SALT RIVER VALLEY WATER USERS' ASSOCIATION, a Corporation, Appellant,
JAMES COMPTON, By and Through JAMES W. COMPTON, His Guardian Ad Litem, Appellee
On motion for rehearing on appeal from a judgment of the Superior Court of the County of Maricopa. A. S. Gibbson, Judge. Motion denied.
For former opinion, see 39 Ariz. 491, 8 P.2d 249.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Messrs. McNabb & DeCamp, for Appellee.
[40 Ariz. 283] LOCKWOOD, J.
Counsel for plaintiff in briefing their motion for a rehearing have not called to our attention a single point not covered in their original brief and argument, or not considered by us before rendering our decision. They have most ably and exhaustively presented again their original contentions [40 Ariz. 284] as to the principles of law which they believe should govern the case at bar, and courteously but firmly insist that we have failed utterly to grasp the meaning of the cases on which they rely and have ignored their applicability to the circumstances of this case.
We think counsel in their natural and indeed commendable zeal for their client have either never understood, or else have disregarded, certain fundamental and vital principles underlying the law of negligence, and because of that fact, most of their brief is devoted to an attempt to induce us to indorse certain rules of law which we have already approved in our original opinion, while the remainder urges a conclusion which is a non sequitur from these rules, when considered with the more fundamental principles which they disregard or misunderstand.
We therefore state briefly these principles that we may point out the fallacy involved in plaintiff's argument.
This is an action to recover damages for an injury received by plaintiff through the alleged negligence of defendant.
The first and fundamental principle of substantive common law governing such actions is that, where one is injured by the negligence of another who owes him the duty of refraining from such negligence, the injured person may recover damages from the one owing such duty. The proposition is so elementary that we cite no authorities in support thereof.
Now it will be seen that there are two essentials which must exist in order to create liability: (a) Duty to the injured party; and (b) a violation of that duty by the defendant. Either one without the other is insufficient.
In determining whether a duty exists, it may be necessary to consider many things, but among the most important is the place where the accident occurred, and it is almost universally held subject to certain [40 Ariz. 285] qualifications, which we shall discuss later, that a trespasser cannot recover from the owner of the place where he is trespassing, for injuries received thereon as a result of the negligence of such owner, unless the negligence is wilful or wanton; or, to put it more simply, an owner owes no duty to a trespasser except to refrain from wilful and wanton negligence. Conchin v. El Paso etc. Ry. co., 13 Ariz. 259, 28 L.R.A. (N.S.) 88, 108 P. 260; Giannini v. Campodonico, 176 Cal. 548, 169 P. 80; Bremer v. Lake Erie etc. Ry. co., 318 Ill. 11, 41 A.L.R. 1345, 148 N.E. 862; Weitzmann v. A.L. Barber Asphalt co., 190 N.Y. 452, 123 Am. St. Rep. 560, 83 N.E. 477; Gypsy Oil Co. v. Ginn, 88 Okl. 99, 212 P. 314.
And the owner or person in charge of property is not under any duty to protect trespassers thereon from injury. Erie Ry. Co. v. Hilt, 247 U.S. 97, 62 L.Ed. 1003, 38 S.Ct. 435; Hynes v. New York Central R. Co., 231 N.Y. 229, 17 A.L.R. 803, 131 N.E. 898; San Antonio Etc. Ry. Co. v. Morgan, 92 Tex. 98, 46 S.W. 28. Or to prevent them from getting into a place or situation of danger. O'leary v. Brooks Elevator Co., 7 N.D. 554, 41 L.R.A. 677, 75 N.W. 919; Gypsy Oil Co. v. Ginn, supra.
The reason is obvious. It would be intolerable that one who would not have been injured save for his own unlawful act may penalize another. The rule is so plainly founded upon principles of natural justice and equity that it is almost universally accepted; the only apparent exception being in cases where the court has reached a correct conclusion, but stated the wrong reason therefor, or else has, as even appellate courts do at times, allowed sympathy for the injured party in the particular case to obscure the far more dissatrous result in other cases of the adoption of a wrong principle of law.
This as a genera principle applies to adults and children alike. Heller v. New York Etc. Ry. Co., [40 Ariz. 286] (C.C.A.) 265 F. 192, 17 A.L.R. 823; Norman v. Bartholomew, 104 Ill.App. 667; Papich v. Chicago etc. Ry. Co., 183 Iowa 601, 167 N.W. 686; Nicolosi v. Clark, 169 Cal. 746, L.R.A. 1915f 638, 147 P. 971; McDermott v. Burke, 256 Ill. 401, 100 N.E. 168; Blakesley v. Standard Oil Co., 193 Iowa 315, 187 N.W. 28; Ellington v. Great Northern Ry Co., 96 Minn. 176, 104 N.W. 827; Walsh v. Fitchburg R. Co., 145 N.Y. 301, 45 Am. St. Rep. 615, 27 L.R.A. 724, 39 N.E. 1068; Wheeling etc. Ry Co. v. Harvey 77 Ohio St. 235, 122 Am. St. Rep. 503, 11 Ann. Cas. 981, 83 N.E. 66, 19 L.R.A. (N.S.) 1136; Faurot v. Oklahoma Wholesale Grocery Co., 21 Okl. 104, 17 L.R.A. (n.s.) 136, 95 P. 463; Burnhart v. Chicago etc. R. Co., Wash. 30j, L.R.A. 1916d 443, 154 P. 441.
