the rule "That a railroad company might be liable to trespassers for injuries resulting from its failure to construct, locate, manage, and maintain its turntable with that care and attention to prevent accidents which prudent and careful men ordinarily bestow;" and it held that while "the evidence was not strong, and the negligence was slight," the Court was "not able to say that there was not evidence sufficient to justify the verdict," and that the charge was sound.

Four cases are cited as precedents for the proposition that a trespasser is entitled to demand from a landowner ordinary care in the use, condition, and maintenance of structures upon his premises. The first was Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29, [ante, No. 458]. In that case it was held that a child who, seeing a horse and cart unfastened in the street, got into the cart and was injured, could maintain an action against the owner. The case seems to have gone off upon the questions of negligence and contributory negligence, and, no question of trespass being discussed, the inference is perhaps a proper one that it was found by the jury that the owner was negligent in leaving his horse loose in the public street, and that the child had shown as much prudence as could be expected of him. Not only was there apparently no consideration of this question, but later English cases are in conflict with that case, if it necessarily involved it. . . The last case cited was Bird v. Holbrook, 4 Bing. 628, [ante, No. 713]. This was an action brought by a trespasser who was shot by a spring gun set for the purpose, and is clearly not in point. There was a wanton, intentional act, intended to punish trespassing with death, meriting punishment as an attempt at homicide. It is chiefly valuable in this connection as showing the difficulty found in the attempt to support Railroad Co. v. Stout by precedents.

...

The enunciation by the highest tribunal in the country of the rule that a landowner owes a duty of care towards a trespasser was sure to be followed by other courts. Among the earliest of these is Keefe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393). This was a turntable case. . . In Kansas the doctrine was applied in a case of a turntable located in the midst of an open prairie, and a boy 12 years of age. Kansas Central R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. Rep. 203). Here we have the doctrine of the Turntable Cases carried to its natural and logical result. We have only to assume that every man who leaves a wheelbarrow, or a lawn mower, or a spade upon his lawn; a rake, with its sharp teeth pointing upward, upon the ground or leaning against a fence; a bed of mortar prepared for use in his new house; a wagon in his barn-yard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse or a cow with calf, does so at the risk of having the question of his negligence left to a sympathetic jury. . . .

The great weight of authority does not sustain the principle of the Turntable Cases. While some of the Courts have followed the rule of

Railroad Co. v. Stout, both the Courts and profession have evinced a tendency to allow this innovation to go no further, and refuse to consider it applicable to other cases every way analogous. They speak of the cases generically, as the "Turntable Cases," and treat such cases as exceptional. We are of the opinion that they are exceptional, and that they are not based upon principle, but contravene one of the old and well-established rules of the law; and we therefore decline to recognize them as authority, preferring to adhere to the better doctrine of the other cases cited. The defendant owed no duty to these children, who were trespassers.

The question discussed disposes of the case, and other points need not be alluded to.

The judgment is affirmed.

LONG and GRANT, JJ., concurred with HOOKER, J.

MONTGOMERY, C. J., dissenting. . . .

724. UTHERMOHLEN v. Bogg's RUN Co. (1901, 50 W. Va. 457, 460, 40 S. E. 410.) BRANNON, P. A land-owner in the use for lawful purposes of his property owes no duty of care to a trespasser. . . . Is he to secure his premises for their benefit? It is admitted on all hands that, as a general rule, he is not required to do this, but it is said that there is a notable exception to this general rule in the case of children. Judge Thompson, in s. 1024, Vol. I, puts it thus: "A well-grounded exception to the foregoing principle is that one who artificially brings or creates upon his own premises any dangerous thing which from its nature has a tendency to attract the childish instinct of children to play with it, is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they may be protected from injury while so playing with it or coming in its vicinity. Things of this kind frequently pass under the designation of Attractive Nuisances."" That statement is very broad, as it includes any dangerous thing which in nature has a tendency to attract the childish instincts of children to play with it. It is not confined to machinery. Where do we stop under this head? If machinery, what does it include? In these days of machinery, when it has so largely relieved the hands of man, the rule of dangerous and attractive machinery would be comprehensive. What things would be deemed dangerous under the rule above quoted from Thompson? . . . But the thing doing the injury must also be attractive to children. Where do we stop under this head? When we go on to say what machinery is attractive to some child, or even to children, we enter upon a wide, uncertain field. Under this rule the owner of land must infallibly judge in advance what is a machine or appliance both dangerous and attractive, or pain of suffering heavy damages. . . . If we stick to the bed-rock principle that a man has the right to use his property as he chooses for lawful purposes and that he owes no duty to use it in any particular way for the safety of trespassers, we have a certain fixed guide. It is true that the little boy is injured, but the owner whose machine injured him was engaged in lawful business upon his own premises, and it was farthest from his intention to hurt the child, and it is only a case of inevitable accident, which always has befallen, and always will befall, humanity, and for which nobody is answerable. This is the only safe rule. The maxim that a man must so use his own property as not to hurt

another extends only to neighbors who do interfere with or enter upon it; the maxim ceases when the trespasser crosses the line.1

1 [PROBLEMS:

The defendant city maintained in its common an unfenced pond. The plaintiff's intestate, a boy, waded out into the pond to catch a bird, got beyond his depth, and was drowned. Is the city liable? (1899, Schauf's Adm'r v. Paducah, 106 Ky. 228, 50 S. W. 42.)

The plaintiff boy, passing along a sidewalk, noticed smoke coming out, and crawled in under the sidewalk to see what was the cause. The cause was a fire, due to the faulty short-circuiting of electric wires of the defendant. The plaintiff was injured by touching the wires. Is the defendant responsible? (1904, Commonwealth Electric Co. v. Melville, 210 Ill. 70, 70 N. E. 1052.)

