The opinion
Dissenting Opinion
Gilkison, J.
I am unable to agree with the majority opinion for the following reasons:
Of course, the general principles of law applicable to negligence cases, consuming many pages of the majority opinion, are correct. There is no reason for their incorporation in the opinion since there is no dispute concerning them. But I cannot agree with the statement making the law in Indiana, as follows:
“The general rule is that no different or higher duty exists with respect to an infant trespasser than would exist in the case of an adult trespasser, so that ordinarily 1 there is no duty toward an infant trespasser except to refrain from willful or *192 wanton injury. Accordingly, it has been held that ordinarily there is no duty to anticipate the presence of infant trespassers, to keep a lookout for them, to guard against their intrusion, or to keep property in such safe, proper, or particular condition as not to endanger them if they trespass thereon. Infánt trespassers ordinarily take the premises as they find them.”
This quotation is from 65 C. J. S., Negligence, §27 pp. 450, 451. No reason is given in the opinion why this paragraph should be set out as the law instead of that part of the same section set out two paragraphs later in the section. I think the latter paragraph more correctly states the law as it has always been in Indiana, and as it should be today and always. It is as follows:
“In some cases, however, there are expressions to the effect that very young children cannot be trespassers or that the rule regarding trespassers has no application where children of immature years are concerned. A child without discretion, although a trespasser, occupies a legal attitude similar to that of an adult who is not a trespasser. When the infant is where he has a right to be and the trespass is technical, recovery is not barred by the trespass.”
The rule approved in the majority opinion is, in fact, based upon the Holmes decision in United Zinc & Chemical Co. v. Britt (1922), 258 U. S. 268 , 42 Sup. Ct. 299, 66 L. Ed. 615 , and cases in foreign jurisdictions based wholly upon that decision. That rule is not supported by any Indiana decision noted in Corpus Juris Secundum. Some recent Indiana decisions have attempted to put Indiana in line with the Holmes decision above noted. With these decisions I am in dissent. 2 This rule, *193 in its inception, seems to have been created by a mind incapable of giving to youth, particularly that period which we know as the non sui juris period, its proper place and proper protection, in a civilized Christian community. The majority opinion fails to note, that which is directly charged in the complaint, that the little boy, John C. Neal, who was “caught, pinioned upon the stepladder” was, at the time, but' three years old. To me it is inhuman to say, that “no different or higher duty exists with respect to [such] an infant trespasser than would exist in the case of an adult trespasser.” A civilized Christian state cannot long tolerate such a perversion of the laws of nature, and of the experience of all civilized people.
The rule, which I think should govern in this case as set forth above, is supported by Indiana decisions, as noted by Corpus Juris Secundum, as follows: Penso, by Next Friend v. McCormick et al. (1890), 125 Ind. 116 , 25 N. E. 156 , 9 L. R. A. 313, 21 Am. St. Rep. 211 ; Wise v. Southern Indiana Gas & Electric Co. (1941), 109 Ind. App. 681 , 34 N. E. 2d 975 ; Drew v. Lett (1932), 95 Ind. App. 89 , 182 N. E. 547 . I have cited many additional Indiana cases supporting it in my dissent in the recent case of Plotzki v. Standard Oil Co. (1950), 228 Ind. 518 , 527 et seq., 92 N. E. 2d 632, 636 , to which citation is respectively made as a matter of brevity. Probably the last Indiana case so holding is Borinstein v. Hansbrough (1948), 119 Ind. App. 134 , 82 N. E. 2d 266 . To illustrate the untenable position in which the law is placed by the majority opinion, I cite Young v. Harvey (1861), 16 Ind. 314 , in which this court held that one who dug a well six feet deep and forty-two inches in diameter on an unenclosed lot owned by him, leaving it uncovered, so that a trespassing horse fell *194 into it and was killed, was liable in damages to the owner of the horse for its value. This court then reasoned the matter thus, at page 315:
“If the probability was so strong as to make it the duty of the owner of the lot, as a member of the community, to guard that community from the danger to which the pit exposed its members, in person and property, he is liable to an action for loss occurring through his neglect to perform that duty.
“We think any reasonable man, of ordinary understanding and extent of observation of the ways of life, would say that the probability of injury to others, under the circumstances, from leaving the well in question in the condition it was, was not only strong, but that it amounted almost to certainty — a probability as strong as would arise from an unguarded cellar on a street in the city . . . .”
This case (correctly I think) has been consistently sustained and followed by this and the Appellate Court. See Sisk v. Crump (1887), 112 Ind. 504 , 14 N. E. 381 ; Cleveland, etc., R. Co. v. Means (1914), 59 Ind. App. 383 , 104 N. E. 785 , 108 N. E. 375 . See also, an interesting and instructive article, 26 Indiana L. J. pp. 266 to 273, criticizing the majority opinion in the Plotzki case.
