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Explaining the Fight over the Attractive Nuisance Doctrine: A Kinder, Gentler Instrumentalism in the “Age of Formalism”

  • Peter Karsten

Extract

One sunny summer Sunday, on August 17, 1873, an Irish-born day laborer named Fitzsimmons, “of very limited circumstances,” living in a shack in Ft. Leavenworth, Kansas, sent his twelve-year-old son, Jerry, to fetch the family's cow. The animal had been left on an “open common” grazing area near the local sheds and yards of the Kansas Central Railroad. Fitzsimmons had warned his son to stay away from the railroad company's trains, but he had never mentioned, and may never have known of, a curious device that stood near the commons. For the past three years, a large iron turntable had served to reverse the direction of the company's locomotives (see figure 1). The Fitzsimmons family cow had wandered to a spot close to this turntable, and Jerry Fitzsimmons climbed onto this device as two or three other, older children began to turn it around. The Fitzsimmons boy sat on the end of the table with his legs hanging over its rails. Before he realized what was happening, the rails of the turntable came into alignment with those of the adjacent track, and his left leg was caught between the two rails and badly mangled, requiring its amputation. His father sued the company for negligence, and a jury awarded him three thousand dollars and court costs; the company appealed the decision, and the Kansas Supreme Court ordered a new trial, but in 1879 it upheld that second jury's award and finding of the company's liability. The high court cited decisions of the United States Supreme Court and of the Minnesota Supreme Court in its opinion.

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1. These are the words used by Justice Daniel Valentine, summarizing the record of the first trial court, in Kansas Cent. R.R. v. Fitzsimmons, 18 Kan. 34, at 35 (1875).

2. Kansas Cent. R.R. v. Fitzsimmons. 22 Kan. 686 (1879).

3. Nagel v. Missouri Pac. R.R., 75 Mo. 653, 658 (1882). This report of the case also notes that the Missouri Pacific Railway relinquished its rights to the property on which this turntable stood by deeding the land back to the City of Jefferson by quit-claim some four months after the accident that took young Albert Nagel's life. Whether this is mere coincidence or whether the company sought to avoid a similar damage suit in the future is unclear.

4. York v. Pacific & I.N.R.R., 8 Idaho 574, 69 P. 1042 (1902).

5. Harriman v. Pittsburgh, Cin. & St. L. R.R., 45 Ohio St. 11, 12 N.E. 451 (1887).

6. Justice Augustus Summers in Wheeling & Lake Erie R.R. v. Harvey, 77 Ohio St. 235, 83 N.E. 66 (1907), citing Ryan v. Towar, 128 Mich. 463, 87 N.W. 644 (1901). Both Summers and Hooker cited the opinion of Michigan's Chief Justice Thomas Cooley in Powers v. Harlow, 53 Mich. 507, 19 N.W. 257 (1884), whose obiter views appeared to reject the attractive nuisance doctrine. Cooley was already famous for his “freedom of property” treatise, Constitutional Limitations (1868). His torts treatise would later discredit the attractive nuisance doctrine. Cooley, T., A Treatise on the Law of Torts or the Wrongs which Arise Independent of Contracts (1880). In the late 1880s he would serve as the first chairman of the Interstate Commerce Commission.

7. Thus Michigan's Justice Frank Hooker would refer to “the generic term…attractive nuisance” in that state's “leading case,” Ryan v. Towar, 128 Mich. 463, 87 N.W. 644 (1901).

8. Horwitz, M., The Transformation of American Law, 1780-1860 (1975), ch. 1. Gilmore, G., The Age of American Law 4167 (1977) calls it the “Age of Faith”; Horwitz, , The Rise of Legal Formalism, 19 Am. J. Legal Hist. 251 (1975); Friedman, L., A History of American Law 383–84 (1985); Hall, K., The Magic Mirror: Law in American History 211ff (1989); and White, M. G., Social Thought in America: The Revolt against Formalism (1949), prefer the term “Age of Formalism.”

9. Henderson v. Continental Refining Co., 219 Pa. 384 (1908); Millum v. Lehigh & Wilkes-Barre Coal Co., 225 Pa. 214 (1909); Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702 (1918). The post-1925 history of the doctrine is beyond the scope of this essay, but suffice it to say that by 1980, some 35 states had adopted section 339 (which does not require that the danger actually be “alluring”), and only five state courts had rejected it. For more on that history see Note, Demise of the “Attractive Nuisance” Concept [in Mississippi], 2 Miss. C. L. Rev. 41 (1980) (authored by Eugene Thatch), and Note, Attractive Nuisance: A Logical Extension or Expansion ofan Already Expanded Liability? 36 ALB. L. REV. 439 (1972). Cf. Clark, C.J., in Kermarec v. C.G.T., 245 F. 2d 175, 180 (1957): “[The distinctions between invitee, licensee, and trespasser] have become more and more obscured during the last century as courts have moved towards imposing on owners a single duty of reasonable care.” The leading case that formally abolished the distinction in tort between trespassers and invitees appears to be Rowland v. Christian, 69 Cal. 2d 108, 443 P. 2d 561, 70 Cal. Rptr. 97 (1968).

10. Thus the high courts of Connecticut, Rhode Island, Michigan, Massachusetts, New Jersey, and New York, in addition to Ohio and Pennsylvania, have now reversed themselves and are in the ranks of those accepting section 339 of the Second Restatement while the legislatures of Virginia and West Virginia had, between 1929 and 1939, directed their high courts to hold property owners of dangerous artificial conditions liable for injuries to “expected trespassers.” (Thatch, supra note 9, at 57, 58n). See also Batson, , Trespassing Children: A Study in Expanding Liability, 20 Vand. L. Rev. 139 (1966).

11. Lon Fuller uses the attractive nuisance doctrine as an example of “a doctrine that is plainly fictitious.” Fuller, L., Legal Fictions 6671 (1967).

12. Kansas Cent. R.R. v. Fitzsimmons, 22 Kan. 686 (1879); Union Pacific R.R. v. Dunden, 37 Kan. 1, 14 P. 501 (1887); Powers v. Harlow, 53 Mich. 507, 19 N.W. 257 (1884); Kopplekom v. Colorado Cement Co., 16 Col. App. 278, 64 P. 1047 (1901); Temple v. McComb City Elec. Light & Power Co., 89 Miss. 1, 42 So. 874 (1907); Day v. Consolidated Light, Power, & Ice Co., 136 Mo. App. 274, 117 S.W. 81 (1909); Thompson v. Baltimore & Ohio R.R., 218 Pa. 444, 67 A. 768, 774 (1907).

13. See, e.g., L. Friedman, supra note 8, at 300, 469; M. Horwitz, supra note 8, at xvi, 102, and ch. 8 (“The Rise of Legal Formalism”); Llewellyn, K., The Common Law Tradition: Deciding Appeals 37 (1960).

14. Wilkes, J., offers the distinction just summarized in Gautret v. Egerton, 2 L.R.-C.P. 371 (1872).

15. Townsend v. Walthen, 9 East 277,103 Eng. Rep. 579 (K.B. 1808); Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (C.P. 1828); Blyth v. Topham, Cro. Jac. 158, 79 Eng. Rep. 139 (K.B. 1608), known to later jurists via Sir John Comyns' Digest (numerous English and American editions) under “Action on the Case for Nuisance; C”; Sarch v. Blackburn, 4 Car. & P. 299, 172 Eng. Rep. 712 (N.P. 1830).

16. Hounsel v. Smyth, 7 C.B. (n.s.) 743, 141 Eng. Rep. 1003 (C.P. 1860); Bolch v. Smith, 31 L.J. 201 (Ex. 1862); Sharrod v. London & W.W.R.R., 4 Exch. 580, 154 Eng. Rep. 1345 (1849); Mangan v. Atterton, 1 L.R.-Ex. 239 (1866). Cf. Singleton v. Eastern Counties Ry., 7 C.B. (n.s.) 287, 141 Eng. Rep. 827 (C.P. 1859) (where the legs of a three-year-old girl, trespassing on the parapet of a bridge, were lost to a passing train whose engineer saw her peril, blew his whistle, but did not brake).

