)]. If in such case the infant, after having been so driven away, without the notice of the owner when *Page 605 he starts the car, gets upon the running-board, the rule of care as to a bare licensee committing a trespass does not apply [Ziehm v. Vale, supra]. Ordinarily a driver is not required to search for children on the running-board on the far side of the vehicle, or hidden underneath or in front of it, whom he can not see before starting [Williams v. Cohn, 201 Iowa, 1121 (206 N.W. 823)]." 2 Blashfield, Automobile Law, 554, § 1509. "A child who takes hold of a moving vehicle to gain a ride is a trespasser; and if his injury occurred while he was so related to the vehicle, he may not recover except for wanton injury. [Renfroe v. Collins Co., 201 Ala. 489 (78 So. 395)]. However, a driver who, with full knowledge that a child is riding on some part of his automobile, although the child was not invited, can not consider the child as a trespasser to whom he owes no higher duty than to merely refrain from doing him a wanton injury [LaRose v. Shaughnessy Ice Co.,197 App. Div. 821 189 N. Y. Supp. 562; Grabau v. Pudwill, 45 N.D. 423 (178 N.W. 124)]. Indeed, such a child has been considered as a gratuitous guest, to whom the driver's liability is the same as though he had in the first place invited him as a guest. Being such, the driver's liability is not limited to acts of active negligence alone [Grabau v. Pudwill, supra]. . . A driver is not negligent in failing to put a child off his truck when he had no knowledge, or reason to believe that the child was there [Samuel v. George Weidemann Co., 295 Fed. 314]." Id. § 1510. See also 5-6 Huddy's Automobile Law, 67, § 44.
The petition shows that the child was a trespasser, and no circumstances are made to appear requiring the defendant, through its servants on the truck, to anticipate that the child was on the truck at any time after he was driven off. Therefore the petition did not set forth a cause of action, and the general demurrer should have been sustained.