So we have the anomalous situation that if a trespassing horse, cow, or other domestic animal is injured or killed because of an unguarded, unfinished structure, the owner of the structure is liable to the owner of the animal for the injury sustained. But, if the injury or death be of a little three year old boy, there can be no recovery. Apparently our law, as set forth in the majority opinion, considers the little boy a worthless liability. But the horse or cow having a present dollar value, rates much higher and its owner may collect damages for its destruction or injury.
*195 I cannot follow this reasoning. It means that the law has a greater respect for the rights of property than for the life and safety of little children. As I view it, it is a tragedy to make our law thus.
The majority opinion labors through many pages in an attempt to establish that it must be averred “that the appellees, or one of them, maintained a condition within the semi-completed house that would likely be dangerous to children.” I think the averments of the complaint, as set out in the majority opinion on this proposition, are quite sufficient as against the demurrer. It is averred that this little boy went into the building that had the side walls and the roof erected. No flooring had been placed on the joists, or rafters constructed on the first or second floors. One opening was left for the installation of a door, and no barricade whatever was placed in this opening. Apparently the work had been temporarily abandoned. A stepladder was inside the structure resting on the joists on the ground floor, and reaching to the joists on the second floor. It is difficult to imagine a more hazardous place for a little child to play.
Every adult person is charged with knowledge of the natural propensities of little children to rove and play, and if a person engages in making a structure on a lot in a populous city or town, he owes a community obligation to keep the structure in such condition that little children may not be injured if he allows them to play about or in the structure.
The law, respecting this situation, is well compended in Vol. II, Restatement of the Law Torts, Negligence §839, pp. 920, 921, thus:
“It is not necessary that the defendant should know that the condition which he maintains upon his land is likely to attract the trespasses of children or that the children’s trespasses shall be due *196 to the attractiveness of the condition. It is sufficient to satisfy the conditions . . . that the possessor knows or should know that children are likely to trespass upon a part of the land upon which he maintains a condition which is likely to be dangerous to them because of their childish propensities to intermeddle or otherwise. Therefore, the possessor is subject to liability to children who after entering the land are attracted into dangerous intermeddling by such a condition maintained by him although they were ignorant of its existence until after they had entered the land, if he knows or should know that the place is one upon which children are likely to trespass and that the condition is one with which they are likely to meddle.”
In Cleveland etc. R. Co. v. Means (1941), 59 Ind. App. 383, 405 , supra, the law is correctly stated by Hottel, J., thus:
“The owner of the premises owes the adult licensee no duty of active vigilance to discover his presence or his surroundings while on his premises by permission only, because such adult is presumed to go there with the understanding that he will take the premises as they are, with all the uses to which the owner may subject them while there, and that he will look after his own safety and welfare, and that he has discretion and judgment to do so. In other words, the owner of the premises does not know and has no reason to anticipate that such adult licensee will place himself in a situation of peril. To indulge such an assumption when a child licensee of immature years, judgment and discretion is involved would be against our common understanding and reason and lacking in every element of humanity and justice. Constructive knowledge on the part of a railroad company that children non sui juris are on its tracks, or probably will be on its tracks, at a particular place, of necessity, carries with it knowledge of the peril or probable peril and helpless condition of such children, and hence, the vigilance or care, which in the first instance was only negative in character, may become affirmative in the second instance and *197 require that the company in such case shall, in some degree, at least, exercise for the child the care and vigilance which it must know the child is tunable to exercise for itself, and, must not, by an affirmative act of omission or commission, expose such child to a danger which it knows, or has-reason to believe is unknown to and not understood or appreciated by such child. The duty of ordinary care tuhich the owner of premises owes to the child licensee thereon is recognized and affirmed even in those jurisdictions which refuse to recognize or apply the attractive nuisance doctrine, as evidenced by the case of Wheeling etc. R. R. Co. v. Harvey, supra.” ( 77 Ohio St. 235 , 83 N. E. 66 , 75, 122 Am. St. 503, 19 L. R. A. [N. S.] 1136 and the instructive annotation therein). (My italics).
In City of South Bend v. Turner (1901), 156 Ind. 418, 423 , 60 N. E. 271 , where a similar question was presented to this court, speaking by Hadley, J., we said:
“We could not assume that a boy six and a half years of age was so advanced in knowledge as to be able to know when he was in a place where he ought not to be, and to appreciate the evidences and presence of danger; Cleveland, etc. R. Co. v. Klee, 154 Ind. 430 ,
In 38 Am. Jur., Negligence, §205, p. 888, we find an excellent and well supported statement of the law on this proposition, thus:
“It is a fact universally recognized by the courts that children may be of such tender years as to be without mental capacity to understand and appreciate the perils that may threaten their safe being, and as not to be charged with personal contributory negligence for having failed to avoid injury from such perils, by reason of the fact that they are presumed conclusively to be incapable of contributory negligence.”