It was early recognized, however, tha to apply it with the same strictness to young children who, while they were technical trespassers, as a matter of fact had no knowledge
of what a trespass was, or that it was wrongful to invade the property of others, was a harsh doctrine, and certain qualifications of the rule of nonliability for injuries occurring to children on the property of the negligent person were established.
In determining what these qualifications should be, two conflicting equities were in at least apparent conflict. One is that it is obviously unjust to make the property owner the perpetual watchman and insurer of the safety of all the children in the neighborhood; the other is that he should at least in handling his property consider and guard against certain well-known and innate characteristics of children.
While it is probable that in many earlier cases there was an attempt to reconcile these equities, the case in which the principle which we now discuss was first clearly enunciated was the famous one of Lynch v. Nurdin, 113 Eng. Reprint 1041. Plaintiff insists this case holds that an infant in a public highway cannot [40 Ariz. 287] be a trespasser on an object located in the highway. On the contrary, it holds definitely and specifically that the infant in question when he climbed into the cart standing on the highway was a trespasser. The headnote to the case reads as follows:
"John Lynch, by Elizabeth Lynch, his Mother and Guardian, v. Nurdin, 1841. Defendant negligently left his horse and cart unattended in the street. Plaintiff, a child seven years old, got upon the cart in play; another child incautiously led the horse on; and plaintiff was thereby thrown down the hurt. Held, thet defendant was liable in an action on the case, though plaintiff was a trespasser, and contributed to the mischief by his own act. And that it was properly left to the jury, whether defendant's conduct was negligent, and the negligence caused the injury." (Italics ours.)
Lord Denman, in rendering the opinion of the court, stated:
"It is urged that the mischief was not produced by the mere negligence of the servant as asserted in the declaration, but at most by that negligence in combination with two other active causes, the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart and so committing a trespass on the defendant's chattel. . . . The plaintiff himself has done wrong; he had no right to enter the cart, and, abstaining from doing so, would have escaped the mischief. . . .
"But the question remains, can the plaintiff then, consistently with the authorities, maintain his action, having been at least equally in fault. The answer is that, supposing the fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blameable carelessness of his servant having tempted the child, he ought not to reproach [40 Ariz. 288] the child with yielding to that temptation. . . ." (Italics ours.)
We think it is impossible to read this case carefully without realizing that it was specifically held that plaintiff was a trespasser, but, because it was the act of defendant's servant which tempted the child to become such, he could not enforce the rule of law that a defendant owes no duty to a trespasser except to refrain from wanton and wilful negligence.
On the simple yet pregnant words we have italicized above has been erected the enormous superstructure of the so-called "attractive nuisance" doctrine. Hundreds if not thousands of cases have claimed to base themselves on these words, and have drawn from them most different and at times astounding conclusions, and yet, if we but hold fast to the idea so clearly expressed therein, we have an Ariadne's thread which will lead us out of the labyrinth. While courts have differed as to the philosophical explanation of the raison d'etre for the rule, the essential elements are unmistakeable if it is to be applied. (a) The defendant must have tempted the child to come on his property; and (b) he must have yielded to that temptation.
In every case in which a judgment in favor of a trespassing child injured on the property of the person alleged to be negligent has been upheld, these two elements have appeared, with the possible exception of a very few cases sustainable on no rule of law generally accepted by respectable authority, or where the violation of an express statute was involved.
The courts, however, have uniformly recognized that it is not everything which tempts a child for which the owner of property will be responsible. They realize there is practically no object, natural or artificial, which may not be a great attraction to [40 Ariz. 289] some child, and that, if the sole test is temptation, regardless of the nature of the object or how it got there, the property owner is in effect an insurer of the child's safety. While different courts have reached different conclusions as to the specific objects which come within the attractive nuisance doctrine, there are certain principles which are quite generally applied.
In the first place, so far as we are aware, there is no case which holds that natural objects not placed on the property by the defendant, are attractive nuisances, while a number of cases hold specifically they are not. Johnson v. Atlas Supply Co., (Tex. Civ. App.) 183 S.W. 31; Fuscia v. Central L. & P. ...