Children and the Law
By A LEGAL CORRESPONDENT.
RECENTLY a little boy, showing . considerable ingenuity in evading railway ticket collectors and officials, contrived to reach the escalator of a London tube station, and began to play with the moving band of the hand-rail. The result was such terrible injury to his own hand that it had to be amputated.
Almost exactly the same tragedy occurred rather more dun twelve years ago at another tube station, and resulted in a High Court action, brought on behalf of the boy whose hand was practically torn off, against the railway company, claiming damages for the negligence as the result of which he was allowed to play on the escalator. Damages were awarded, but the Court of Appeal held that they were not payable.
This was, in fact, one only of quite a large number of cases of the same type, four at least reaching the House of Lords.. In all of them little children, desperately inquisitive, like puppies and other small animals, had been attracted to Moving machinery or some other allurement, and meddling with it, had met disaster. In practically all they had been trespassing, though in some of them, where their persistent wandering in places where they had no business to be had worn out the patience and vigilance of their guards, it was held that they had been allowed access to the danger by its custodians.
The issue in such cases can be stated very simply. Idle adults are attracted by machinery—even a rock- . drill at work in a street will collect a crowd of them—but have sense enough to keep out of danger. Little children have not acquired that sense, and need protection against their own curiosity. Their parents send them - out to play, and cannot always watch them all the time. Anyone who deliberately left dangerous and unguarded machinery accessible to children would be morally guilty of all injury to them which resulted, and no doubt he would be held in law civilly responsible—perhaps, even, criminally. The cases, however, are not of this nature. Two of the recent ones in the House of Lords concerned haulage machinery, each in a place forbidden to children. They obtained access to it, however, in one case through a gap in a hedge, and the men whose business it was to start the machinery nearly always had the trouble of driving them away before they did so. In each instance a temporary lapse of vigilance resulted in a child being entangled in the machinery and severely injured. One of the cases was from Scotland, and the resulting action failed. The other case was from Wales, and that succeeded. Even- lawyers reading both cases have some difficulty in distinguishing them, and the average layman could hardly be expected to do so.
In a case in America, a manufacturer of chemicals on discontinuing his business had left a pool of apparently clear and attractive water, large enough for a swim, but which was loaded with deadly poisons. This pool was some thirty or forty yards from a road, and some children who found it and plunged into it were killed by the poison. The Supreme Court held that the manufacturer was not liable for their deaths, though some of the judges, including .Chief Justice Taft, late President, dissented.
Possibly the last case was not quite in line with the others, because the trap might as easily have caught adults. In the general run of the others, however, there is quite a good cause of action, and quite a good defence. The cause of action. is doing or failing to do something, the result of such. commission or omission being a trap or allurement to entice little boys and girls into danger. The defence is that all reasonable precautions had been taken to exclude the young trespassers or drive them away from the danger, and the defendant would not fairly be held responsible if the persistence and ingenuity of naughty children brought them into the perils from which others sought to guard them.
Our law, and apparently from the pool case that of the United States also, is judge-made, and has obviously given our Bench considerable trouble. The Scottish case and the Welsh case before quoted, together with an Irish case about a railway turn-table, also decided in the House of Lords, but between twenty and thirty years ago, are difficult to reconcile, and have left sonic con- fusion. On another case in the House of Lords, it was held that a City corporation, which allowed a belladonna plant in a public park to be accessible to children, was responsible when a child ate the berries and died. On the other hand, in an English case which reached the Court of Appeal, the owner of a tenement house was not held liable for the loss of a banister on the stairs, known to his agent, and which was the cause of a little boy falling off the stairs while at play and seriously injuring himself.
These cases indicate that the law needs clarifying. and one or two of them suggest that the protection of children does not go quite far enough. Notably, there should be a duty on the owner of tenement houses to take proper care that the staircases are safe for children. The owner could not fairly be held responsible for danger so recent that neither lie nor his agent could reasonably be expected to know of it, but he should certainly be held responsible for any want of repair of which there had been complaint. In the particular case mentioned, one of the judges, dealing with the point that the danger caused by the missing banister was to children only, gave his opinion that the parents, knoWing the place to be dangerous, should have led their children past it. The corollary of this judgement would be that the mother of half a dozen children, living on the fourth or fifth floor of a tenement house, would have to accompany each child every time it had to go downstairs, and meet each child at the foot of the stairs on returning, until the landlord chose to do the repairs. It is hard to recall any more unreasonable proposition uttered from the Bench by any judge at any time. The question of other " traps " is worth further consideration. Manifestly landowners cannot be expected to protect trespassing children from the dangers of nature such as steep rocks, bogs, deep pools, &c. Dangers artificially created arc, however, on a different footing. Some, such as moving machinery, bright poisonous berries on planted shrubs, bonfires, &c., are allurements. Others, which are not allurements and can be easily seen, like unfenced wells and quarries, may be safe for adults, who see and avoid them, but not for children who may fail to appreciate their peril. Those who read all the cases, especially a number decided in Scotland (the law of the two Kingdoms being practically similar) may deem that, on the run of them, the law does not give children sufficient protection front danger. There is also the difficulty of reconciling some of the most important cases with each other. The matter is thus worth the attention of Parliament, and a Select Committee might be suggested, but it should be instructed to formulate its findings in the shape of a Bill, to prevent their conclusions being indefinitely shelved, and the work thrown away.
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