17. Lynch v. Nurdin, 1 Ad. & El. (n.s.) 29, 113 Eng. Rep. 1041 (Q.B. 1841).

18. Anderson, B., and Pollock, C. B. in Lygo v. Newbold, 9 Exch. 302, 156 Eng. Rep. 129 (ex. 1854). Cf. Hughes v. McAffie, 2 Hurl. & Col. 744, 159 Eng. Rep. 308 (ex. 1863); Ross v. Keith, 16 R. 86 (1888); Patterson v. Borough of Woollahra, 16 N.S.W.L.R. 229 (1895); and Slade v. Victorian Ry., 15 V.L.R. 190 (1889).

19. See, e.g., Justice Esek Cowen's obiter dicta in Loomis v. Terry, 17 Wendell (N.Y.) 494, 500 (1837): “The business of life must go forward, and the fruits of industry must be protected.” Unintended injuries could occur to trespassers without liability, he noted, offering several examples from English cases. Cf. Brown v. European & N.A.R.R., 58 Me. 384 (1870); Severy v. Nickerson, 120 Mass. 306 (1876); and Maenner v. Carroll, 46 Md. 193 (1877).

20. Loomis v. Terry, supra note 19; Justice Sherman (son of the “Founding Father”) did note that English law allowed spring guns if neighbors had been warned of that fact, something he condemned as “aristocratic and feudal, and the offspring of the peculiar state of society which existed three centuries ago.” Johnson v. Patterson, 14 Conn. 1, 5 (1840).

21. Daley v. Norwich & W.R.R., 26 Conn. 591, 598 (1858). Chief Justice Samuel Church had similarly sidestepped the trespass problem nine years before in Birge v. Gardner, 19 Conn. 507 (1849), where a property owner's poorly secured heavy gate had broken off from his fence and injured a six-year-old child who had been tugging at it. The court affirmed a jury verdict of $160, citing Johnson v. Patterson, supra note 20.

22. Whirley v. Whiteman, 38 Tenn. 1 Head 610, 622 (1858).

23. The Irish-born Tennessee chief justice was clearly comfortable with Lord Denman's argument, as he used his language. Id. at 622.

24. See, e.g., Prosser on Torts 364, and literally every article on the doctrine. Justice James Campbell's forerunning opinion in Hargreaves v. Deacon, 25 Mich. 1 (1872), skirts the question of whether attractive and dangerous artificially created objects injurious to trespassing children might lead to landowner liability. The case was one in which a boy fell into an uncovered cistern on another's property. The court would not hold the owner liable, but Justice Campbell would “express no opinion concerning cases where the nature of the business is such as to present peculiar attraction to children.…” Id. at 5.

25. Stout v. Sioux City & Pac. R.R., 2 Dillon 294, 23 F. Cas. 183 (1872).

26. 84 U.S. (17 Wall.) 657 (1873) (Justice Ward Hunt, former Chief Justice of the New York Supreme Court and a Republican, wrote the opinion).

27. 2 Cent. L. J. 176 (reported March 12, 1875). This instruction was reproduced by the editors of the Central Law Journal, quite deliberately and explicitly, to provide the reader with an alternate to the one they had just drawn favorable attention to, the Minnesota high court's reversal of Judge Hall's directed verdict for the company. Here was professionalism at work. The editor of the spanking-new Central Law Journal was none other than John Forrest Dillon, whose instructions in Stout the Minnesota high court had just praised in reversing Judge Hall. The associate editor of the Journal was Seymour Thompson, whom Dillon had just appointed his master in chancery, and who was to praise Dillon's Stout instructions extravagantly within a few years. Thompson, S. D., The Law of Negligence in Relations Not Resting in Contract (1886).

28. Dean Prosser, describing the emergence of the attractive nuisance doctrine, refers to Keffe and its author as “an obscure Minnesota judge named Young.” Prosser, , Trespassing Children, 47 Calif. L. Rev. 430n (1959). The historian can give Justice Young more in the way of flesh and blood. He was a minister's son, born in Boston in 1840, a graduate of Harvard Law in 1863 where he studied torts with the Royall Professor of Law, Joel Parker, the author of Britton v. Turner. He migrated to Minnesota shortly after graduation and was named to the court to fill an unexpired term in April, 1874. He left the court in January, 1875, the same day that the Keffe decision was handed down. He set up an office in a building one floor above that of James J. Hill, the entrepreneur who was reorganizing bankrupt railroad companies into the Northern Pacific, and by 1877 was serving as Hill's chief counsel. Federal Circuit Court Judge John Dillon, behaving with great circumspection and equanimity, was the man over-seeing the receivership of the bankrupt lines (possibly with the assistance of his master in chancery, Seymour Thompson). Young traveled to Judge Dillon's court and chambers in 1878 and 1879 on Hill's behalf; he was paid eight thousand dollars for his handling of one of Hill's suits in the 1880s, and he presented Hill's brief to the U.S. Supreme Court in Northern Securities v. U.S., 193 U.S. 197, 241 (1903). 1 Who Was Who in America, 1897-1940, at 1391 (1942); Martin, A., Hill, James J. and the Opening of the Northwest 133, 159, 162, 164, 171, 178-79, 259 (1976).

29. Many defendants sought to nonsuit the young plaintiffs with evidence of their (or their parents') contributory negligence. Except for those few cases where the child injured was either deemed old enough (typically over the age of ten) to comprehend the risks he or she was taking, or was seen as sufficiently aware of the risk on other grounds (some of these cases involved ponds), these efforts to nonsuit failed or were overturned on appeal. A striking thing I learned from this study is that mid-nineteenth-century English and American courts were also creating a powerful exception to the contributory negligence rule for children too young to be seen as being capable of knowing the risks they were running. As such, they were not deemed to be negligent themselves, and their parents were not held to be negligent either, on the grounds that parents could not be expected to lock their children up or have them “nursed” to prevent their injury. See Daley v. Norwich & W.R.R., 26 Conn. 591 (1858), Mangam v. Brooklyn R.R., 38 N.Y. 455 (1868).

30. Keffe v. Milwaukee & St. P. R.R., 21 Minn. 207, 210-13 (1875).

31. Mullaney v. Spence, 15 Abb. Pr. (n.s.) 319, 322 (1874). (Judge Reynolds also cited Lynch, Birge, and Whirley.)

32. Government St. R.R. v. Hanlon, 53 Ala. 70 (1875); Kansas Cent. R.R. v. Fitzsimmons, 18 Kan. 34 (1875); Nagel v. Missouri Pac. R.R., 75 Mo. 653 (1882); Koons v. St. Louis & Iron Mountain R.R., 65 Mo. 592 (1877); Philadelphia Hydraulic Works v. Orr, 83 Pa. 332, 336 (1877).

33. 3 Q.B.D. 327 (1878); 1 S.D. Thompson, supra note 27, at 305.

34. See, e.g., Bransom's Adm. v. Labrot, 81 Ky. 638 (1884); Harriman v. Pittsburgh C. & St. L. R.R., 45 Ohio St. 11, 12 N.E. 451 (1887); Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52 (1891); Brinkley Car-Works v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895); City of Pekin v. McMahon, 154 111. 141, 39 N.E. 484 (1895); Price v. Atchison Water Co., 58 Kan. 551, 50 P. 450 (1897); Frank v. Southern Cotton Oil Co., 78 S.C. 10, 58 S.E. 960 (1907); Bjork v. City of Tacoma, 135 P. 1005 (Wash. 1913); Coeur d'Alene Lumber v. Thompson, 215 F. 8 (9th Cir.) (1914). See also Ft. Wayne & N. Ind. Traction v. Stark, 74 Ind. App. 669, 127 N.E. 460 (1920).

35. S. D. Thompson, Law of Negligence, supra note 27.

36. Atlantic & N.R.R. v. Bailey's Adm., 11 Neb. 332, 9 N.W. 50 (1881); Evansich v. The G.C. & S.F.R.R., 57 Tex. 123 (1882); Nagel v. Missouri Pac. R.R., 75 Mo. 653 (1882); Bransom's Adm. v. Labrot, 81 Ky. 638 (1884); Ferguson v. Columbus & Rome R.R., 75 Ga. 637, 77 Ga. 102 (1885); Bridger v. Ashville & Spartenburg R.R., 25 S.C. 24 (1885); City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155 (1886); Harriman v. Pittsburgh C. & St. L. R.R., 45 Ohio St. 11, 12 N.E. 451 (1887); Mackey v. Mayor of City of Vicksburg, 64 Miss. 777, 2 So. 178 (1887).

