Since 1908, One Hundred and Forty-Ninth Street, New York City, has been carried over and across the tracks of the New York, New Haven & Hartford Railroad by a public municipal steel truss bridge of standard construction. The bridge is fifty-four feet wide, two hundred and seventy feet long and is formed of posts, beams, girders, etc., connected and strengthened by trellis or lattice work. The top girders, or beams, are twenty-three feet above the street. The local law imposes upon the railroad the duty of maintaining the framework; the municipality is required to keep the roadway in repair.
Fastened to the top girder at the end of the bridge are two upright steel lattice towers, posts or struts. Cross arms attached to these six feet above their bases, support bare wires carrying electric current used for operating trains. The nearest wire is nineteen inches from the strut.
In June, 1916, the plaintiff David Fruchter, eight years old, by using the trellis work climbed from the street to the top of the bridge in quest of a bird's nest. He then saw a bird on the wire above and to catch it climbed up the strut and reached out; the bird flew away; his hand touched the wire and severe injuries resulted. He sued for damages; and the father also seeks to recover for loss of services and expenses incurred. The causes were tried together. The Circuit Court of Appeals affirmed judgments for the plaintiffs February, 1921. 271 Fed. 419.
At the time of the accident the boy was attending school. Whether he could then read the warning words upon the notice boards is left in doubt; upon the witness stand he both affirmed and denied that he could. He further stated that before climbing upon the bridge he looked to see whether a policeman was present, and admitted that if one had been there he would not have gone up.
The court below accepted the theory that the jury could have found the structure was well known to be both dangerous and attractive to children and that failure to supply proper guards, human or mechanical, constituted negligence within the doctrine of Railroad Co. v. Stout, 17 Wall. 657, and Union Pacific Ry. Co. v. McDonald, 152 U.S. 262.
In United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 275, we pointed out the theory upon which liability may
Considering the peculiar circumstances of the present cause, it is clear that if the plaintiff had been an adult he could not recover; and we are unable to find any sufficient evidence from which the jury could have properly concluded that the railroad company either directly or by implication invited or licensed him to climb upon the strut to a point from which he could touch the bare wire thirty feet above the street. The motion for an instructed verdict should have been granted.
The judgment of the court below is reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion.