1. A landowner owes no general duty to keep his land safe for
children of tender years, or even free from hidden danger, if he
has not directly or by implication invited them there. P.
258 U. S.
2. A road is not an invitation to leave it elsewhere than at its
end. P. 258 U. S.
3. Defendant owned a tract, on the outskirts of a town, on which
was an open and abandoned cellar wherein water had accumulated,
clear in appearance but dangerously poisoned with chemicals
resulting from manufacturing operations formerly conducted there by
the defendant. A traveled way passed within 120 feet of the pool
and paths crossed the tract. Children came upon the land, entered
the water, were poisoned and died. Defendant knew the condition of
the water, but the pool, if visible to the children without
trespass, was not proven to have caused their entry, nor were
children in the habit of going to it. Held
that no license
or invitation could be implied, and that the defendant was not
liable. P. 258 U. S.
264 F. 75 reversed.
Certiorari to a judgment of the circuit court of appeals, which
affirmed a judgment against the above petitioner in an action
brought in the District Court for Kansas, by the above respondents,
to recover damages for the death of their two children.
Kans.Gen.Stats., 1915, §§ 7323, 7324.
Page 258 U. S. 274
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought by the respondents against the petitioner
to recover for the death of two children, sons of the respondents.
The facts that, for the purposes of decision, we shall assume to
have been proved are these. The petitioner owned a tract of about
twenty acres in the outskirts of the town of Iola, Kansas. Formerly
it had there a plant for the making of sulphuric acid and zinc
spelter. In 1910, it tore the buildings down, but left a basement
and cellar in which in July, 1916, water was accumulated, clear in
appearance but in fact dangerously poisoned by sulphuric acid and
zinc sulphate that had come in one way or another from the
petitioner's works, as the petitioner knew. The respondents had
been traveling and encamped at some distance from this place. A
traveled way passed within 120 or 100 feet of it. On July 27, 1916,
the children, who were eight and eleven years old, came upon the
petitioner's land, went into the water, were poisoned and died. The
petitioner saved the question whether it could be held liable. At
the trial, the judge instructed the jury that, if the water looked
clear but in fact was poisonous and thus the children were allured
to it, the petitioner was liable. The respondents got a verdict and
judgment, which was affirmed by the circuit court of appeals. 264
Union Pacific Ry. Co. v. McDonald, 152 U.
, and kindred cases were relied upon as leading to
the result, and perhaps there is language in that and in
Sioux City & Pacific Ry.
Co. v. Stout,
17 Wall. 657, that might seem to
justify it, but the doctrine needs very careful statement not to
make an unjust and impracticable requirement. If the children had
been adults, they would have had no case.
Page 258 U. S. 275
They would have been trespassers, and the owner of the land
would have owed no duty to remove even hidden danger; it would have
been entitled to assume that they would obey the law and not
trespass. The liability for spring guns and mantraps arises from
the fact that the defendant has not rested on that assumption, but,
on the contrary, has expected the trespasser and prepared and
injury that is no more justified than if he had held the gun and
fired it. Chenery v. Fitchburg R. Co.,
160 Mass, 211, 213.
Infants have no greater right to go upon other people's land than
adults, and the mere fact that they are infants imposes no duty
upon landowners to expect them and to prepare for their safety. On
the other hand, the duty of one who invites another upon his land
not to lead him into a trap is well settled, and while it is very
plain that temptation is not invitation, it may be held that
knowingly to establish and expose, unfenced, to children of an age
when they follow a bait as mechanically as a fish, something that
is certain to attract them has the legal effect of an invitation to
them although not to an adult. But the principle, if accepted must
be very cautiously applied.
In Railroad Co. v.
17 Wall. 657, the well known case of a boy
injured on a turntable, it appeared that children had played there
before to the knowledge of employees of the railroad, and in view
of that fact and the situation of the turntable near a road without
visible separation, it seems to have been assumed without much
discussion that the railroad owed a duty to the boy. Perhaps this
was as strong a case as would be likely to occur of maintaining a
known temptation, where temptation takes the place of invitation. A
license was implied, and liability for a danger not manifest to a
child was declared in the very similar case of Cooke v. Midland
Great Western Ry. of Ireland,
, A.C. 229.
In the case at bar it is at least doubtful whether the water
could be seen from any place where the children lawfully
Page 258 U. S. 276
were, and there is no evidence that it was what led them to
enter the land. But that is necessary to start the supposed duty.
There can be no general duty on the part of a land owner to keep
his land safe for children, or even free from hidden dangers, if he
has not directly or by implication invited or licensed them to come
there. The difficulties in the way of implying a license are
adverted to in Chenery v. Fitchburg R. Co.,
160 Mass. 211,
212, but need not be considered here. It does not appear that
children were in the habit of going to the place, so that
foundation also fails.
Union Pacific Ry. Co. v. McDonald, 152 U.
, is less in point. There, a boy was burned by
falling into burning coal slack close by the side of a path on
which he was running homeward from other boys who had frightened
him. It hardly appears that he was a trespasser, and the path
suggests an invitation; at all events, boys habitually resorted to
the place where he was. Also, the defendant was under a statutory
duty to fence the place sufficiently to keep out cattle. The
decision is very far from establishing that the petitioner is
liable for poisoned water not bordering a road, not shown to have
been the inducement that led the children to trespass, if, in any
event, the law would deem it sufficient to excuse their going
there, and not shown to have been the indirect inducement because
known to the children to be frequented by others. It is suggested
that the roads across the place were invitations. A road is not an
invitation to leave it elsewhere than at its end.
