delivered the opinion of the court:
Appellant invokes the doctrine of attractive nuisances, and refers us to a number of cases where that doctrine has been applied to uphold recoveries for injuries to children of tender years. All other requirements of the law essential to recovery being satisfied, these cases fall into two classes:
First—Where the injury results from some dangerous element a part of, or inseparably connected with, the alluring thing or device, as in the turn-table cases, the leading one of which is Railroad Co. v. Stout, 17 Wall. 657.
Second—Where the attractive device or thing is so located or situated that in yielding to its allurement the child, without such intervention of another element as breaks the relation of cause and effect, is brought directly in contact with danger from some independent source which occasions the injury, as in Kansas City, Ft. Scott and Memphis Railroad Co. v. Matson, 68 Kan. 815.
There a railroad company maintained a pile of lumber upon ground of a loose and spongy character in immediate proximity to its tracks within a thickly populated district. The boy who was hurt was but five years of age, and was upon the top of this pile, from whence he was shaken or thrown by the jar occasioned by a passing train. He fell under the wheels and was thereby injured.
In the case at bar appellant was attracted by the clay piled along the railroad track. He went upon the pile and was there at play and while so engaged was in no danger. As the train passed, the boy, no longer absorbed by the attractions of the bank of earth, began touching, playing with and running alongside the slowly-moving cars, and finally fell under them, sustaining the injury complained of.
Here an element intervened between the acts induced by the allurements of the clay pile and the injury, viz., the movements of the boy in placing himself in contact with and in running alongside the cars, and this case is thus distinguished from Kansas City, Ft. Scott and Memphis Railroad Co. v. Matson, supra, where it was pointed out that the contention of the railroad company that the boy was hurt while attempting to climb upon the train was not warranted by the evidence.
We are -not unmindful that when appellant fell he slipped down the side or slope of the clay pile to the tracks, but his counsel say, in criticising the opinion of the Appellate Court: “Our contention was not that the railroad was negligent in not making this switch yard a safe playground, but the negligence consisted of in leaving the attraction there for six weeks,-—of inviting and enticing the appellant there into this place of danger.”
Any question of negligence which might possibly otherwise be predicated upon the fact that the clay was not so leveled down or was not placed at such distance from the tracks as to make or leave the approach to the rails over smooth and level ground has therefore been eliminated from the controversy.
The proximate cause of the injury in this case was not the pile of clay, nor any danger with which the boy was brought in contact while gratifying any curiosity or desire excited by that pile. The injury was proximately caused by the movements of appellant in placing his hands upon and in running alongside the cars.
Counsel urge that the question of what is proximate cause is one of fact for the jury. That is true where there is evidence tending to show that the negligence charged was the proximate cause, but whether there is any such evidence is a question of law.
Upon the evidence before it -the court properly directed a verdict.
Error is assigned upon the exclusion of an ordinance offered in support of the second count of the declaration. Attorneys for appellant say they do not desire to discuss the question thereby raised, except to cite the case of Hayes v. Michigan Central Railroad Co. 111 U. S. 228. We have examined that authority and conclude there was no error in excluding the offered proof.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.