held not liable for the death of the plaintiff's horse from eating yew leaves from a tree upon the plaintiff's land, the horse being a trespasser when it ate them.

However, this does not mean that a land owner can deliberately set a trap for the purpose of harming a trespasser. Thus, in Hooker v. Miller, 18 the defendant set a gun in his vineyard, so arranged that it would be discharged by means of wires or cords which a trespasser would be likely to come in contact with. The plaintiff entered the vineyard to take grapes without the defendant's permission. The gun was discharged by his striking the cords and he was injured. It was held that he could recover. A trespasser is not an outlaw. The land owner would not be justified in shooting him to eject him. He cannot any more eject him by setting a gun trap for him. There is, however, no duty to warn him of his approach to a hidden danger not purposely set.

42. Same subject-Affirmative acts.-While the land occupier is under no duty to keep his premises safe for trespassers, his exemption does not extend to affirmative acts of a negligent character when he is aware of the trespasser's presence. Thus, in Herrick v. Wixom,19 the plaintiff had crawled under a circus tent and had taken a seat. The defendants, as part of the performance, exploded a giant firecracker, but did it with so little care for safety that a piece of it struck the plaintiff in the eye. He was allowed to recover. Some states assert that a land occupier is

18 37 Iowa 613, LEADING ILLUSTRATIVE CASES. 19 121 Mich. 384, 80 N. W. 117, 81 N. W. 333.

liable only for gross and wanton negligence after discovering the trespasser. 20 However, the better view supports the doctrine that he then owes the trespasser a duty of ordinary care.

But here we should distinguish between actually causing an injury and merely failing to prevent a trespasser from injuring himself. In Buch v. Amory Mfg. Co.,21 the plaintiff was a small boy who came into the defendant's manufacturing plant where dangerous machinery was being run. He did not understand English and hence failed to comprehend a warning to leave. His hand was somehow caught in a dangerous gearing and was injured. He was not allowed to recover, as the defendants owed him no duty to stop their machinery or to forcibly eject him. The courts are not entirely harmonious in their decisions in situations of this sort, where children are involved.

43. Same subject-Turntable cases.-There exists in some states a definite, well defined exception to the last stated principle, when the injury is inflicted by a turntable on the defendant's land and the plaintiff is a child. A leading case is that of Keffe v. Milwaukee & St. Paul Railway Company.22 The defendant company on its own land left a turntable unlocked. The plaintiff, aged seven, and other children, trespassed upon the defendant's property and revolved the turntable. The plaintiff's leg was caught and crushed. The court held

20 Maynard v. B. & M. R. R., 115 Mass. 458.

21 69 N. H. 257, 44 Atl. 809. See also second case in note 15, page 35. 22 21 Minn. 207. See also the first case in Railroad Co. v. Stout, 17 Wall. 657 (U. S.).

the defendant liable on the ground that the turntable was so attractive to children as to constitute an allurement and invitation to them to enter and play with it. The case was one where the danger was created by the failure to guard and not by doing an affirmative act. Moreover, the plaintiff was on the land without the permission and in fact against the wishes of the defendant. It would seem to fall under the general rule that the land owner owes no duty to keep his premises in a safe condition for trespassers. If the Keffe case be admitted to be the law, it is hard to draw the line as to what dangerous articles are to be deemed so attractive to children as to constitute an invitation to them and to require a land owner to use care. It seems to place the duty of looking after children upon every one except the parents. The doctrine is denied by many courts and seems unsound.23 It is nowhere applied in favor of adults, nor is it often applied to the keeping of useful machinery in a building.24

44. Duty to look out for trespassers.-In the ordinary case, a land occupier is under no obligation to watch out for and anticipate the presence of trespassers even when he is doing an act of an affirmative character which is likely to cause harm.25 But if, by reason of special facts which are known to him, he has reasonable cause to believe that trespassers are likely to be present, many courts require him to be on the lookout to anticipate and ascertain their pres

23 Turess v. N. Y. S. & W. R. R. Co., 61 N. J. L. 314, 40 Atl. 614, LEADING ILLUSTRATIVE CASES.

24 Browning v. Canning Co., 132 Iowa 631. 25 Maynard v. B. & M. R. R., 115 Mass. 458.

See also § 42.

ence.26

This rule is most frequently applied to the operation of railroads, and some courts go so far as to require a railroad to keep a constant watch ahead on the track to discover persons even at places where it has no particular reason to expect a trespasser to be.27 The rule which more widely prevails, however, is that a railroad owes no duty to a trespasser to watch out for him and ascertain his presence unless it has some particular reason to anticipate his presence at such a place.28 If it has such cause, it owes him a duty to use due care.29 When the trespasser's presence is actually observed, the duty arises not to injure him by any act of affirmative negligence.3°

45. Duty to licensees.-A bare licensee is one who without pay enters on premises by the permission of the occupant on matters in which the occupant has no interest. It is commonly said that a "bare licensee must take the license as he finds it;" that is, the land occupier owes him no duty to keep the premises safe. This is true so far as any duty is concerned of repair or even of ascertaining that the premises are out of repair or unsafe. Thus, in Fitzpatrick v. Cumberland Glass Mfg. Co.,32 a boy who was passing through a gate to carry dinner to his father was struck by the gate falling. This was held to be only

31

26 Connell v. Elec. Ry. Co., 131 Iowa 622, 109 N. W. 177; Cincinnati Ry. Co. v. Smith, 22 Ohio St. 227.

27 Jeffries v. Seaboard Air Line R. R. Co., 129 N. C. 236, 39 S. E. 836. 28 Fearons v. K. C. Elev. Ry. Co., 180 Mo. 208, 79 S. W. 394. See §§ 69 to 74.

29 Myers v. B. & M. R. R., 72 N. H. 175, 55 Atl. 892.

30 See § 42.

31 Gautret v. Egerton, L. R. 2 C. P. 371 (Eng.), LEADING ILLUSTRATIVE CASES.

32 61 N. J. L. 378, 39 Atl. 675.

passive negligence and no recovery was allowed, as the fall was caused solely by neglect to repair. However, such a licensee has at least the right that a trespasser has to be protected against any act of affirmative negligence when the occupant is aware of his presence,33 and against any purposely injurious act. Further than this, the occupant cannot without notice change the premises in such a way as to create a new and concealed peril. In the case of Carskaddon v. Mills, the defendant, desiring to withdraw a license to cross his premises, stretched across the way a strand of barbed wire. The plaintiff had no notice of this and drove his horse in the dark against the wire. He was allowed to recover for the injuries which the animal sustained.

34

46. Same subject-Duty to give warning.-Besides the foregoing duties, the land occupant owes a licensee the duty to give warning of the presence of any concealed danger of which the occupant is aware and of which the licensee is not aware.35

One class of bare licensees is excepted from the rule of Gautret v. Egerton. When a carrier undertakes to transport a person, even though gratuitously, it owes him as great a duty as though he had paid for the service. It must, therefore, use due care to avoid injuring him.36

The possessor of a license granted for pay is in a better position than a bare licensee. He is treated

33 Gallagher v. Humphrey, 6 L. R. 684 (Eng.).

34 5 Ind. App. 22, 31 N. E. 559.

35 Gautret v. Egerton, L. R. 2 C. P. 371 (Eng.), LEADING ILLUSTRATIVE CASES.

36 Harris v. Perry & Co., L. R. (1903) 2 K. B. 219 (Eng.).