This is an action to recover damages for wrongful death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant. The trial court sustained a demurrer to the amended complaint and, upon refusal of plaintiff further to plead, dismissed the action. Plaintiff appeals. AFFIRMED. The defendant Robert Z. Drake, under the assumed name of the Standard Sesoning Society, was engaged in the manufacture of bridge timbers. In connection with the operation of the plant there was a large platform upon which the newly sawed bridge timbers were piled. These timbers were about three inches thick, twelve inches wide and eighteen feet long. The piles of timber were between five and six feet high with passageways between for the convenience of those who worked in and about the plant. It is alleged that Ruby Schilker, a little girl about eight years of age who lived approximately ninety yards from the platform, had been for a period of nearly three months prior to the accident, accustomed daily to go upon the premises of the defendant for the purpose of playing upon and around these lumber piles, all of which was known to the defendant who made no objection. It is alleged that this little girl was greatly attracted and lured to these "bright, new bridge timbers," and that, on *Page 695 April 29, 1928, while she was playing upon or climbing over one of the piles of timbers, some of them fell upon her, by reason of the negligence and carelessness of the defendant in piling the same, producing injuries from which she soon died.
Plaintiff relies upon the doctrine of attractive nuisances. There is no subject relative to the law of negligence concerning which there is such wide divergence of opinion among courts. Indeed, it is difficult to reconcile the decisions of this court as to whether the doctrine has been approved or rejected. Many courts have rejected it as unsound and an unwarranted interference with the beneficial use of property; others, although recognizing the doctrine, have greatly limited and restricted its application, while in a few jurisdictions the rule has been so extended as to apparently shift to the land owner the primary and natural duty of parents to protect their children from damage.
It may be said, however, with some degree of certainty, that the modern tendency of the courts has been toward a restriction of the attractive nuisance doctrine: United Zinc Chemical Co. v. Britt, 258 U.S. 268 (66 L. Ed. 615, 42 Sup. Ct. Rep. 299, 36 A.L.R. 28); 20 R.C.L. 81, and numerous cases collated in exhaustive note in 36 A.L.R. 45. A decided change of attitude by the United States Supreme Court is observed in the Britt case. It is a far cry from the pioneer turntable case of Sioux City Pacific Ry. Co. v. Stout, 17 Wall. 657 (21 L. Ed. 745), decided in 1873. In the Britt case two children were lured on a hot July day to bathe in a clear pool of water poisoned by sulphuric acid and zinc sulphate, which was maintained on an abandoned plant of the defendant company. It is difficult to conceive of anything more attractive or *Page 696 alluring to a red-blooded American youth than a swimming pool, yet recovery was denied. The case might well be regarded — as it was by those justices dissenting — as one in which the doctrine was practically rejected. The fact that the pool was not visible from the highway or from any place where children had a right to be does not, in our opinion, establish a reason for the rejection or approval of the legal principles underlying the turntable cases. There were plain paths leading from the highway to and past the pool in question. It is suggested that the Britt case is distinguishable from the one at bar in that in the latter the defendant had knowledge that the little girl killed was using the piles of timber as a playground and made no objection thereto. Unquestionably such knowledge is a factor to be taken into consideration but is not controlling. Mere sufferance or toleration by a land owner as to trespassing children does not ripen into invitation. Certainly it cannot be contended that the defendant intended to invite children to use his plant as a playground. Such use did not inure to his benefit but was, in fact, a constant menace and detriment to the beneficial use of his property. We conclude that the Britt decision, viewed in its entirety, is against the contention of the appellant herein.
This court, in Riggle v. Lens, 71 Or. 125 (142 P. 346, Ann. Cas. 1916C, 1083, L.R.A. 1915A, 150), and in Haynes v.Oregon-Washington R. N. Co., 77 Or. 236 (150 P. 286), unquestionably rejected the attractive nuisance doctrine, but in later cases, particularly in Fisher v. Burrell, 116 Or. 317 (241 P. 40), and in Carr v. Oregon-Washington R. N. Co.,123 Or. 259 (261 P. 899, 60 A.L.R. 1434), the doctrine was discussed and a strong inference arises therefrom that it has the approval of this court under *Page 697 such restrictions as will prevent an unreasonable and unjust interference with the beneficial use of property. It is difficult to make any statement of a hard-and-fast rule governing its application, but we think liability attaches to a land owner, even as against children who are technical trespassers, where there is maintained an agency or instrumentality dangerous perse and which, on account of its nature and location, is particularly attractive and alluring to children. The doctrine is an exception to the general rule that the trespasser or bare licensee takes the property as he finds it and the owner owes no duty to him except to avoid wilful or wanton injury. The mere fact that the child is a technical trespasser does not, of itself, preclude a recovery, if, under the circumstances and on account of the character of the dangerous instrumentality, a duty arises on the part of the land owner to protect from injury children of immature judgment.
If, in the instant case, the child had been an adult, there would be no doubt as to the nonliability of the defendant. Negligence is predicated upon a breach of duty. The pertinent inquiry, therefore, is: What duty, if any, did the defendant owe to this little girl who was a technical trespasser upon his property? The answer hinges upon whether the attractive nuisance doctrine applies to the facts as alleged in the complaint. We think it has no application. In the Carr case this court held, as a matter of law, that the defendant was entitled to a directed verdict. There a little boy eight years of age met his death by the falling of a pile of railroad ties located upon the right of way of the railroad company. Yet we are asked to hold that recovery may be had for the death of a child of similar age, which *Page 698 occurred through the falling of a pile of bridge timbers. Where lies the difference in principle? As was said by Mr. Justice ROSSMAN, speaking for the court in the Carr case:
"If the law should regard such a common object as a pile of ties an attractive nuisance it would lead to vexatious and oppressive litigation and impose upon owners a burden of vigilance and care which would materially impair the value of property and seriously cripple owners in making beneficial use of the property."
The defendant in the instant case is certainly entitled to carry on a legitimate business enterprise. Would the law go to the absurdity of requiring him to build a high wall around this lumber platform in order to prevent children from being attracted or lured by these "bright, new bridge timbers"? If so, what would be the color and height of the wall — for who knows what may be attractive or alluring to the active mind of a child? In the case at bar it is alleged that the child played daily upon this dangerous pile of bridge timbers for a period of three months and that such place was in plain view of her home ninety feet distant. If such be true the parents must indeed have been derelict in their duty. Yet they now seek to profit by the fruits of their own negligence.
If the doctrine applies to a pile of bridge timbers then, with equal propriety it may be applied to a pile of wood located upon one's property preparatory to storing it for the winter's use. It may readily be seen that, if the court gives its approval to such an extension of the doctrine as urged by plaintiff, the owner of property would practically become an insurer of the safety and welfare of little children *Page 699 who, through kindness, are permitted to enter upon his premises.
In the Carr case there was evidence that the defendant company had knowledge that children had often used the property in question as a sort of playground, so that case cannot be distinguished from the instant one by reason of the element of knowledge. It is urged that, in the Carr case, it was held that the boy was not lured to the pile of ties, but we answer: If the doctrine has no application to such a common object, it is immaterial whether he was lured or not. The attractive nuisance doctrine cannot be invoked merely because a witness testifies that he was lured or attracted to some dangerous instrumentality. Whether it applies is a preliminary question of law for the court to decide. The great weight of authority is that such doctrine has no application to a pile of lumber or ties. See cases in note 36 A.L.R. 213. Carr v. Oregon-Washington R. N. Co., supra, so decides and is controlling here.
The judgment of the lower court dismissing the action is affirmed. AFFIRMED.
BEAN and BROWN, JJ., concur.
COSHOW, C.J., dissents.