37. Ilwaco R.R. & Navigation Co. v. Hedrick, 1 Wash. 446, 25 P. 335 (1890). Chief Justice T. J. Anders staked out the strictest liability rule of any high court toward turntable owners when he ruled that the company's evidence that it was the custom of other railroads to leave turntables unfastened (evidence relevant to the “reasonable man” standard in negligence) was not admissible, because such a custom would be “manifestly unreasonable and negligent.” For the opposite view, that evidence of unlocked turntables being characteristic of railroad company policy was admissible and relevant, see Chief Justice James Gilfillan's observations in Kolsti v. R.R., 32 Minn. 134, 19 N.W. 655 (1884). Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52 (1891); Barrett v. S. Pac. R.R., 91 Cal. 296, 27 P. 666 (1891); City of Pekin v. McMahon, 154 111. 141, 39 N.E. 484 (1895); Brinkley Car-Works v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895); East Tennessee & Western N.C.R.R. v. Cargille, 105 Tenn. 628, 59 S.W. 141 (1900); Edginton v. Burlington R.R., 116 Iowa 410, 90 N.W. 95 (1902); Denver City Tramway v. Nicholas, 35 Colo. 462, 84 P. 813 (1906). Cf. Koppelkom v. Colorado Cement Co., 16 Colo. App. 278, 64 P. 1047 (1901); Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908); Taylor v. Manila Elec. R.R. & Light Co., 16 Phil. 8 (1910); Meyer v. Menominee & Marinette Light & Traction Co., 138 N.W. 1008 (Wis. 1912); Riggle v. Lens, 71 Or. 125, 142 P. 346 (1914); Baxter v. Park, 184 N.W. 198 (S.D. 1921); Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330 (1925); Cooke v. Midland G.W.R.R. of Ireland, App. Cas. 229 (1909). Cf. Harrold v. Watney, 2 Q.B. 320 (1898); and Jewson v. Gatti, 2 L.T.R. 381, 441 (1886): A girl leaning against a railing (which gave way) to see scenes being painted in a basement. “It must have been known that painting would attract children; and then a bar was put ostensibly as a protection, against which children would naturally lean while looking down into the cellar. This was almost an invitation—certainly an inducement—to the child to lean against the bar.”

38. Union Pac. R.R. v. Dunden, 37 Kan. 1, 14 P. 501 (1887); O'Malley v. St. Paul, M. & M. R.R., 43 Minn. 289,45 N.W. 440 (1890); Gulf, Colo. & S. Fe R.R. v. McWhirter, 77 Tex. 356, 14 S.W. 26 (1890); Ft. Worth & D. C. R.R. v. Measles, 81 Tex. 474, 17 S.W. 124 (1891); Callahan v. Eel River & E.R. Co., 92 Cal. 89, 28 P. 104 (1891); Alabama G.S. R.R. v. Crocker, 131 Ala. 584, 31 S.W. 561 (1901); Chicago, B. & Q. R.R. v. Krayenbuhl, 91 N.W. 880 (Neb. 1902), Chicago & E.R. Co. v. Fox, 70 N.E. 81 (Ind. Appr. 1904); Berry v. St. Louis, M. & S.E. R.R., 214 Mo. 593, 114 S.W. 27 (1908); Taylor v. Minnesota & St. L. R.R., 163 N.W. 405 (Iowa 1917).

39. Siddall v. Jansen, 168 Ill. 43, 48 N.E. 191 (1897) (an elevator shaft and a five-year-old boy); Dublin Cotton Oil Co. v. Jarrard, 40 S.W. 531 (Tex. Civ. App. 1897) (a seven-year-old girl “enjoying the whir and buzz of the machinery,” “charmed with the novel and alluring scenes,” but unaware of the “swift but lurking dangers”); Jensen v. Wetherell, 79 111. App. 33 (1898) (a planing mill's cogwheels); Force v. Standard Silk Co., 160 E 992 (1908) (child caught in silk mill machine belt); Nashville Lumber v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911) (wheelcogs in box factory); Biggs v. Consolidated Barbed Wire Co., 60 Kan. 217, 56 P. 4 (1899 (a projecting bolt and coupling that caught and killed a boy); Henderson v. Continental Refining Co., 219 Pa. 384 (1908) (unenclosed cogwheels for a pumping machine killing a seven-year-old boy); Millum v. Lehigh & Wilkes-Barre Coal Co., 225 Pa. 214 (1909) (pulley and wheel in unfenced mine company lot injuring a four-year-old boy); Brown v. Rockwell City Canning Co., 110 N.W. 112 (Iowa 1906) (a corn-husking machine was not inherently attractive or dangerous); Stamford Old Mill Co. v. Barnes, 103 Tex. 409, 128 S.W. 375 (1907) (a cotton gin's conveyor belt not inherently attractive to children); Rodgers v. Lees, 140 Pa. 475, 21 A. 399 (1891) (a moving ball chain used to haul materials at a mill).

40. Mattson v. Minnesota & N.W. R.R., 104 N.W. 443 (Minn. 1905); Hayko v. Colorado & Utah Coal Co., 77 Col. 143, 235 P. 373 (1925).

41. Consolidated Elec. Light & Power v. Healy et ux., 65 Kan. 798, 70 P. 884 (1902); Daltry v. Media Elec. Light & Power, 208 Pa. 403, 57 A. 833 (1904); Day v. Consolidated Light, Power & Ice Co., 136 Mo. App. 274, 117 S.W. 81 (1909); Meyer v. Menominee & Marinette Light & Traction Co., 138 N.W. 1008 (Wis. 1912); Hayes v. Southern Power Co., 78 S.E. 956 (S.C. 1913); Ft Wayne & N. Ind. Traction v. Stark, 74 Ind. App. 669, 127 N.E. 460 (1920); McCoy v. Texas Power & Light, 239 S.W. 1105 (Tex. 1922); Stark v. Holtzclaw, 90 Ha. 207, 105 So. 330 (1925). Cf. Guinn v. Delaware & Atl. Tel. Co., 72 N.J.L. 276 62 A. 412 (1905); Sheffield Co. v. Morton, 161 Ala. 153, 49 So. 772 (1909).

42. Government St. R.R. v. Hanlon, 53 Ala. 70 (1875); Biddle et ux. v. Hestonville, M. & F.P. R.R., 112 Pa. 551, 4 A. 485 (1886); Texas & Pac. R.R. v. Brown, 33 S.W. 146 (Tex. Civ. App. 1895); Denver City Tramway v. Nicholas, 35 Colo. 462, 84 P. 813 (1906); Cahill v. E.B. & A.L. Stone & Co., 153 Cal. 571, 96 P. 84 (1908); Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702 (1918); Central Branch U.P. R.R. v. Henigh, 23 Kan. 244 (1880); Robinson v. Oregon Short Line & Utah R.R., 7 Utah 493, 27 P. 689 (1891); Barnhill's Adm. v. Mt. Morgan Coal Co., 215 E 608 (1910); Emerson's Adm. v. Peteler, 35 Minn. 481, 29 N.W. 311 (1886); Catlett v. St. Louis, Iron Mt. & S. R.R., 57 Ark. 461, 21 S.W. 1062 (1893); Underwood v. Western & Atl. R.R., 105 Ga. 48, 31 S.E. 123 (1898); Swartwood v. Louisville & Nashville R.R., 111 S.W. 305 (Ky. 1908); Zigman v. Beebe & Runyan Furniture Co., 97 Neb. 689, 151 N.W. 166 (1915).

43. Brinkley Car-Works v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895); Duffy v. Sable Ironworks, 210 Pa. 326, 59 A. 1110 (1904); Kinchlow v. Midland Elevator Co., 57 Kan. 374, 46 P. 703 (1896); Schmidt v. Kansas City Distilling, 90 Mo. 284, 1 S.W. 865 (1886); Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 62 S.E. 600 (1908).

44. Kopplekom v. Colorado Cement Co., 16 Colo. App. 278, 64 P. 1047 (1901); Snare & Triest Co. v. Friedman, 169 F. 1 (1909); Foster v. Lusk, 129 Ark. 1, 194 S.W. 855 (1917). But see Missouri, Kansas & Texas R.R. v. Edwards, 90 Tex. 65, 36 S.W. 430 (1896).

