By stipulation of counsel the two cases above were consolidated for trial, and are consolidated upon this appeal.
These cases were formerly before this court in a consolidated appeal from two orders sustaining demurrers to the respective complaints, and this court reversed said orders, holding that the complaints stated a cause of action. The decision is found in Baxter v. Park, and Dowd v. Park, 44 S. D. 360, 184 N. W. 198, and reference is made thereto for a statement of the facts involved.
Subsequent to that decision answers were interposed, issues joined, and the cases tried, and the jury in each case returned a general verdict for the plaintiff upon all the issues in the sum of $4,500.
At the request of the defendant a special interrogatory was submitted to the jury in each case in the following form:
“Q. Was the digging and undermining of the west bank of the excavation by Orville Claude Baxter and John Joseph Dowd, with other boys, the cause of the accident?”
This interrogatory in each instance was answered by the jury by the .word “Yes,” and such interrogatory so- answered was returned into court with the general verdict.
Thereafter the defendant in each case moved the court for judgment in favor of the defendant and' against the plaintiff, notwithstanding the general verdict of the jury, which motions were granted by the learned trial judge, and judgments notwithstanding were entered accordingly. From these judgments the respective plaintiffs now- appeal.
Our labors upon these cases have been materially lightened by the extremely able and careful briefs of counsel for -both parties. Counsel for respondent have displayed in their briefs much- learn*509ing and industry upon the question of whether the doctrine of the so-called “turntable” or “attractive nuisance” cases should be here-applied. That general proposition was considered with great care-by this court upon the former appeal, and was determined. adversely to the contention of the respondent, and by that decision the law of these cases in that respect was established. From that, decision we are not disposed at the present time or under the circumstances of these cases to recede.
There remains, therefore, for our consideration, only the-question of whether or not the appellants at the trial brought' themselves substantially within the allegations of their complaints. We have examined' the record with care, and are convinced that this inquiry must be answered in the affirmative. That such waslikéwise the opinion of the learned trial judge at the conclusion of all the testimony is evidenced by his denial at that time of defendant's motions for directed verdict.
The only substantial distinction between the allegations of the-complaints and the evidence developed at the trial is that while-the death of the children occurred, as alleged in the complaints,, from the caving of the walls of the excavation or gravel pit, the same was contributed to, and as .found by the jury, proximately caused by, some shallow excavations in said wall which the-children in their play had made therein, and in which they were at the time of the accident. It was apparently upon the strength of this special finding that the learned trial judge granted defendant’s-motions for judgment notwithstanding the general verdicts. This was error. If it be once admitted, as determined by this court on the former appeal, that the doctrine, of the “attractive nuisance” cases is applicable to the situation of the instant cases, then it is. entirely immaterial upon the question of liability whether the children at their play were merely sitting quietly at the foot of the bank or wall, and it casually slipped and fell upon them, or-whether said caving of the bank was contributed to or proximately caused by the children excavating therein in the course of their play, as children might readily do. In any case where this doctrine has application at all, the fact that an affirmative act of the child in the course of his play, after he reached the dangerous- and attractive premises or machinery, contributed to or was the proximate cause of the injury, cannot avoid liability. In practi*510ca'lly all of these cases the child after reaching the premises acted affirmatively, and without such affirmative action the injury would not have-happened.
Perhaps the foundation case for the doctrine herein involved, in the United States, is the decision of the Supreme Court in Railway Co. v. Stout (1873), 17 Wall. 657, 21 L. ed. 745. In that case the children in their play went to the unlocked turntable, and two of the boys began to turn .the same, and in attempting to. get upon it the foot of the plaintiff was caught between the end of a rail and the revolving turntable and crushed. It was the affirmative act of the children in their play in turning the turntable, after they arrived at the premises, which contributed to and was the proximate cause of the injury. In the instant case the making of the excavations by the children in their play is neither more nor less than analogous to the turning of the turntable in the Stout Case.
The judgments appealed from are reversed, and the cases are remanded, with instructions to enter judgment in each case in favor of the plaintiff and against the defendant upon the respective general verdicts of the jury.