(dissenting). The judgment rendered in this action was in favor of an infant, who, at the time of the injury for which he sued, was seven years of age. The defendant’s construction gang was engaged in stringing a trolley wire, using a block or pulley, through which a rope ran, when the wire was being drawn forward, the power being applied by a team attached to the end of the rope, the team, at the time of the accident, being some distance from the block. The child meddled with the rope, and his hand was drawn into the block and crushed. Three important questions are raised:
(1) Was it negligence on the part of the defendant to use this apparatus without stationing a guard at the block to prevent intermeddling by children ?
(2) Was the child a trespasser in meddling with the ■ rope and block, and therefore not entitled to recover ?
(3) Was the child guilty of contributory negligence ?
It is contended by the defendant’s counsel, that the undisputed testimony entitled him to a verdict by direction of the court upon each and all of said grounds. We understand that the defendant’s right to use the appliances referred to on the highway is not disputed, and, on the other hand, no question seems to have been made over the *250plaintiff’s right to use the street for a place to play, and the controversy is narrowed to the question raised in the “Turntable Cases,” viz., must one using the highway for lawful purposes take into consideration the propensities of mankind to meddle, and exercise increased diligence to prevent injury to such intermeddlers with his property ? There is nothing in the record to indicate that the appliance would have injured any one but a meddler, and an adult plaintiff who should have done what this plaintiff did, would, if injured, have been denied relief, upon the ground that he was a trespasser. This proposition is elementary and heeds no amplification. At the furthest, only ordinary care is due a trespasser.
The plaintiff’s counsel contend, however, that the fact that this was a place frequented by children (as all city streets are) made it a duty of the defendant to take extraordinary care to prevent, not an injury from the appliance itself, or its proper use, but an injury from intermeddling with it, by the injured party, and, as usual in such cases, the claim is rested upon the theory that, the appliance being one naturally attractive to children, there was an implied license to them to meddle with it, or, if not that, at least 'there was a duty on the part of the owner to station a guard to prevent intermeddling by children. It may be safely conceded that children would be likely to be attracted by any object that is being used, or that had been left in the highway, but we should be slow to conclude that the multitude of things that are so used or left in the highway must always be guarded. The time will probably never come when children will cease climbing upon wagons, catching upon bob sleds, and examining and handling any and all machinery which they can approach, or getting dangerously near to horses and other animals left in the street. It has never been the rule, however, that a driver cannot leave his team, or must reduce its pace to a walk, lest some boy get hurt through intermeddling with it, and it would be a great hardship if owners were compelled to forego the leaving of a horse at the *251curb, or provide a guard. Yet we are asked to say that this defendant should have stationed a guard to perform the duty which the parent owes. That there are some cases from which such a claim is a logical deduction cannot be denied, and of these the “ Turntable Gases,” so called, are the principal ones. Eliminate those cases, and a few others based upon them, and there will be little support for the claim left. This subject has been discussed in Byan v. Towar, 128 Mich. 463 (55 L. R. A. 310), where we endeavored to show the fallacy of the reasoning of the “ Turntable Cases,” and distinctly declined to follow the rule laid down in them. We there cited several cases in which courts of the older States had refused to follow the rule, and since that decision was made several others have done so.
Counsel, however, urge that we recognize an alleged distinction between Ryan v. Towar and the present case. They say that Ryan v. Towar was a case where the injury occurred on private premises, and not upon a highway, and they also insist that the fact that this or other boys had been seen in the vicinity by defendant’s servants made vigilance a duty. We are of the opinion that one who meddles with the appliances of another in the highway is a trespasser as much as one who does it elsewhere, and, if an injury results by reason of the trespass, he is remediless in either case. That is the doctrine in this State under repeated decisions, most of which will be found cited in the Towar Case. Hargreaves v. Deacon, 25 Mich. 1, announces the doctrine as to real estate, where Mr. Justice Campbell said:
“If, for example, a grown person coming upon the premises simply by the permission of the occupants had fallen into this cistern without any negligence, by stepping where there was no apparent danger, he would in law have stood just where this child did. The injury might have happened, as in Fisher v. Thirkell, 21 Mich. 1, from the insecurity of an apparently safe covering. We have searched diligently, and perhaps a little anxiously, to find legal support for a distinction, but there is no *252foundation for any in law, and we think there is none in any reason which should govern the action of courts of justice.”