45. Penso v. McCormick, 125 Ind. 716, 25 N.E. 156 (1890); Union Pacific R.R. v. McDonald, 152 U.S. 262 (1894); Roman v. City of Leavenworth, 90 Kan. 379, 133 P. 551 (1913); Carr v. So. Pennsylvania Traction Co., 253 Pa. 274 (1916); Erickson v. Great Northern R.R., 82 Minn. 60, 84 N.W. 462 (1900).

46. Peirce v. Lyden, 157 F. 552 (1907); Brown v. City of Minneapolis, 136 Minn. 177, 161 N.W. 503 (1917).

47. Machey v. Mayor of City of Vicksburg, 64 Miss. 777 So. 178 (1887); Baxter v. Park, 184 N.W. 198 (S.D. 1921). (But see Zagar v. Union Pac. R.R., 214 P. 107 (Kan. 1923), where the Kansas court cited United Zinc & Chemical v. Britt, 258 U.S. 268 (1922), in ruling that an excavation not visible off the company's property did not constitute an attractive nuisance.) Cincinnati & Hammond Spring Co. v. Brown, 32 Ind. App. 58, 69 N.E. 197 (1902), Harris v. Cowles, 38 Wash. 331, 80 P. 537 (1905).

48. Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908); City of Indianapolis v. Williams, 58 Ind. App. 447, 108 N.E. 382 (1915); Salladay v. Old Dominion Copper Mining & Smelting Co., 12 Ariz. 124, 100 P. 441 (1909) (an open irrigation flume in which a three-year-old girl drowned); Riggle v. Lens, 71 Or. 125, 142 P. 346 (1914).

49. Tucker v. Draper, 62 Neb. 66, 86 N.W. 917 (1901) (a disused open well); (S.C. Commissioner Roscoe Pound concurring); Franks v. Southern Cotton Oil Co., 78 S.C. 10, 58 S.E. 960 (1907); Bjork v. City of Tacoma, 135 P. 1005 (Wash. 1913); Coeur d'Alene Lumber v. Thompson, 215 F. 8 (9th Cir. 1914). But see Dobbins v. Missouri, Kan. & Tex. R.R., 91 Tex. 60, 41 S.W. 62 (1897) (an artificially created trench with water in which a two-year-old girl drowned); Gillespie v. McGowan, 100 Pa. 144 (1882); Klix's Adm. v. Nieman, 68 Wis. 271, 32 N.W. 223 (1887); Peters v. Bowman, 115 Cal. 345, 47 P. 113(1896).

50. See, e.g., Garza v. Texas Mexican R.R., 41 S.W. 172 (Tex. Civ. App. 1897) (a standing railroad car not intrinsically attractive); New York N.H. & Hartford R.R. v. Fruchter, 260 U.S. 141 (1922) (no implied invitation to climb the girder of a bridge that had live wires close to it); San Antonio & Arkansas Pass R.R. v. Morgan, 92 Tex. 98, 46 S.W. 28 (1898) (a turntable not alleged to be attractive); Curtis v. Tennino Stone Quarries, 37 Wash. 355, 79 P. 955 (1904) (machinery not attractive to children).

In 1920 the Indiana Appellate court anticipated the Second Restatement''s abandonment of the “attractiveness” requirement when it argued that dangerous electric lines in a tree that children might be expected to climb would suffice to hold a company liable for injury to a trespassing child despite their finding that the wires were not themselves alluring. Ft. Wayne & N.I. Traction Co. v. Stark, 74 Ind. App. 669, 127 N.E. 460 (1920).

51. St. Louis, Iron Mt. & S. R.R. v. Waggoner, 166 S.W. 948 (Ark. 1914) (an empty alcohol barrel not known to be dangerous); Kressine v. Janesville Traction Co., 175 Wis. 192, 184 N.W. 777 (1921) (a stationary trolley car sufficiently disconnected and disabled).

52. St. Louis, Vandalia & Terre Haute R.R. v. Bell, 81 111. 76 (1876) (a turntable too isolated from public or non-company property to be visible or attractive); Meyer v. Menominee & Marinette Light & Traction Co., 138 N.W. 1008 (Wis. 1912) (an electrical wire not noticeable off the premises); Ramsay v. Tuthill Bldg. Material Co., 295 111. 395, 129 N.E. 127 (1920) (a ten-year-old boy killed by a sandslide in the company's bins, where the court said “there is no implied invitation from the mere existence of a dangerous attraction which is not discoverable off the premises.”); United Zinc & Chemical Co. v. Britt, 258 U.S. 268 (1922) (two boys killed swimming in a pool of water and sulfuric acid left in the basement of a building). Oliver Wendell Holmes, Jr., wrote the majority opinion, denying recovery because the danger was not discoverable off the premises, and Holmes has been treated in some circles as the author of this exception to the rule. As the cases cited before Britt in this footnote make clear, he was not its author, but after Britt, his opinion would be the one critics of the exception would have to deal with. See Hayko v. Colorado & Utah Coal Co., 77 Colo. 143, 235 P. 373 (1925), and Green, , The Basis of Responsibility in Tort, 21 MICH. L. REV. 495, 521 (1925), where Green rejected “the idea of 'attractiveness'” and anticipated its abandonment as an element of liability in section 339 of the Second Restatement of Torts (supra note 10).

53. Kentucky Cent. R.R. v. Gastineau's Adm., 83 Ky. 119 (1885) (a fourteen-year-old boy too old to be unaware of dangers); Bates v. Nashville, C. & St.L. R.R., 90 Tenn. 36, 15 S.W. 1069 (1891) [a boy who said he was “going to get on” a moving turntable “or die” was aware of the dangers, and the effort required to unblock and rotate the turntable too substantial (three or four older boys needed to remove bolts and crossties and to turn the turntable)]; Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S.W. 375 (1907) (a boy thoroughly familiar with machinery); Taylor v. Manila Elec. R.R. & Light Co., 16 Phil. 8 (1910) (a fifteen-year-old boy too familiar with dangers); Central of Georgia R.R. v. Robins, 95 So. 367 (Ala. 1923) (a fifteen-year-old boy too aware of dangers); Branan v. Wimsatt, 298 F. 833 (D.C. Cir. 1924) (a twelve-year-old girl too aware of dangers).

54. Friedman, L., Total Justice 63 (1985). In two of these forty-two cases (from 1873 to 1917), the jury had found for the company and the high court set a figure itself. Fifteen of the cases were turntable cases; for these the average award was higher—$3538. These figures were not inconsistent with those Friedman reports for Alameda County, California, tort awards by juries, 1880-1900. See Friedman, , Civil Wrongs: Personal Injury Law in the Late Nineteenth Century, 1987 Am. B. Found. Res. J. 351, 358.

55. Illinois, Indiana, Maine, Massachusetts, Minnesota, Colorado, Nebraska, New Hampshire, New York, Oregon, Wisconsin, West Virginia, Connecticut, and Missouri had five-thousand-dollar wrongful death limits (Wilmot v. McPadden, 79 Conn. 367, 6 A. 157 (1906); Nagel v. Missouri Pac. R.R., 75 Mo. 653, 658 (1882); C. Patterson, Railway Accident Law 494, 414 (1886). Most states limited these damages further to income the child might have earned until age twenty-one. See Clark v. Manchester, 62 N.H. 577 (1883); and Caldwell v. Brown, 53 Pa. 453 (1866). Only Louisiana appeared to sanction damages for the pain and suffering the child endured before death. Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52 (1891). Other states limited suits by the guardian (where the child had survived the accident) to the doctor's bills, the parent's lost labor in caring for the child, and the diminished value of the child's services to the parent to age twenty-one. See, e.g.. Ft. Worth & Denver City R.R. v. Measles, 81 Tex. 474, 17 S.W. 124(1891).

56. Friedman, Civil Wrongs: Personal Injury Law in the Late Nineteenth Century, supra note 54, at 366n; Long, C. O., Wages and Earnings in the United States, 1860-1890, at 1415 (1960); U.S. Dept. of Commerce, Bureau of the Census, 1 1980: Census of Population, Ch. C, table 92 (1983); Daniels, & Martin, , Jury Verdicts and the “Crisis” in Civil Justice, 11 Just. Sys. J. 321 (1986).

57. Kansas Cent. R.R. v. Fitzsimmons, 18 Kan. 34 (1875); Nagel v. Missouri Pac. R.R., 75 Mo. 653, 663a (1882); City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155 (1886) (an excavated creek bed at a street crossing, leading to the drowning of a five-year-old boy); Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52 (1891) (an untended gravel roller pulled by a mule). In this Louisiana case the jury had found the five-year-old boy contributorily negligent and gave the victory to the defendant. The court, guided by the Louisiana Code's comparative negligence rule, reversed the verdict and directed an award of one thousand dollars; City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484 (1895) (a city-owned lot with deep water pits and poor fences); Price v. Atchison Water Co., 58 Kan. 551, 50 P. 450 (1897) (an eleven-year-old boy drowned in a reservoir); Harriman v. Pittsburgh, Chi. & St.L. R.R., 45 Ohio St. 11, 12 N.E. 451, 458 (1887). Justice Marshall Williams was referring to signal torpedoes negligently left by the railroad tracks (which tracks were themselves also “inviting to children and likely to tempt them to wander and play”). But he was also remarkably frank in dicta (perhaps at the request of formalist colleagues)—regarding the rationale for the doctrine in the original turntable cases. Of these, he wrote, “it is said children had an implied invitation to go upon them because their being attracted to them might have been reasonably expected. … There is in reality no invitation; it is implied from slight circumstances.”

58. Cooley, supra note 6, at 606, 606n; C. Patterson, supra note 55, at § 196; Sherman, T. & Redfield, A., 1 A Treatise on the Law of Negligence § 31 (5th ed. 1898); cf. Street, T. A., 1 The Foundations of Legal Liability: A Presentation of the Theory and Development of the Common Law 160 (1906).

59. Clark v. Manchester, 62 N.H. 577, 580 (1883); Frost v. Eastern R.R., 62 N.H. 220, 9 A. 790, 791 (1887).

60. Daniels v. New York & N.E. R.R., 154 Mass. 349, 28 N.E. 283 (1891). See also Gay's Adm. v. Essex Elec. St. Ry, 159 Mass. 238, 34 N.E. 186 (1893); and Cherney v. Fitchburg R.R., 160 Mass. 211, 214 (1893) (Holmes, J.); Walsh v. Fitchburg R.R., 145 N.Y. 30, 39 N.E. 1068 (1895), where Justice Rufus Peckham distinguished the English precedent, Lynch v. Nurdin 1 Ad. & El. (n.s.) 29, 113 Eng. Rep. 1041 (Q.B. 1841), by emphasizing that the attractive object there (an egg merchant's cart) had been left in a public street, incorrectly representing Lord Denman's opinion to apply only to children playing in a non-trespassing manner with dangerous and negligently maintained property.

61. Holbrook v. Aldrich, 168 Mass. 16, 46 N.E. 115 (1897). Note that the facts of this case had clearly allowed Holmes, had he been so inclined, to find the plaintiff to have been an invitee, or at the very least, a licensee. It will come as no surprise that Holmes cited Mangan. Holmes's Holbrook opinion is quoted in Smith, , Liability of Landowners to Children Entering without Permission, 11 Harv. L. Rev. 349 (1898); Delaware, L. & W. R.R. v. Reich, 61 N.J.L. 635,40 A. 682 (1898); Paolino v. McKendall, 24 R.I. 432, 53 A. 268 (1902); and numerous other early twentieth-century eastern decisions.

62. Smith, supra note 61, at 435, 352, 355, 352n, 353n, 354, 353, 436.

63. He is cited at length in Delaware, L. & W. R.R. v. Reich, 61 N.J.L. 635, 40 A. 682 (1898); Ryan v. Towar, 128 Mich. 463, 87 N.W. 644 (1901); Paolino v. McKendall, 24 R.I. 432, 53 A. 268 (1902); and numerous other early twentieth-century opinions involving injury to trespassing children.

64. Chief Justice William Magie in Turness v. New York, S. & W. R.R., 61 N.J.L. 314, 40 A. 614, 615 (1898) (a turntable case). The rule's logic, to Magie, was also “absurd.” “A solid foundation”—Justice William Gumere (albeit with three dissenters) in Delaware, L. & W. R.R. v. Reich, 61 N.J.L. 635, 40 A. 682 (1898) (another turntable case in which a thirteen-year-old girl's foot was crushed as she tried to rescue her six-year-old brother from a similar fate); “what a constant menace…”—President Judge Henry Brannon in Uthermohlen v. Bogg's Run Mach. & Mfg. Co., 50 W. Va. 457, 40 S.E. 410, 412 & 414 (1901) (involving a coal car cable's pulleys that caught a boy's leg). Cf. Ritz v. City of Wheeling, 31 S.E. 993 (W. Va. 1898) (a reservoir drowning). (Admirers of West Virginian Judge Marmaduke Kent may be surprised to learn that he did not dissent from either of these opinions. The politics of opinions is an understudied, and difficult to document, subject; perhaps Kent was engaged in trading votes.)

65. Ryan v. Towar, 128 Mich. 463, 87 N.W. 644 (1901); Paolino v. McKendall, 24 R.I. 432, 53 A. 268 (1902); Walker's Adm. v. Potomac F. & P. R.R., 105 Va. 226, 53 S.E. 113 (1906) (a turntable case); Wilmot v. McPadden, 79 Conn. 367, 65 A. 157 (1906) (a house demolition case); Wheeling & Lake Erie R.R. v. Harvey, 77 Ohio St. 235, 83 N.E. 66 (1907) (a turntable case); Thompson v. Baltimore & O. R.R., 218 Pa. 444, 67 A. 768 (1907) (another turntable case); Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 62 S.E. 600 (1908) (a hot water well in an alley); Bottum's Adm. v. Hawks, 84 Vt. 370, 79 A. 858 (1911) (a mill conduit drowning); Nelson v. Burnham & Morrill Co., 114 Me. 213, 95 A. 1029 (1915) (an elevator shaft in a canning factory).

66. Justice Frank Hooker in Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 648 (1901); Justice D. Newlin Fell in Thompson v. Baltimore & O. R.R., 218 Pa. 444, 67A. 768, 770 (1907); Justice George Powers in Bottum's Adm. v. Hawks, 84 Vt. 370, 79 A. 858, 860 (1911); Justice Augustus Summers in Wheeling & Lake Erie R.R. v. Harvey, 77 Ohio St. 235, 83 N.E. 66, 72 (1907).

67. I prefer this term to one I regard as less precise (“formalism”). Lon Fuller's description of the “doctrinal” jurist is useful; he is one who “does not consider that it is the primary function of judges or legal scholars to weigh the practical consequences of deciding a particular case one way or the other. Rather [he] regards them as having a purely deductive function. The starting point for the deciding of any case is to be found in certain premises dictated by the nature of law and legal relationships. Each relationship or transaction has its essential nature.” Fuller, L., Basic Contract Law, 520 (1947).

68. Justice Samuel Hunter in Dublin Cotton Oil Co. v. Jarrard, 40 S.W. 531, 534 (Tex. Civ. App. 1897).

69. Some 114 of 136 accident suits (84.8%) that were resolved at a level reported in published reports involved boys; some 81.4% of those in which the child's age could be ascertained (105 of 129) were ten years of age or younger.

70. Chief Justice Albert Whitfield in Temple v. McComb City Elec. Light & Power Co., 89 Miss. 1, 42 So. 874, 875 (1907); Justice Daniel Valentine in Kansas Cent. R.R. v. Fitzsimmons, 33 Kan. 626, 691 (1879); Collier, 72 Cent. L. J. 122 (1914).

This masculine appreciation for the vigorous activities of small boys could cut two ways in these cases: Justice William Ellis flavored his dissent in a Florida high court case in 1925, allowing recovery by an eight-year-old boy who lost two fingers to an uninsulated wire passing through a magnolia tree near his school, with gender-specific language. The boy had been picking magnolia blossoms on a spring day. Ellis dismissed this behavior: “Boys rather effect a contempt and disdain for such girlish trophies” as flowers. Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 335 (1925).