Many additional cases could be cited, asserting the same legal principle, but that would only extend this dissent. It is basically correct ^to say, that if the struc *198 ture being erected is in a populous neighborhood in a city or town where little children live and play, and is in such condition that they might be injured if they play therein or thereabout, the builder of such a structure has constructive knowledge that children will play therein or thereabout and this carries with it, of necessity, knowledge of the peril or probable peril of such children and of their helpless condition. Under these conditions, vigilance and care upon the part of those who are erecting the structure become affirmative and require that they exercise for the little children the vigilance and care which they must know the children are incapable of exercising for themselves. The builder may not, by an affirmative act of omission or commission, expose such children to dangers. The liability is imposed agreeable with the general law of negligence and not because of any supposed peculiarity of the law of attractive nuisance.
Of course, the demurrer admits the truth of all the properly pleaded facts. Certainly the facts pleaded in the case at bar are from every standpoint ample to state a cause of action in the plaintiff. Since this is true, it was error for the trial court to sustain the general demurrer thereto. Borinstein v. Hansbrough (1948), 119 Ind. App. 134, 142 , supra; Lewis v. Cleveland, etc. R. Co. (1908), 42 Ind. App. 337, 341 , 84 N. E. 23 , and cases cited.
Unprejudiced writers have adversely criticized the propensity of courts attempting abstractly and arbitrarily to rule, as a matter of law, that certain particular conditions may and others may not be such as to state a cause of action in similar situations. 26 Indiana L. J., p. 266, supra; 9 Oregon Law Review, pp. 190, 192, 193; Vol II, Restatement of the Law Torts §339, pp. 920, et seq. To say, as in the majority *199 opinion, that the stepladder in question under the existing conditions as pleaded was not dangerous for a three year old boy to play with is an arbitrary and unreasonable statement. The trouble with this part of the opinion is that it ignores the situation as directly pleaded in the complaint, and considers the stepladder apart as a harmless device; it should have considered all the pleaded facts including that there was no floor in the house, there were only the joists. A slight fall from the stepladder to the joists might well have caused the death of the three year old boy as it did his mother. I think that anyone acquainted with children and their propensities would naturally expect that there would be danger of serious injury or death to an unattended three year old boy who would climb a stepladder situated as this stepladder was. I think we should decide negligence cases agreeable with the well defined rules governing such cases, and that when little children are involved, we should definitely cease determining such cases arbitrarily as a matter of law, ignoring completely the facts as averred in the complaint.
Of course, the building of dwelling houses is an essential pursuit in any civilized state. No authority need be cited to establish this truth. It is in the nature of a self-evident truth. The plaintiff in this case not only does not assert to the contrary, but by bringing this action, he affirms that truth. By his complaint, he raises only the question whether or not in exercising this essential pursuit the builder must take reasonable precaution to protect the little non sui juris children of the neighborhood from death or serious injury. Our courts have so frequently decided this question in the affirmative that it seems a supererogation to again recite the cases. At the risk of being so considered, I quote from a few cases as follows:
*200 From Byron K. Elliott, C. J.:
“The cases last cited all recognize the rule that children of tender years are not to be treated as persons of mature years. This is a reasonable and humane rule, and any other would be a cruel reproach to the law; but the law merits no such reproach, for, throughout all its branches, whether of tort or contract, there runs ... a line distinguishing children of years too few to have judgment or discretion, from those old enough to possess and exercise those faculties. This is a doctrine taught by every man’s experience and sanctioned by our law. A departure from it would shock every one’s sense of justice and humanity.” The Indianapolis, Peru and Chicago Railway Company v . Pitzer (1886), 109 Ind. 179, 183 , 6 N. E. 310 , 10 N. E. 710 , 58 Am. Rep. 387 , and many authorities there cited.
Again, from Olds, J.:
“It is a well recognized doctrine that persons are required to use greater care in dealing with children of tender years than with older persons who have reached the age of discretion, and that greater care is required to avoid injury to them even when they are trespassers.” Penso, by Next Friend v. McCormick (1890), 125 Ind. 116, 122 , supra.
