(after stating the facts.) The instructions given by the circuit court to the jury in this case are based upon the theory that the defendant was obliged to fence or enclose its private grounds to prevent injury to all persons who might trespass thereon. This is error,, and the instructions are inapplicable and erroneous.
The instructions asked by the appellant are based upon the converse of this theory ; that is, that, as matter of law, the company owed no duty to any trespasser upon its private grounds, and was therefore not liable for injuring an infant, while so trespassing, unless the injury was wantonly inflicted. This is also erroneous.
The jury should have been instructed in this case that, in determining whether the defendant was liable or not for the injury received by the child, they should consider whether it appeared from the evidence that the pool of water in which he was scalded was attractive to children of the age of appellee, and whether this was or ought to have been known to the appellant, and whether, from all the circumstances in evidence, it appeared that the appellant, as a reasonably prudent person, ought to have anticipated that children of the age of the plaintiff would probably receive such injury as the plaintiff did receive, by reason of the situation and condition of the pool of water at the time the plaintiff received his injury. Children are required to exercise only such care and prudence as may reasonably be expected of those who possess only the intelligence and maturity of judgment which they possess. Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Milwaukee R. Co. 21 Minn. 207; Birge v. Gardiner, 19 Conn. 507; Evansich v. R. Co. 57 Tex. 126; Lynch v. Nurdin, 1 Ad. & E). (N. S.) 29. The owner of land is not required to provide against remote and improbable injuries to children trespassing thereon. But he is liable for injuries to children trespassing upon his private grounds, when it is known to him that they are accustomed to go upon it, and that, from the peculiar nature, and exposed and open condition, of something thereon, which is attractive to children, he ought reasonably to anticipate such an injury to a child as that which actually occurs. Bransom v. Labrot, 81 Ky. 638.
“It would put the proprietors of real estate under an oppressive burden to make them insurers against remote and improbable injuries to children while trespassing thereon.” Thompson on Negligence, secs. 603 and 604, and cases there cited.
For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.