(dissenting).
The majority opinion is so divergent from my idea of the law and the question is of such importance, that I feel impelled to dissent.
As I read the majority opinion it does not hold the switchyard to be an attractive nuisance. Nor does it hold the company was guilty of negligence in the manner in which it switched its cars by gravity. Rather it adjudges the switchyard is a dangerous place and it was the duty of the company to fence this large yard on its east side because for some reason it had fenced same on the west side; or at least, it was the company’s duty to put a fence or barrier at the end of Rowan Street because some 40 children lived on that street within a square of the switchyard. Yet, the majority opinion cites two sections of Chapter 256 of KRS to the effect that a railroad company is not required to fence its right of way in a town or city or across a private pathway. Appellee’s brief cites many authorites to the effect that there is no duty on the company to fence its switchyard, among them being our case of Jackson’s Adm’r v. Louisville & N. R. Co., 46 S.W. 5, 20 Ky.Law Rep. 30,9.
Rowan Street “dead ends” some 15 or 20 feet from the company’s right of way. Patently, a barrier the width of Rowan Street and even constructed so children could not get through it would not be effective as children could, and would, walk around the barrier. There could be but one way to protect this large switchyard from trespassing children living on Rowan Street, and that would be to fence the entire east side of it. But as just stated, the law imposes no such duty on the railroad.
The record does- not show children customarily played in the switchyard. On the contrary, it shows that when they were seen in it they were run out. The record shows the company employed 9 patrolmen, 3 on each shift, to keep trespassers out. The fact that workmen parked their cars in the' “dead end” of Rowan Street and walked across the switchyard is no evidence that the company permitted children, and especially children 2½ years of age, to walk across the switchyard. Certainly, the company could not anticipate a tottling child of 2½ years would stray onto its property following a dog.
It is rare in this day and time that a child of such tender years ever appears alone on a public street or sidewalk, and it is difficult for me to conceive that the company owed a duty to protect its switchyard from trespassing children of such an age where it reasonably could not be anticipated a child so young would be on the street unattended by a person of discreet years.
Although this child was very young, yet it was a trespasser on the company’s property. As we said in Jones v. L. & N. R. Co., 297 Ky. 197, 179 S.W.2d 874, 877, 152 A.L.R. 1259: “Trespassing children occupy the same attitude as a trespassing adult, except for the special liability imposed under the attractive nuisance theory, and the rule is that the owner is only liable for negligence after discovering his peril.” See 65 C.J.S., Negligence, § 27, p. 450. As just stated, the company was not required to anticipate the presence of this little boy in its switch-yard. 75 C.J.S., Railroads, § 900, p. 280; Louisville & N. R. Co. v. Arrowood’s Adm’r, 280 Ky. 658, 134 S.W.2d 224. Nor was the company negligent in using “gravity switching” in its own yard. Louisville & N. R. Co. v. Hocker, 111 Ky. 707, 64 S.W. 638 (petition for rehearing overruled 111 Ky. 707, 65 S.W.2d 119). Hence, there can be no liability upon the company unless its switchyard is an attractive nuisance, and the majority opinion readily admits it is not.
The facts in the instant case cannot be distinguished from McClelland v. Baltimore *828& O. C. T. R. Co., 7 Cir., 123 F.2d 734, 738. There, the court said whether any duty of lookout or warning was owed the plaintiff (a child eleven years old) was a question of law for the court, while the question of whether such duty, if any, was properly performed would be a question of fact for the jury. .The court there said, “That being the case, the trial court should have ruled as a matter of law that appellant had violated no duty with respect to appellee, and should have directed a verdict in appellant’s favor. We think the record clearly shows that it would impose' an unreasonable burden upon appellant to require it to employ sufficient patrolmen or additional crew members to provide adequately against such accidents as occurred here.” Also, the instant case is much like Smalley v. Rio Grande Western Ry. Co., 34 Utah 423, 98 P. 311, and Radenhausen v. Chicago R. I. & P. Ry. Co., 205 Iowa 547, 218 N.W. 316, in neither of which was the child allowed to recover.
Also, I see much similarity between the case at bar and our own casé of Jarvis v. Howard, 310 Ky. 38, 219 S.W.2d 958, where a child was injured in jumping from a coal ramp to a railroad car, and we held the owner of the ramp was not liable to the injured child as he had used ordinary care to prevent children from playing thereon, which is all that is required of the owner or the operator of an attractive nuisance. If this is the extent of the duty required of the owner of an attractive nuisance to protect children, certainly the owner of a dangerous railroad yard would have no higher or greater duty. Here, the railroad employed 9 men to patrol these yards and as there is no evidence it had any knowledge of 2½ year old children straying into its yard, it can hardly be said the company did not use ordinary care to keep children from wandering on its tracks.
Without taking the time and space necessary to discuss the authorities cited in the majority opinion, it seems to me it will suffice to say that none of them have any particular application to the case at bar because none of them deals with a child so young that it could not be anticipated by a reasonable person such a child would be on a street or sidewalk unattended, much less that it would be alone in a metropolitan switchyard where 1000 cars a day are moved. The law imposed no duty on the company to be a nursemaid to all small children on Rowan Street, who, if they are not watched and attended by parents or some person of mature years having them in charge, might in their guilelessness ramble into this switchyard.
Had this unfortunate child aimlessly walked into the switchyard, stumbled over a cross tie and struck its head on a steel rail, inflicting a severe and permanent brain injury, would the company have been liable for not protecting its yard against such trespassing child? I think not, because no reasonable person would anticipate a child of that age would be turned loose alone or subjected to such indifferent attention as to let it escape parental care when it lived only a few feet from this large and busy switchyard.
I can see no negligence on the part of the company which caused this distressing accident to this unfortunate little boy and I feel the trial judge correctly directed a verdict for the company. For this reason I respectfully dissent, and am authorized to say STEWART, C. J., and CAMMACK, J.,.join me