71. Justice Daniel Hydride in McLendon v. Hampton Cotton Mills, 95 S.E. 781, 782 (S.C. 1917), (a six-year-old boy drowned in a reservoir); Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 644 (1901); Heva v. Seattle School District #1, 110 Wash. 622, 188 P. 776 (1920); Twist v. Winona, 39 Minn. 165, 39 N.W. 402 (1888); Iamurri v. Saginaw City Gas Co., 148 Mich. 27, 111 N.W. 884 (1907); Missouri, Kan. & Tex. R.R. v. Edwards, 90 Tex. 65, 36 S.W. 430 (1896); Ritz v. Wheeling, 45 W. Va. 267, 31 S.E. 993, 996 (1898); Nicolosi v. Clark, 169 Cal. 746, 147 P. 971 (1915) (a ten-year-old boy took dynamite caps from a road construction box); Catlett v. St. Louis, Iron Mt. & S. R.R., 57 Ark. 461, 21 S.W. 1062 (1893) (a boy swinging on the ladder of a moving freight train); Justice S. M. Weaver in Edginton v. Burlington R.R., 116 Iowa 410, 90 N.W. 95 (1902) (a turntable case).

72. Wilson, , Limitations on the Attractive Nuisance Doctrine, 1 N.C. L. Rev. 162, 164n (1923).

73. See supra notes 70-71.

74. See supra note 71.

75. S. D. Thompson, supra note 27 at § 1040; L. Friedman, supra note 54, at 56, 63.

76. Bureau of Census, Twelfth Census: 1900: Manufacturing 983-89.

77. Bureau of Census, Eleventh Census: 1890: Abstract 172 (189-). (Information on rail mileage per state appeared to be missing from the 1900 census; hence the use of the one for 1890. More specific information on turntables per state is not available in census data or in any of the studies of railroads that I could find.)

I am counting Ohio and Pennsylvania in this calculation as adopting states; if we treat them as rejecting states (for the brief periods that their high courts rejected the rule), then the states adopting the rule had, on average, only twenty-four percent more track than those rejecting it (4205 versus 3388). That difference, however, is still substantial, and is not in the direction predicted by the Horwitz hypothesis.

78. Bureau of Census, supra note 76, at 983-89.

79. Frost v. Eastern R.R., 62 N.H. 220, 9 A. 790, 791 (1887), and Ritz v. City of Wheeling, 31 S.E. 993, 996 (W. Va. 1898), offer such examples, and these were then quoted by several eastern courts following the Frost precedent.

80. Bureau of Census, Twelfth Census Abstract: 1900, at 32-33; 1 Bureau of Census, supra note 16, at pt. 1, lxv.

81. Bureau of Census, Twelfth Census Abstract: 1900, at 66 (table 51); id, pt. 1, table 26.

82. Supra note 33.

83. See, e.g., Posner, , A Theory of Negligence, 1 J. Legal Stud. 29 (1972); Posner, R. & Landes, W. M., The Economic Structure of Tort Law 86-87, 9597 (1987).

84. Tucker v. Draper, 62 Neb. 66, 86 N.W. 917, 920 (1901). (Commissioner Roscoe Pound concurred in this opinion.) Chicago & E.R. Co., v. Fox, 70 N.E. 81, 84 (Ind. App. 1904); Nashville Lumber v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911); Briggs v. Consolidated Barbed Wire Co., 60 Kan. 217, 56 P. 4 (1899); Justice S. L. Mestrezat dissenting, in Thompson v. Baltimore & O. R.R., 218 Pa. 444, 67 A. 768, 775 (1907). Cf. Whirley v. Whiteman, 38 Tenn. (1 Head) 610 (1858) and Schmidt v. Kansas City Distilling, 90 Mo. 284, 1 S.W. 865, 868 (1886), where the summary of trial court testimony reports that the “defendant could have put up a fence enclosing the [scalding water] pipes without difficulty.”

A later opinion by the Nebraska Supreme Court may serve as an even better example of this cost-benefit analysis in action: In Baltimore & O. R.R. v. Krayenbuhl, 65 Neb. 889, 903-4, 91 N.W. 880, 882-83 (1902), Supreme Court Commissioner I. L. Albert observed, in a case involving an unlocked, unfenced turntable and a trespassing child: “The danger…may be lessened by the use of a lock…; the interference with the proper use of the turntable occasioned by the use of such lock is so slight that it is outweighed by the danger to be anticipated from an omission to use it.” Commissioner Albert allowed that turntables were to be distinguished in this regard from ponds on vacant lots: “The public good would not require the owner of a vacant lot on which there is a pond to fill up the pond or enclose the lot with an impassable wall to insure the safety of children resorting to it, because the burden of doing so is out of proportion to the danger to be anticipated from leaving it undone.” (Noted in R. Posner & W. M. Landes, supra note 83, at 86.)

85. Smith, supra note 61, at 360-61, 369, 439, 443.

86. Justice Andrew Cobb in Underwood v. Western & A. R.R., 105 Ga. 48, 31 S.E. 123, 124 (1898); President Judge Henry Brannon in Uthermohlen v. Bogg's Run Mining & Mfg. Co., 50 W. Va. 457, 40 S.E. 410, 414 (1901); cf. Harris v. Cowles, 38 Wash. 331, 80 P. 537 (1905); Justice Frank Hooker in Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 645 (1901); Justice William Gumere in Delaware, L. & W. R.R. v. Reich, 61 N.J.L. 635, 40 A. 682, 683 (1898); Justice George Powers in Bottum's Adm. v. Hawks, 84 Vt. 370, 79 A. 858, 865 (1911).

87. Chief Justice Edward Kent in Salladay v. Old Dominion Copper Mining & Smelting Co., 12 Ariz. 124, 100 P. 441, 442 (1909). Cf. the language of Lord Justice Clerk in Ross v. Keith, 16 R. 86, 90 (1888). Kent, a Harvard graduate, regarded open flume irrigation ditches to be necessary for the “prosperity” of miners and farmers. (The Arizona court did accept the rule in more explicitly “attractive” invitation cases such as turntables.)

88. Justice James Whitfield in Stark v. Holtzclaw, 90 Ha. 207, 105 So. 330, 334 (1924) (an electrocution case); 1 Street, T. A., The Foundations of Legal Liability: A Presentation of the Theory and Development of the Common Law 160 (1906); supra notes 58-67.

89. Justice William Allen in Clark v. Manchester, 62 N.H. 577, 580 (1883) (a drowning); Chief Justice James Mitchell (dissenting) in Duffy v. Sable Ironworks, 210 Pa. 326, 59 A. 1110, 1102 (1904) (a hot grease vat accident); Justice John Buchanan in Walker's Adm. v. Potomac F. & P. R.R., 105 Va. 226, 53 S.E. 113 (1906) (a turntable case); Justice D. Newlin Fell in Thompson v. Baltimore & O. R.R., 218 Pa. 444, 67 A. 768, 770 (1907) (a turntable case); Justice William Gumere in Delaware L. & W. R.R. v. Reich, 61 N.J.L. 635, 40 A. 682 (1898) (a turntable case). Chief Justice Henry Brannon in Uthermohlen v. Bogg's Run Mach. & Mfg. Co., 50 W. Va. 457, 40 S.E. 410 (1901) (pulleys of a coal car cable catching a boy's leg).

Some of our “formalist” critics of the rule also seem to have identified with the ideology of “possessive individualism,” laissez-faire, or Social Darwinism. (See supra notes 85-87.) I do not regard this ideological perspective as being the determinative element in their judicial philosophy; this I believe to be doctrinal “formalism.” But I recognize that the two perspectives were sometimes present in the same opinion in opposition to the attractive nuisance rule and that they were quite complementary.

90. Justice George Powers in Bottum's Adm. v. Hawks, 84 Vt. 370, 79 A. 858, 864 & 865 (1911) (a drowning); Chief Justice Albert Savage in Nelson v. Burnham & Morrill Co., 114 Me. 213, 95 A. 1029, 1032 (1915) (an elevator accident). Cf. Justice James Campbell in Hargeaves v. Deacon, 25 Mich. 1 (1872).

91. Justice Oliver Wendell Holmes, Jr., describing Justice Clarke's dissent from United Zinc & Chemical Co. v. Britt, 258 U.S. 268 (1922), to Sir Fredrick Pollock, March 29, 1922, 2 Holmes-Pollock, Letters 92 (M. De W. Howe ed. 1941).