See Grunst v. Railway Co., 109 Mich. 345, where the language of Mr. Justice Campbell is quoted with approval by Mr. Justice Montgomery. Bledsoe v. Railway Co., 126 Mich. 315; Formall v. Standard Oil Co., 127 Mich. 496. These cases and others sustain the doctrine that a trespasser cannot require diligence upon the part of the person upon whose property he trespasses. In Kaumeier v. Railway Co., 116 Mich. 307 (40 L. R. A. 385), we applied the rule to a case where a car was left on a switch, without blocking,- in a public highway, and held that the plaintiff was a trespasser in attempting to use the car.
It is unnecessary to hold in this cause that in no case can a trespasser recover for an injury, and there may be cases where the presence and conduct of children, known to a defendant, may call for a warning and perhaps more. Upon that question we express no opinion further than to say that the evidence in this case does not warrant such a conclusion. There is no evidence of negligence of any duty owing to this plaintiff. In Holbrook v. Aldrich, 168 Mass. 15, it was said by Mr. Justice Holmes in a case where a child, while in a shop with her father who was making a purchase, meddled with, and was hurt in, a coffee mill therein:
‘.‘We are of opinion that the direction was right. If the decision were to be put on the narrowest possible ground, it might be said that, at the moment of the accident, the plaintiff was not within the scope of the defendants’ implied invitation, and therefore was entitled to no protection against such possibilities of harm to herself. But even if she had been buying coffee, we should regard the rule as the same. The defendants’ invitation in that case would have bound them to due care for the safety of those walking in the neighborhood while simply moving about. But it would not have bound them to look out for, or to prevent, wrongful acts, on the ground *253that the acts, if done, might hurt the actor. Temptation is not always invitation. As the common law is understood by the most competent authorities, it does not excuse a trespass because there is a temptation to commit it, or hold property owners bound to contemplate the infraction of property rights because the .temptation to untrained minds to infringe them might have been foreseen. McEachern v. Railroad Co., 150 Mass. 515; Daniels v. Railroad Co., 154 Mass. 349 (13 L. R. A. 248); Gay v. Railway Co., 159 Mass. 238 (21 L. R. A. 448). The'* case is similar in principle to McGuiness v. Butler, 159 Mass. 233, and to Mangan v. Atterton, L. R. 1 Exch. 239, which, notwithstanding the observations in Clark v. Chambers, L. R. 3 Q. B. Div. 327, has been cited in this Commonwealth repeatedly as unquestioned law. See, also, Hughes v. Macfie, 2 Hurl. & C. 744. In Moynihan v. Whidden, 143 Mass. 287, which would have to yield to McGuiness v. Butler, if there were a conflict, it seems to have been assumed that the plaintiff’s touching the rope was not tortious.”
See, also, Friedman v. Snare & Triest Co., 71 N. J. Law, 605 (70 L. R. A. 147). In this case a girl playing upon iron girders carelessly piled was crushed by their fall. The court said:
“And further, an individual member of the public, if specially damnified by the nuisance while in the exercise of his rights in the street, may maintain' a private action. But this refers only to parties injured while using the street as a street, and not to those whose injuries arise from their attempted use of the obstructing materials for their own purposes, whether of pleasure, convenience, or profit. For the building materials themselves do not in any sense become public property by being allowed to remain in the street. And neither a traveler, nor an idler, nor even a playful child, can gain rights against the landowner, or against his agent who stands in his rights,, by using such building materials as a resting place or playground. In the absence of circumstances denoting invitation, one thus using the private property of another for his own purposes may be either a licensee or a mere trespasser, depending upon circumstances. In neither case is there any duty incumbent upon the proprietor to make his property safe for such úse. Aside from the notion that temptation is equivalent to invitation, with which we cannot *254concur, there is nothing in the mere existence of building materials as an obstruction in the street that denotes an invitation to the passerby of to the idler or playful child to use the materials for his own purposes. The doctrine of invitation relates to the entry upon, or user of, lands. The very fact that materials piled upon the ground constitute a hindrance to travel negatives the idea of invitation in the ordinary sense.