The defendant's power-house was left open to the street, and its machinery attracted the plaintiff, a boy, who came in to inspect it, and was injured by it. Is the defendant liable? (1910, Stollery v. Cicero & P. S. R. Co., 243 Ill. 290, 90 N. E. 709.)

ESSAYS:

Irving Browne, "Allurement of Infants." (A. L. R., 31: 891.)

Jeremiah Smith, "Liability of Landowner to Children entering without Permission." (H. L. R., XI, 349, 434.)

57.)

NOTES:

"Negligence: allurement: care due to children." (C. L. R., II, 564.) "Duty to discover trespassing children." (C. L. R., IV, 433.) Allurement to children: negligence." (C. L. R., VII, 437.)

"Liability to trespassers: Child trespassers on turntable." (H. L. R., XXI,

"Duty to infant trespassers." (M. L. R., I, 418.)

"Infants; attractive nuisance." (M. L. R., I, 605.)]

SUB-TITLE (VI): PLAINTIFF A PERSON REQUIRING DISCIPLINE OR CORRECTION

Topic 1. Wife

726. IN RE COCHRANE. (1840, 8 Dowl. 630.) COLERIDGE, J. There can be no doubt of the general dominion which the law of England attributes to the husband over the wife. In Bacon's Abridgment, tit. Baron and Feme, B, it is stated thus: "The husband hath by law power and dominion over his wife and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner." And although by our ancient law she was entitled, in case of threats of violence, or violence offered, to sue out her writ of supplicavit, yet that writ, in such case, had a special saving of the husband's lawful power; he was to be bound "Quod ipse praefatam A" (the wife) "bene et honeste tractabit et gubernabit, ac damnum aut malum aliquod eidem de corpore suo, aliter quam ad virum suum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet, non faciet, nec fieri procurabit.” Fitzherbert, Natura Brevium, 80.

(1641.) Art. 80. Everie

727. BODY OF LIBERTIES OF MASSACHUSETTS. marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt. If there be any just cause of correction, complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.

728. THE QUEEN v. JACKSON

QUEEN'S BENCH DIVISION. 1891

L. R. [1891] 1 Q. B. 671

ARGUMENT on the return to a writ of habeas corpus, commanding Edmund Haughton Jackson to bring up the body of Emily Emma Maude Jackson, his wife, taken and detained in his custody. . . . The return made to the writ by the said E. H. Jackson was as follows. He stated that the said Emily Emma Maude Jackson was his wife; that, during his absence in New Zealand in the year 1888, she went to reside with her sisters and brother-in-law; that it was arranged that she should shortly join him in New Zealand: but she wrote pressing him to return to England, and he did so, but she then refused to live with him, and he was denied access to her. Acting on the advice and counsel of her sisters and brother-in-law, she had in no way responded to his overtures; that he, therefore, took his said wife, and had since detained her in his house, using no more force or constraint than was necessary to take her or to prevent her returning to her said relations; that she had had perfect liberty in and the full run of the house, short of leaving it; and he submitted that he could lawfully use such restraint in order to have an opportunity of regaining the affection of his wife, which

had become alienated from him, and which it was impossible he could do when she was under the influence of her said relations. Affidavits were filed on both sides, the substance of which, so far as material to this report, was as follows. It appeared from the husband's affidavit that . . . on Sunday, March 8, 1891, the husband, assisted by two young men, one of whom it appeared was a solicitor's articled clerk, seized her, just as she was leaving a church in Clitheroe in company with her sister, and forced her into a carriage, which was in readiness. The affidavits of the husband, and those who assisted him, stated that in obtaining possession of his wife, no violence was used, and no more force than was absolutely necessary to separate her from her sister, to whom she was clinging, and get her into the carriage. . . . The husband placed his wife in charge of his sister, with instructions to give her every attention, and he also engaged a nurse to attend on her in the house. During her detention he caused her to be visited by a doctor. . . . It was stated by the affidavit of the husband, and those made on his behalf by the persons in the house during the wife's detention, that every kindness and consideration had been shown by the husband to his wife. . .

Henn Collins, Q. C., and Malcolm P. Douglas, for the husband. It is contended that, if a wife refuses to live with her husband, he has a right by law to take possession of her person by force, and keep her, not imprisoned, but confined, till she consents to do so, in order to prevent her from permanently withdrawing her society from him. In re Cochrane [supra, No. 726] is an authority for that proposition. In that case the release of the wife was refused in a case similar to the present. It is not contended that the law entitles a husband to beat his wife, as stated in Bacon's Abridgement and some of the earlier authorities; but the authorities generally show that he is entitled to the custody and control of his wife, and to detain her by force if she refuses to live with him.

(Lord HALSBURY, L. C. Where ancient dicta, which state that a husband is entitled to imprison his wife, also state that he has a right to beat her, can they be rejected as authorities for the latter proposition without being affected as authorities for the former?)

HALE, C. J., says, in Lord Leigh's Case,' that the "salva moderata castigatione" of the Register was meant not of beating, but of admonition and confinement to the house in case of the wife's extravagance. In Manby v. Scott 2 it is stated that the law makes the wife subject to her husband, although the husband may not put her to death, for that would be murder; neither can he beat her. . . . In Bacon's Abridgement, 7th ed. vol. 1, p. 693, tit. Baron and Feme, B, a distinction is drawn between confinement and imprisonment, and it is said that the husband hath by law a right to the custody of the wife, and may, if he think fit, confine, but may not imprison her.