MR. JUSTICE CLARKE, dissenting.
The courts of our country have sharply divided as to the
principles of law applicable to "attractive nuisance" cases, of
which this one is typical.
Page 258 U. S. 277
At the head of one group, from 1873 until the decision of today,
has stood the Supreme Court of the United States, applying what has
been designated as the "humane" doctrine. Quite distinctly, the
courts of Massachusetts have stood at the head of the other group,
applying what has been designated as a "hard doctrine" -- the
"Draconian doctrine." Thompson on Negligence, vol. I, §§ 1027 to
1054, inclusive, especially §§ 1027, 1047 and 1048. Cooley on Torts
(3d ed.) p. 1269 et seq.
In 1873, in Railroad Co. v.
17 Wall. 657, this Court, in a turntable
case, in a unanimous decision, strongly approved the doctrine that
he who places upon his land, where children of tender years are
likely to go, a construction or agency, in its nature attractive
and therefore a temptation to such children, is culpably negligent
if he does not take reasonable care to keep them away, or to see
that such dangerous thing is so guarded that they will not be
injured by it when following the instincts and impulses of
childhood, of which all mankind has notice. The Court also held
that, where the facts are such that different minds may honestly
draw different conclusions from them, the case should go to the
Twenty years later, the principle of this Stout
was elaborately reexamined and unreservedly affirmed, again in a
unanimous decision in Union Pacific Railway Co. v.
McDonald, 152 U. S. 262
each of these cases, the contention that a child of tender years
must be held to the same understanding of the law with respect to
property rights as an adult, and that therefore, under the
circumstances of each, the child injured was a trespasser, was
considered and emphatically rejected. The attractiveness of the
unguarded construction or agency -- the temptation of it to
children -- is an invitation to enter the premises that purges
their technical trespass. These have been regarded as leading cases
on the subject for now almost fifty years, and have been widely
followed by state and federal
Page 258 U. S. 278
courts -- by the latter so recently as Heller v. New York,
N.H. & H. R. Co.,
265 Fed.192, and American Ry.
Express Co. v. Crabtree,
271 F. 287.
The dimensions of the pool of poisoned water were about 20 x 45
feet. It was 2 1/2 to 3 feet deep in part and in part 10 or more
feet deep. A photograph in the record gives it the appearance of an
attractive swimming pool, with brick sides and the water coming
nearly to the top of the wall. The water is described by the
witnesses as appearing to be clear and pure, and, on the hot summer
day on which the children perished, attractively cool.
This pool is indefinitely located within a tract of land about
1,000 feet wide by 1,200 feet long, about which there had not been
any fence whatever for many years, and there was no sign or warning
of any kind indicating the dangerous character of the water in the
pool. There were several paths across the lot, a highway ran within
100 to 120 feet of the pool, and a railway track was not far away.
The land was immediately adjacent to a city of about 10,000
inhabitants, with dwelling houses not far distant from it. The
testimony shows that not only the two boys who perished had been
attracted to the pool at the time, but that there were two or three
other children with them, whose cries attracted men who were
passing near by, who, by getting into the water, succeeded in
recovering the dead body of one child and in rescuing the other in
such condition that, after lingering for a day or a two, he died.
The evidence shows that the water in the pool was highly
impregnated with sulphuric acid and zinc sulphate, which certainly
caused the death of the children, and that the men who rescued the
boys suffered seriously, one of them for as much as two weeks, from
the effects of the poisoned water.
The case was given to the jury in a clear and comprehensive
charge, and the judgment of the district court upon the verdict was
affirmed by the circuit court of
Page 258 U. S. 279
appeals. The court charged the jury that, if the water in the
pool was not poisonous and if the boys were simply drowned, there
could be no recovery, but that, if it was found that the defendant
knew or in the exercise of ordinary care should have known that the
water was impregnated with poison, that children were likely to go
to its vicinity, that it was in appearance clear and pure and
attractive to young children as a place for bathing, and that the
death of the children was caused by its alluring appearance and by
its poisonous character, and because no protection or warning was
given against it, the case came within the principle of the
"attractive nuisance" or "turntable" cases, and recovery would be
This was as favorable a view of the federal law, as it has been
until today, as the petitioner deserved. The Supreme Court of
Illinois, on the authority of the Stout
case, held a city
liable for the death of a child drowned in a similar pool of water
not poisoned. City of Pekin v. McMahon,
151 Ill. 141.
The facts, as stated, make it very clear that, in the view most
unfavorable to the plaintiffs below, there might be a difference of
opinion between candid men as to whether the pool was so located
that the owners of the land should have anticipated that children
might frequent its vicinity, whether its appearance and character
rendered it attractive to childish instincts so as to make it a
temptation to children of tender years, and whether therefore it
was culpable negligence to maintain it in that location,
unprotected and without warning as to its poisonous condition. This
being true, the case would seem to be one clearly for a jury, under
the ruling in the Stout
Believing as I do that the doctrine of the Stout
cases, giving weight to, and making allowance, as
they do, for, the instincts and habitual conduct of children of
tender years, is a sound doctrine, calculated to
Page 258 U. S. 280
make men more reasonably considerate of the safely of the
children of their neighbors, than will the harsh rule which makes
trespassers of little children which the court is now substituting
for it, I cannot share in setting aside the verdict of the jury in
this case, approved by the judgments of two courts, upon what is
plainly a disputed question of fact and in thereby overruling two
decisions which have been accepted as leading authorities for half
a century, and I therefore dissent from the judgment and opinion of
THE CHIEF JUSTICE and MR. JUSTICE DAY concur in this