A boy of eight years, by climbing to the topmost girder of a
municipal bridge used for conveying a street across a railroad, and
thence up a latticed tower, touched a live electric wire
twenty-nine feet above the street, and was injured. Held,
upon the circumstances stated in the opinion, that the railroad
company (which maintained the wires and the bridge framework) could
not be deemed liable upon the theory of license or invitation. P.
260 U. S. 143
United Zinc Co. v. Britt, 258 U.
261 F. 419 reversed.
Certiorari to judgments of the circuit court of appeals
affirming judgments in the district court against the petitioner in
two actions for personal injuries.
Page 260 U. S. 143
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Since 1908, 149th Street, New York City, has been carried over
and across the tracks of the New York, New Haven & Hartford
Railroad by a public municipal steel truss bridge of standard
construction. The bridge is fifty-four feet wide, 270 feet long,
and is formed of posts, beams, girders, etc., connected and
strengthened by trellis or lattice work. The top girders, or beams,
are twenty-three feet above the street. The local law imposes upon
the railroad the duty of maintaining the framework; the
municipality is required to keep the roadway in repair.
Fastened to the top girder at the end of the bridge are two
upright steel lattice towers, posts, or struts. Cross-arms,
attached to these six feet above their bases, support bare wires
carrying electric current used for operating trains. The nearest
wire is nineteen inches from the strut.
Page 260 U. S. 144
With considerable difficulty and some danger, active boys can
climb to the highest parts of the bridge. They did often climb upon
it; some reached the struts. They were frequently chased away by a
policeman and the railroad guard, and seem generally to have
understood that to play there was forbidden; when a officer came in
sight, they kept off. At each corner of the bridge, there was a
notice board displaying the words: "Live Wires. Danger. Keep
In June, 1916, the plaintiff David Fruchter, 8 years old, by
using the trellis work, climbed from the street to the top of the
bridge in quest of a bird's nest. He then saw a bird on the wire
above, and, to catch it, climbed up the strut and reached out; the
bird flew away, his hand touched the wire, and severe injuries
resulted. He sued for damages, and the father also seeks to recover
for loss of services and expenses incurred. The causes were tried
together. The circuit court of appeals affirmed judgments for the
plaintiffs, February, 1921. 271 F. 419.
At the time of the accident, the boy was attending school.
Whether he could then read the warning words upon the notice boards
is left in doubt; upon the witness stand, he both affirmed and
denied that he could. He further stated that, before climbing upon
the bridge, he looked to see whether a policeman was present, and
admitted that, if one had been there, he would not have gone
The court below accepted the theory that the jury could have
found the structure was well known to be both dangerous and
attractive to children, and that failure to supply proper guards,
human or mechanical, constituted negligence within the doctrine of
Railroad Co. v.
17 Wall. 657, and Union Pacific Railway
Co. v. McDonald, 152 U. S. 262
In United Zinc & Chemical Co. v. Britt,
258 U. S. 268
pointed out the theory upon which liability may
Page 260 U. S. 145
exist for injuries suffered by an infant, although the
circumstances would give no cause of action to an adult:
"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. . . . There can be no
general duty on the part of a landowner 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."
Considering the peculiar circumstances of the present cause, it
is clear that, if the plaintiff had been an adult, he could not
recover, and we are unable to find any sufficient evidence from
which the jury could have properly concluded that the railroad
company, either directly or by implication, invited or licensed him
to climb upon the strut to a point from which he could touch the
bare wire 30 feet above the street. The motion for an instructed
verdict should have been granted.
The judgment of the court below is reversed, and the cause
remanded to the district court for further proceedings in
conformity with this opinion.