From Montgomery, J.:
“Conceding, as the demurrer does, that appellant knowing the probable consequences, maintained the foot log at a place and in a condition to imperil the lives of persons, invited and induced to use it in ignorance of their danger, and that in these circumstances appellant’s minor son, [age 9 years] unable to comprehend his peril, fell from the log because of its unsafe condition, and was drowned, we think a cause of action is stated, and that the complaint was rightly held to be sufficient.” Indianapolis Water Co. v. Harold (1908), 170 Ind. 170, 173 , 83 N. E. 993 , and cases there cited.
*201 From our Appellate Court, speaking by Moran, J.:
“However, it is not an open question in this State that ah individual or corporation is liable for injuries to a child non sui juris caused by leaving unguarded and exposed machinery or surroundings, which are of such a nature and character as to naturally tempt and allure children to play with or otherwise use the same. Chicago, etc., R. Co. v. Fox (1906), 38 Ind. App. 268 , 70 N. E. 81 ; 1 Thornton, Negligence §435; Lewis v. Cleveland, etc. R. Co. (1908), 42 Ind. App. 337 , 84 N. E. 23 .” City of Indianapolis v. Williams (1915), 58 Ind. App. 447, 454 , 108 N. E. 387 . See, also cases cited in Plotzki v. Standard Oil Co. (1950), Dissent, 228 Ind., pp. 527, 532, 533..
From Hamilton, J.:
“Here we have a situation wherein the complaint alleges . . . that the appellants maintained a junkyard immediately adjacent to a public street and sidewalk, where they negligently stacked piles of irons and angle beams, which extended into the sidewalk; that on top of said piles of iron and angle beams which were four or five feet high appellants negligently and carelessly laid loose iron and angle beams in such a manner that they tottered and would fall easily from said pile when any force, pull or tug was applied to them; that for many years children had been in the habit of climbing upon said piles of irons and angle beams all of which facts were known to appellants, and they took no precautions to prevent such practice.
“Neither do we feel that it is necessary in this opinion to enter upon án extended discussion of the law applicable in ‘attractive nuisance’ cases, except to say that we hold that the facts alleged in the complaint are sufficient to render the appellants liable to appellee, if established by the evidence. [Citing authorities].” Borinstein v. Hansbrough (1948), 119 Ind. App. 134, 142, 143 , 82 N. E. (2d) 266.
*202 In Vol. II, Restatement of the Law Torts, Negligence §339, pp. 920 et seq. under the title “Artificial Conditions Highly Dangerous to Trespassing Children,” a statement of the law, applicable to the facts pleaded in the complaint in the instant case, is made, thus:
“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely .to trespass, and
(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.” .
The opinion takes many pages to show that to temporarily barricade the single doorway to the house being constructed, so that a three year old boy could not enter therein when the workmen were away, would be such an expensive restriction upon the pursuit of building dwelling houses, as to greatly curtail if not totally prohibit it. I shall not characterize this as begging the question, but it does impoverish the majority position so greatly that it is left without support. A sufficient temporary barricade could have been put over the doorway at a cost too insignificant to mention— probably for fifty cents. A temporary door could have *203 been placed in the doorway at about the same cost to the builder. A temporary barricade or temporary door in no way could have impeded the builder in completing the structure, so that no question is presented concerning balancing the risk to children with the utility of the dangerous condition. Vol. II, Restatement of the Law Torts, Negligence §339, Comment on clause (d), pp. 925, 926.
Builders and all others owe a duty to protect the little children of the neighborhood where they are constructing a building or other improvement. A failure reasonably to discharge this duty is negligence. The terror screams from the little boy reached the ears of the mother in her home across the street, and true to the mother instinct of all living things, particularly of human beings, she rushed to the rescue of her terrified child — and received injuries that caused her death. Every requirement of the law was fully met by the complaint. It was error to sustain the demurrer thereto. The excellent opinion of Martin, J. in the Appellate Court, 104 N. E. (2d) 395 is a proper and well supported exposition of the law applicable to the facts contained in the complaint.
The petition to transfer should be denied.
. Even this general rule might be rationalized and modified by the statement so often made by the authorities, that liability to infant trespassers is incurred “where the owner knows, or as a reasonable person ought to apprehend, the danger of resultant injury to children too young and unexperienced to understand the fact or meaning of trespass, or to exercise judgment, or care for their own safety.” This, it seems, always has been considered at least not an “ordinary” situation. 45 C. J., §155, pp. 758, 760. Note 24 and authorities there cited.
. These Indiana eases are: Anderson v. Reith-Riley Const. Co. (1942), 112 Ind. App. 170, 172 , 44 N. E. (2d) 184. City of Evansville v. Blue (1937), 212 Ind. 130 , 8 N. E. (2d) 224. Plotzki v. Standard Oil Co. (1950), 228 Ind. 518 , 92 N. E. (2d) 632.