“The case for the plaintiff rests upon the theory that since these girders were so arranged as to be attractive to children, and since the injured child, with her companions, was using them as a place for play, or as a resting place during or after play, the proprietors of the premises, or the defendants, upon whom, as independent contractors, the matter had been devolved, owed a duty to the children to so arrange the girders as to render them safe for their use. With this view we do not agree.
“No doubt, where a duty exists to take care with respect to the safety of children of tender years, their very age must be taken into account, so that what might be reasonable care with respect to the safety of adults, who are capable to some extent of looking out for themselves, might not be reasonable care with respect to children. But in the present case the very question is whether any duty existed, and we are not able to see that the age of the child is pertinent upon this inquiry. That the party injured in this case was less than five years of age did not at all tend to give her any property interest or right of user in the defendant’s girders. Whether she used them as licensee or as trespasser, in either case there was no duty upon the owner to exercise active care with respect to her safety.
“The fact that a dangerous place or object is attractive to children of tender years is legitimately significant where the question of their own want of care is raised. But there are fundamental, and, as we think, insuperable, difficulties standing in the way of adopting the rule that the mere attractiveness of private property gives to the person attracted rights against the owner. One difficulty is that the rule pro tanto ignores the distinction between meum and teum. And on what principle is it to be limited to cases of trespass ? Why does it not apply equally to the conversion of personal property, or even to larceny ? If those who temporarily and for limited purposes convert the private property of their neighbors to their own use *255are to be not only excused, but justified, where by reason of their tender years they were tempted to the trespass, and at the same time are to have rights of action against the true owners for the failure to exercise care about rendering the property suitable for their use, why may not those who, under similar temptation, convert the property of others wholly to their own use be likewise justified, and, instead of a right of action, gain a complete title to the property by simply appropriating it ?
‘ ‘Another and a very practical difficulty that confronts the attempt to lay down any legal rule that depends for its limitatons upon the attractiveness of objects to children of tender years lies in the extreme improbability that any man, however prudent, will be able to foresee what may or may not be attractive to children. Certainly, if a pile of steel girders, each weighing 1,000 pounds, deposited in the street as the girders in the present case were deposited, must be foreseen by a prudent man to be attractive to children, we are unable to say what object may not be thus attractive.
“ These are the views which we entertain after a care- . ful consideration of the question at issue in this case, after most learned and able arguments by counsel on both sides, and a review of numerous reported decisions touching more or less closely upon the point.”
This case points out the distinction of the question of attractiveness, as bearing upon defendant’s negligence, and the plaintiff’s contributory negligence, which has been lost sight of in many cases. The learned judge continues :
“The rule laid down in these cases is, as we think, wholly inconsistent with the asserted liability of the present defendant. That rule draws a clear distinction between temptation and invitation, and is to the effect that those who enter upon private property for their own purposes without invitation, but as trespassers or licensees, do so at their own peril, so far as any right on their part- to call for active care on the part of the property owner for their welfare is concerned, and that although the injured party be an infant of tender years, and for that reason less able to care for its own safety, and more susceptible to the attractions that private property affords for purposes of play, this circumstance does not create a duty *256where none otherwise would exist. It is true that, in our Turntable Cases, the attractive objects were not within the limits of the public highway; but it is likewise true that, in the present case, as already pointed out, while the building materials were within the street, they were deposited there as private property for lawful purposes by the defendant, in the exercise of the landowner’s rights in that behalf. And, although the representatives of the public might complain of the occupancy of a portion of the street by building materials, if unreasonably prolonged, or if the materials were insecurely placed, and although any one lawfully using the street as such might have an action if specially injured by collision with the materials, or by their fall if they were negligently left in an insecure position, we cannot see that these circumstances confer rights upon one who is using the building materials as the injured child in the present case was doing.”
A late case, written by our Brother Ostrander, supports the conclusion reached in this case. See Stark v. Lighting Co., 141 Mich. 575 ( 1 L. R. A. [N. S.] 822).
. It is unnecessary to discuss the question of contributory negligence.
The. judgment should be reversed, with costs of both courts, and no new trial ordered.
Grant, J., concurred with Hooker, J.