92. Justice Whitefield in Stark v. Holtzclaw, 90 Fla. 207, 105 S. 330 (1925).

93. Justice Frank Hooker in Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 650 (1901) (a waterwheel accident); Justice Augustus Summers in Wheeling & Lake Erie R.R. v. Harvey, 77 Ohio St. 235, 83 N.E. 66, 72 (1907) (a turntable case).

The Keefe case's trial judge, it will be recalled, also preferred “resort…to…the legislature” for “protection” against “accidents of this nature,” but refused to depart from “established principles of law” himself (supra note 28). See also Justice Leroy Denman in Dobbins v. Missouri, Kan. & Tex. R.R., 91 Tex. 60, 41 S.W. 62 (1897) (a drowning): Courts “yielding to the harships of individual instances where owners have been guilty of moral, though not legal, wrongs... have passed beyond the safe and ancient landmarks of the common law, and assumed legislative function's imposing a duty where none existed. [Legislatures] may, and doubtless should, … compel the enclosure of pools, etc. … attractive and dangerous, and impose criminal and civil li-ability. …”

94. Justice J. J. DeHaven in Barrett v. Southern Pac. R.R., 91 Cal. 296, 27 P. 666, 667 (1891) (a turntable case) [rejecting Frost v. Eastern R.R., 62 N.H. 220, 9 A. 790 (1887)] as “a departure from well-settled principles”). Justice Frank Doster in Consolidated Elec. Light & Power v. Healy, 65 Kan. 798, 70 P. 884 (1902) (an electrocution case), also implied that precedent was on the side of the attractive nuisance rule when he described it as “the sounder exposition of the law.” A few years later Doster while identifying himself with the socialism of Eugene Debs, would speak of the law as a “science.” Brodhead, M., Persevering Populist: The Life of Frank Doster 144–45 (1969).

95. Comment, The Creation of a Common Law Rule: The Fellow Servant Rule, 1837-1850, 132 U. Pa. L. Rev. 579 (1984) (authored by Jerrilyn Marston).

96. Barrett v. Southern Pac. R.R., 91 Cal. 296, 27 P. 666, 667 (1891). It is likely that the “leading case” Stout decision, coming as it did from the portals of the U.S. Supreme Court, carried the weight of “authority.” Tennessee's Whirley decision was certainly comparable to Stout in its doctrinal character, but not in its import. Moreover, a few “frontier” western jurisdictions were still (federal) territorial courts, or had benches whose member, at the time of their “first impression” attractive nuisance ruling, had recently served as territorial judges. By virtue of the fact that as territorial judges they had accepted the U.S. Supreme Court's opinion as stare decisis, these jurists may have been predisposed to accept Stout as guiding precedent. This may explain why Chief Justice Edward Kent of the Arizona Territorial Court announced the adoption of the rule for the Arizona Territory in 1909, for turntable accidents, but not for a three-year-old girl drowned in the open flume of an irrigation ditch that was necessary for the “prosperity” of miners and farmers; property with an artificially made, dangerous character did not have to be “child-proof” (Kent's quotation marks). Sallady v. Old Dominion Copper Mining & Smelting Co., 12 Ariz. 124, 100 P. 441 (1909).

I was surprised to see that only five percent of the attractive nuisance cases reported between 1873 and 1925 were in the federal courts; I had thought that the diversity suit would have generated more business. I detected only one case where a party appealed the judgment of a state high court: Friedman v. Snare & Triest Co., 71 N.J.L. 605, 61 A. 401 (1905) (reversing a lower court award of seven thousand dollars in an accident involving children playing on unstably piled I-beams that then fell) to a federal court: Snare & Triest Co. v. Friedman, 169 F. 1, 9 (3d Cir. 1909) [in diversity, where the court denied the company's claim that the state court decision was binding, absent a state statute on the subject, citing Swift v. Tyson, 16 Pet. 1 (U.S. 1842); it then cited Stout as “the rule of law.”] Perhaps those corporations doing business in more than one state had been prompted by the Stout decision to take adequate remedial action to reduce the likelihood of injuries to trespassing children (for evidence of this see infra note 127). Perhaps the consistency of the U.S. Supreme Court's position on the attractive nuisance rule, as in Union Pac. R.R. v. McDonald, 152 U.S. 262 (1894), led companies to settle out of court or to capitulate after trial at the federal district level.

97. Chief Justice Daniel Agnew in Philadelphia Hydraulic Works v. Orr, 83 Pa. 332, 336 (1877); Justice Eugene Gary in Franks v. Southern Cotton Oil Co., 78 S.C. 10, 58 S.E. 960 (1907) (a drowning); Justice J. J. DeHaven in Barrett v. Southern Pac. R.R., 91 Cal. 296, 27 P. 666 (1891); Justice S. L. Mestrezat (dissenting) in Thompson v. Baltimore & O. R.R., 218 Pa. 444, 67 A. 768 (1907).

98. Chief Justice Agnew in Philadelphia Hydraulic Works v. Orr, 83 Pa. 332, 336 (1877); Justice S. M. Weaver in Edgington v. Burlington R.R., 116 Iowa 410, 90 N.W. 95, 97 (1902) (a turntable case); Justice W. H. Holt in Kentucky Cent. R.R. v. Gastineau's Adm., 82 Ky. 119, 125 (1885). Cf. Justice William Morrow in Coeur D'Alene Lumber v. Thompson, 215 E 8, 13 (9th Cir. 1914) (a drowning).

99. Justice Issac Gordon in Biddle & Wife v. Hestonville, M. & EP. R.R., 112 Pa. 551, 4 A. 485 (1886) (a streetcar accident); Justice Henry Lamm in Berry v. St. Louis M. & S.E. R.R. 214 Mo. 593, 114 S.W. 27, 31 (1908) (a turntable case).

100. Berry v. St. Louis M. & S.E. R.R., 214 Mo. 593, 114 S.W. 27, 33 (1908); Justice R. M. Wanamaker in Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702, 704 (1918) (an automobile case). This is the Ohio case that reversed the rejection of the rule in the turntable case described in the opening paragraphs of this essay (supra note 8).

101. Philadelphia Hydraulic Works v. Orr, 83 Pa. 332, 336 (1877); Berry v. St. Louis, M. & S.E. R.R., 214 Mo. 593, 114 S.W. 27, 33 (1908).

102. See infra note 108, supra notes 25 & 28.

103. This admittedly crude generalization, based on my own research, finds some support in the impressive work of Gordon Bakken, who finds that the early California bench and bar were, of necessity, unable to rely heavily on precedent or treatises due to their scarcity. “The law in books was not always at hand,” he observes, and points out that between 1850 and 1890 the California Supreme Court “gave absolutely no legal citations” in some forty percent of the contract cases they decided. Bakken, G., Practicing Law in Frontier California 28–31, 149 (1991); Bakken, G., The Development of Law in Frontier California, 1850-1890 7, 38 (1985).

104. In Price v. Atchison Water Co., 58 Kan. 551, 50 P. 450 (1897).

105. 5 Dictionary of National Biography Denman, Lord Thomas 808ff; Holdsworth, W., A History of English Law 395ff. (1965).

106. Rogers, J. G., American Bar Leaders (1932); Union Pac. R.R. v. McDonald, 152 U.S. 262 (1894).

107. 18 Dictionary of American Biography Thompson, Seymour 471; 1 S. D. Thompson, supra note 27, at 168; Paul, A. M., Conservative Crisis and the Rule of Law: Attitudes of Bench and Bar, 1887-1895, at 43, 48-49, 57, 183 (1969).

108. 12 National Cyclopedia of American Biography 125; M. Brodhead, supra note 94, at 8-12, 47, 59-60, 88, 102, 137, 144-45.

109. Could he have met with and discussed the issues of the Keffe case with his Harvard Law School peer, Justice George Young of the Minnesota bench during this time? The thought is at least intriguing.

110. 17 Dictionary of American Biography Smith, Jeremiah 292-93; Smith, , Sequel to Workmen's Compensation Acts, 27 Harv. L. Rev. 235 (1913).

111. Grandfather Jackson was quite comfortable with the way that the late medieval English courts had generated solutions to the legal problems of property law: “I was well convinced that the system of real [property] actions established by the common law needed only to be known, to be universally approved.” His Treatise on the Pleadings and Practice in Real Actions (1828) won the praise of New York's Chancellor James Kent. Novick, S., Honorable Justice: The Life of Oliver Wendell Holmes, Jr. 6 (1989).

112. S. Novick, supra note 111, passim; Dictionary of American Biography Holmes, Oliver Wendell Jr. Supplement One, 417-27.

113. S. Novick, supra note 111, at 202; Achicle, G., Oliver Wendell Holmes, Jr.: Soldier, Scholar, Jurist 143 (1989). Holmes had written to Dean John Wigmore of Harvard Law in 1915 that this “squashy sentimentalism” made him “puke”; Holmes-Einstein Letters 48, 58, 106 (Peabody, James ed. 1964); Holmes, O. W., The Path of the Law in Collected Legal Papers 171 (1920); Howe, M., Justice Holmes: The Proving Years, 1870-1882, at 256 (1963).

114. I find Kelley, , A Critical Analysis of Holmes’ Theory of Torts 61 Wash. U. L. Q. 681 (1983) (on Mill), and Pohlman, H. L., Justice Oliver Wendell Holmes, Jr., and Utilitarian Jurisprudence (1984) (on Bentham and Austin), convincing on this score regarding Holmes's legal philosophy, but see infra, note 117, regarding Holmes's judicial practice. Holmes's “legal theologian” reference was, of course, to Dean C. C. Langdell of Harvard Law in Holmes's review of Langdell's Selection of Cases on the Law of Contracts. Holmes, , Book Review, 14 Am. L. Rev. 234 (1880).

115. Holmes, O. W., The Common Law 5 (Howe, M. ed. 1963).

116. Holmes may have felt that he had substantially added to the New York high court's decision in Harvey v. Dunlop, Hill & Den. 192 (N.Y. 1843) and that of the Massachusetts Supreme Judicial Court's Chief Justice Lemuel Shaw in Brown v. Kendall, 6 Cush. 292 (Mass. 1850) in shaping this standard, or he may simply have felt that he was restating a rule that had prevailed for at least a half century. I am persuaded by J. H. Baker, and by my own reading of seventeenth-, eighteenth-, and early nineteenth-century English and American tort cases that this negligence standard, leaving proof of the “prudent man's” behavior to the jury, was already over two centuries old when Holmes put pen to paper. Baker, J. H., An Introduction to English Legal History 456 (1990). In any event, the outcome of Holmes's tort and contract decisions simply do not differ noticeably from those of the “taught legal tradition” of the previous two centuries.

117. Heard v. Sturgis, 146 Mass. 545, 548-49 (1888) (citing Hobbes, Bentham, and Austin); S. Novick, supra note 111, at 184; Dempsey v. Chambers, 154 Mass. 330, 331, 28 N.E. 279, 280 (1891). Cf. Holmes in Hicks v. Guinness, 269 U.S. 71 (1925); Stack v. New York, N.H. & Hartford R.R., 177 Mass, 155, 157, 58 N.E. 686, 688 (1900). See also his infamous doctrinal dissent in the debt peonage case, Bailey v. Alabama, 219 U.S. 219, 245 (1911).

118. Since H. L. Pohlman's analysis of Holmes rests almost exclusively on Holmes's book and articles, citing only a tiny handful of (constitutional) cases, Pohlman has missed this dichotomy between the scholar and the practitioner. Pohlman writes that Holmes's “theory of liability reduced the conditions of legal liability to one—unreasonably dangerous action. If the agent acted dangerously, caused damage, but violated no one's rights” (precisely the case with trespassing children), the courts “could still hold him liable according to Holmes's theory, but not according to the orthodox approach.” Had Pohlman read Holbrook and Britt he would not have offered such an opinion. H. L. Pohlman, supra note 114, at 149.

119. Justice John Clarke's dissent in Britt was, according to Holmes, that of a “larmoyant” anti-formalist, supra note 52. Clarke was “deeply religious, with an “optimistic faith in the reasonableness and perfectibility of man, … and an insistence upon the social welfare.” He was willing to ignore ancient common law rules and called big businessmen “selfish and narrow.” His biographer called him a “humanitarian idealist, deeply interested in the welfare of his neighbors.…” As such, his Britt dissent (unnoted by his biographer) was perfectly consistent with his philosophical precepts. Warner, H. L., The Life of Mr. Justice Clarke 12, 17, 68, 74, 88, 205 (1959).

120. On the other hand, the fact that several jurists had offered cost-benefit analyses must have been of some significance to the decision of the authors of the Second Restatement of Torts in 1934 to add to the tort of “Artificial Conditions Highly Dangerous to Trespassing Children” this element: “d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger [must be] slight as compared with the risk to the children involved.”

121. The first two of these are Karsten, “Bottomed on Justice”: A Reappraisal of Critical Legal Studies Scholarship Concerning Breaches of Labor Contracts by Quitting or Firing in Britain and the U.S., 1630-1880, 34 Am. J. Legal Hist. 213–61 (1990); and Karsten, , The “Discovery” of Law by English and American Jurists of the Seventeenth, Eighteenth, and Nineteenth Centuries: Third-Party Beneficiary Contracts as a Test Case, 9 Law Hist. Rev. 327 (1991).

122. See, e.g., Schwartz, , Tort Law and the Economy of Nineteenth-Century America: A Reinterpretation, 90 Yale L. J. 1717 (1981); Comment, supra note 95; Friedman, L., A History of American Law 476-84 (1985).

123. Tocqueville, A., Democracy in America 246 (Mayer, J. P. & Lerner, M. ed. (1966). De Tocqueville was referring to both English and American jurisprudence in the first cited sentence; he referred more particularly to English jurists in the rest of the passage, but I find his remarks applicable to Americans as well.

124. Deaths of trespassers on railroad property alone averaged about three thousand per year from 1891 to 1920, a rate higher than that of workers and passengers combined, and in 1900 approximately twenty-four percent of all persons living in the United States were under the age of ten years old. Census Bureau, Historical Statistics of the United States 8, 10, 367, 437 (1957).

125. The Seasons 21 (1814); School of Good Manners (1796), cited in Kieffer, M., American Children through Their Books, 1700-1835, at 191 (1948). Wishy, B., The Child and the Republic: The Dawn of Modern American Child Nurture 2024 (1968); Stearns, C. Z. & P., Anger: The Struggle for Emotional Control in American History 51 (1986); Coveney, P., The Image of Childhood: The Individual and Society (1967); Clement, , The City and the Child, 1860-1885, in American Childhood (Hawes, J. & Hiner, N. R. 1985); Wiggin, K. D., Children's Rights (1892); Bushnell, H., Views of Christian Nurture 291–99 (1847); Abbott, J., Gentle Measures in the Management and Training of the Young 167–73 (1871). Cf. Alcott, L. M., Little Men (1871); Twain, M., The Adventures of Tom Sawyer (1885); and Aldrich, T. B., The Story of a Bad Boy 138 (1870): “of course [a boy in a New England winter] smashes his sled against another boy's; of course he bangs his head on the ice; and he's a lad of no enterprise whatever if he does not manage to skate into an eel-hole and be brought back home half-drowned.”

126. Dublin Cotton Oil Co., v. Jarrard, 40 S.W. 531, 534 (Tex. Civ. App. 1897).

127. Chief Justice Albert Whitfield in Temple v. McComb City Elec. Light & Power Co., 89 Miss. 1, 42, So. 874, 875 (1907); H.C.S., , Subject Note: Attractive Nuisances, 19 Law. Rep. Annot. 1094, 1114 (n.s. 1909).

128. Barrett v. Southern Pac. R.R., 91 Cal. 296, 27 P. 666, 667 (1891). (Bicknell was commenting on the trial court award of $12,500, not the appellate court's later upholding of the award.)

129. Cited in G. Bakken, The Development of Law, supra note 103, at 81-82; G. Bakken, Practicing Law, supra note 103, at 163.

130. I refer to the “Dillon's rule” known to students of American urban and Constitutional history: If there exists “any fair, reasonable, substantial doubt concerning the existence of a power” claimed by a municipal corporation, the courts will deny the municipality the power. Moreover, a municipality defaulting on its properly issued bonds cannot escape its liability because of a state statute enacted after the issuance of the bonds or because of a state court judgment releasing it from liability, and the federal courts will uphold the claims of the bondholders “with a firm hand.” 2 Dillon, , Commentaries on the Law of Municipal Corporation 515, § 897 (5th ed. 1911).

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